An anonymous tip as to public details did not support finding of probable cause that the defendant was paying young girls for sex. Nothing corroborated the crime; not even a showing of affection in public with a young female with whom he was seen. Nevertheless, the officer was acting in good faith and qualified immunity protects him from suit. Mason v. City of Indianapolis, 2007 U.S. Dist. LEXIS 67349 (S.D. Ind. September 11, 2007)*:

While this court has determined that probable cause was lacking to issue the search warrant, there is nothing in this case to indicate that the officers did not act in good faith in their investigation of Mason or in preparing the probable cause affidavit.

Comment: This inquiry is missing the last step. Sure it was in good faith. The question is whether it was “arguable probable cause” and the court fails to ever address it. One could conclude that it was wholly lacking in probable cause, notwithstanding good faith. Officers often are acting in good faith, but completely wrong. Their “good faith” is really just overzealousness, and that was about all there was here. Whether this will withstand appeal is another matter because the appellate court might make the determination itself that the officer had arguable probable cause. At any rate, this case needs to be appealed.

Officers who were called to a doctor’s office when he was on vacation and saw blasting caps, ammunition, and similar paraphernalia, all from a private search, got a warrant for the doctor’s home. While the blasting caps were not explosive devices under Texas law and a search warrant should not have issued, the officer’s actions were objectively reasonable in reliance on it. Therefore, the district court erred in not granting them qualified immunity. Zarnow v. City of Wichita Falls, 500 F.3d 401 (5th Cir. 2007).*

Consent search led to seeing corner of package of drugs sticking out of glove box. A dog was brought in and then alerted, and the search of the glove box was justified by practically everything that happened. United States v. Oates, 514 F. Supp. 2d 1131 (D. Conn. 2007).*

Plaintiff’s action against his probation officers for excessive force and unlawful search and seizure failed because they had reasonable suspicion for their actions, including pulling a gun on plaintiff because they thought he was armed and he reached for his back pocket. Taking the claims most favorably to the plaintiff, he could not prevail. Smith v. Dauphin County Adult Prob. Dep’t, 2007 U.S. Dist. LEXIS 67400 (M.D. Pa. September 12, 2007).*

A reasonable belief that the person named in the arrest warrant is inside is all that is required for qualified immunity in a civil case over the alleged unlawful entry. This is a question left unanswered by both Payton and Steagald. Solis-Alarcon v. United States, 514 F. Supp. 2d 185 (D. P.R. 2007):

What neither Payton nor Steagald address is what occurs when the police mistakenly believe that the house in which they seek to execute the arrest warrant is the arrestee’s residence. Several circuits have addressed that vacuum, among them the Tenth Circuit, which has stated:

In a Payton analysis, this court recognizes a two-prong test: officers must have a reasonable belief the arrestee (1) lived in the residence, and (2) is within the residence at the time of entry. Valdez v. McPheters, 172 F.3d 1220, 1224-25 (10th Cir. 1999) (rejecting argument “reasonable belief” standard is the equivalent of “probable cause”). Thus, whether Steagald or Payton applies is resolved under the first prong of the test.

U.S. v. Gay, 240 F.3d 1222, 1226 (10th Cir. 2001).

A number of circuits–the Second, Third, Fifth, Sixth, Eighth, Eleventh, and D.C. Circuits–are in accord that the police will have acted in a manner consistent with Payton so long as they have a reasonable belief that the person for whom they have an arrest warrant resides at the home where they seek to execute the warrant and is present therein at the time. See, U.S. v. Barrera, 464 F.3d 496 (5th Cir. 2006); U.S. v. Pruitt, 458 F.3d 477 (6th Cir. 2006); U.S. v. Thomas, 368 U.S. App. D.C. 285, 429 F.3d 282 (D.C. Cir. 2005); U.S. v. Bervaldi, 226 F.3d 1256 (11th Cir. 2000); U.S. v. Lovelock, 170 F.3d 339 (1999); U.S. v. Route, 104 F.3d 59 (5th Cir. 1997); U.S. v. Risse, 83 F.3d 212 (8th Cir. 1996); U.S. v. Magluta, 44 F.3d 1530 (11th Cir. 1995); U.S. v. Lauter, 57 F.3d 212 (2nd Cir. 1995); U.S. v. Edmonds, 52 F.3d 1236 (3rd Cir. 1995), vacated in part on other grounds, 80 F.3d 810 (3rd Cir. 1996). The Ninth Circuit adheres to a stricter view, requiring the equivalent of probable cause to believe that the arrestee lives at a residence and is present therein at the time the police seek to execute the arrest warrant. See, U.S. v. Gorman, 314 F.3d 1105 (9th Cir. 2002). See also, U.S. v. Harper, 928 F.2d 894 (9th Cir. 1991) (requiring probable cause to believe that the subject of arrest warrant lives at a residence in order to execute the arrest warrant at that residence.). While the First Circuit has yet to face this issue, it has made some statements in passing that lend support to the reasonable belief standard espoused by the Second, Third, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits. See, U.S. v. Weems, 322 F.3d 18, 22 (1st Cir. 2003) (citing U.S. v. Gay, 240 F.3d 1222); U.S. v. Calderon, 77 F.3d 6, 9 n.1 (1st Cir. 1996) (leaving open the possibility that the resident’s consent to the search was not necessary and noting that the police believed that the purported arrestee, for whom the police had an arrest warrant, also lived at the residence; citing U.S. v. Lauter, 57 F.3d 212).

Sixth Circuit again declines to apply the “automatic companion” rule to affirm suppression of evidence obtained by a patdown of a passenger when the driver was in possession after his patdown. There was no independent justification for the passenger’s search. The driver admitted to having a prior firearms conviction before his patdown. United States v. Wilson, 506 F.3d 488, 2007 FED App. 0434P (6th Cir. 2007):

Although this court ultimately held that the search of Bell [in United States v. Bell, 762 F.2d 495 (6th Cir. 1985)] was not in violation of his Fourth Amendment rights, it expressly declined to adopt a so-called “automatic companion” rule whereby any companion of an arrestee would be subject to a “cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.” Id. at 498 (citation omitted). “As to the propriety of the ‘automatic companion’ rule, we do not believe that the Terry requirement of reasonable suspicion under the circumstances … has been eroded to the point that an individual may be frisked based upon nothing more than an unfortunate choice of associates.” Id. at 499 (citation omitted). It further concluded that an “automatic companion” rule would be inconsistent with the Supreme Court’s stated policy of carefully maintaining the “narrow scope of Terry’s exception to the warrant requirement.” Id. (citation and quotation marks omitted).

This court instead upheld the search in Bell on the basis that there were “specific articulable facts known to Agent Snyder at the time he approached the passenger side of the Cadillac, as well as rational inferences therefrom, which might reasonably support the perception that Bell posed a risk to the security of the officers.” Id. at 500. These facts included Agent Snyder’s knowledge that Cherry, the target of the arrest warrant, was suspected of being armed and dangerous because narcotics transactions often involve weapons. Id. Moreover, the agents were advised in advance of the execution of the warrant that Cherry had been seen with an accomplice. Id. at 501. The court thus noted that Bell’s presence as a passenger, “while not itself justifying a frisk, was permissibly considered in analyzing whether there was reasonable cause to believe that Bell was potentially armed and dangerous.” Id. For these and other reasons not relevant to the present case, the court concluded that, under the “totality of the circumstances test,” the pat-down search of Bell did not violate the Fourth Amendment. Id. at 502.

Contrary to the government’s argument, the facts in the present case are not analogous to the totality of the circumstances that existed in Bell. The driver of the vehicle in Bell was known to be potentially armed and dangerous because he was a drug dealer, and the very purpose of the stop was to arrest that driver. Moreover, the driver was known to have been traveling with an accomplice. This is a totally different fact pattern from that in the present case, where Jones and Wilson were pulled over simply because they were not wearing their seat belts, a minor traffic violation. Jones’s spontaneous admission that he had served time on a federal gun charge does not suggest that “Jones was potentially armed.” If anything, the admission at that point in the traffic stop suggests cooperation with authorities, not resistance. Had Jones intended to draw a gun on the officers, it is unlikely that he would have been so forthcoming about his prior conviction.

“Child sex” is too vague for a search warrant for child pornography. The police responded to a meth lab explosion and they saw indications of possible child porn, and they sought a telephonic search warrant for evidence of “narcotics/child sex.” State v. Reep, 161 Wn.2d 808, 167 P.3d 1156 (2007):

¶14 The search warrant at issue authorized seizure of any evidence supporting the suspected criminal activity of “Narcotics/Child Sex.” Pl.’s Ex. C. Specifically, the warrant provides:

Jason Mayse of the Pasco Police Department stating under oath that he has probable cause to believe that certain evidence to the crime of: Narcotics/Child Sex, namely:

Muratic Acid, Tulane, Metal Bowls, Burners, Glassware, And Other Precursors Consist [sic] With The Production Of Meth; And Any Data Storage Devices to Include A Computer And Its Hardware, Compact Discs, Floppy Discs, Portable Storage Units Such As USB [universal serial bus]Accessible Devices, Digital Cameras, Video Cameras, Photographs, Any Documentation of Criminal Activity By the Suspect And Other Evidence Not Listed that Support the Suspected Criminal Activity.

Id.

¶15 In Perrone, 119 Wn.2d at 542, the defendant was charged with one count of dealing in depictions of minors engaged in sexually explicit conduct, RCW 9.68A.050(2), and one count of possession of depictions of minors engaged in sexually explicit conduct, RCW 9.68A.070. The defendant challenged the validity of the search warrant authorizing seizure of “‘[c]hild or adult pornography.’” Perrone, 119 Wn.2d at 543.

¶16 The Perrone court struck down the warrant for insufficient particularity, noting “child pornography, like obscenity, is expression presumptively protected by the First Amendment.” Id. at 550 (emphasis added) (citing United States v. Hale, 784 F.2d 1465, 1469 (9th Cir. 1986)). And “[w]here a search warrant authorizing a search for materials protected by the First Amendment is concerned, the degree of particularity demanded is greater than in the case where the materials sought are not protected by the First Amendment.” Id. at 547. Stated another way, such warrants must follow the Fourth Amendment’s particularity requirement with “‘scrupulous exactitude.’” Id. at 550 (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965)).

¶17 Per the United States Constitution’s demand for increased particularity, this court pronounced the term “‘child … pornography’” invalid for insufficient particularity as it left the officer with too much discretion in deciding what to seize under the warrant. Id. at 553 (alteration in original). The court observed the term “is an ‘omnibus legal description’ and is not defined in the statutes.” Id. Furthermore, reasoned the court, “‘child … pornography’” is analogous to “‘obscenity,’” a term insufficiently particular to satisfy Fourth Amendment standards. Id.

¶18 Turning to the search warrant in the present case, the fictitious crime of “child sex” is even broader and more ambiguous than the term “child … pornography.” Consequently, the warrant allows the officer unbridled discretion to decide what things to seize and most critically, permits the seizure of items which may be constitutionally protected, such as pornographic drawings of children. Id. at 551. As such, the warrant at issue fails for insufficient particularity.

Comment: The part of the holding that child pornography is presumptively protected under the First Amendment may lead to a cert petition, and it has a better than average chance of being granted.

Availability of telephonic search warrant militated against the state’s exigency argument in DUI case for warrantless blood draw. State v. Shriner, 739 N.W.2d 432 (Minn. App. 2007):

The question then becomes whether in this proceeding there are factors, together with the suspected presence of alcohol, that constitute exigent circumstances sufficient to justify the warrantless blood draw. We employ a totality-of-the-circumstances approach. Here, Shriner was arrested at her vehicle one-half mile from Fairview Ridges Hospital. Officer Yakovlev quickly transported Shriner to that hospital and a blood draw was made less than 45 minutes after she was last in the driver’s seat of her vehicle. He did not give her the implied-consent advisory or seek her consent to the draw. Officer Yakovlev did not believe that Shriner was injured, did not have responsibility for any other person injured as a result of the accident, and did not have a crime scene that required his attention. He was able to focus on acquiring evidence of Shriner’s intoxication. Based on a two-hour rule to establish guilt under Minn. Stat. §§ 169A.20, subd. 1(5) (2004), and 609.21, subd. 2b(4) (2004), the question becomes whether a warrant could reasonably have been obtained within a timeframe that would not have compromised the test results.

The process for obtaining a search warrant is set out in the statutes and court rules. See Minn. Stat. §§ 626.04 to .18 (2006); Minn. R. Crim. P. 36. Although the prosecuting attorney often handles the application for a search warrant, law enforcement may apply directly to the judge. See, e.g., State, City of Minneapolis v. Cook, 498 N.W.2d 17, 18-19 (Minn. 1993); State v. McGrath, 706 N.W.2d 532, 537 (Minn. App. 2005). In this case, it was evening. The Burnsville police officers may have had to contact a prosecuting attorney at home to prepare a warrant request. Next, law enforcement would have had to locate a judge, request a warrant, obtain the warrant, and then provide evidence of the warrant to the staff at the Fairview Ridges Hospital to authorize the nonconsensual blood draw. This takes expeditious action.

Minnesota law authorizes the use of telephonic warrants. See Minn. R. Crim. P. 36.01. Caselaw has recognized the availability and validity of telephonic search warrants. See, e.g., State v. Lindsey, 473 N.W.2d 857 (Minn. 1991). In State v. Raines, 709 N.W.2d. 273, 275 (Minn. App. 2006), review denied (Minn. Apr. 18, 2006), police officers requested a telephonic warrant at 3:10 a.m. in Pine County. The warrant was executed within one hour and fifty minutes. Id. And in State v. Cook, 498 N.W.2d 17, 18-19 (Minn. 1993), a judge issued a telephonic search warrant less than one hour after the request for the warrant was made. Here, the state has made no showing that it would have been unable to obtain a timely telephonic search warrant.

Comment: The significance of this issue cannot be understated: In any state with a telephonic warrant system, it can be argued that a telephonic warrant militates against exigent circumstances. Tie this to the presumption favoring search warrants, and it can be persuasively argued that exigent circumstances are severely limited to true emergencies where there isn’t even time to call for a telephonic warrant.

911 call provided basis for stop because of indicia of reliability. Commonwealth v. Rodriquez, 70 Mass. App. Ct. 904, 873 N.E.2d 1221 (2007):

The 911 calls established both the basis of the caller’s knowledge and his reliability. The caller identified himself as a driver for Community Taxi; apprised police that his vehicle had just been struck by another vehicle at a defined location; described in detail the offending vehicle and the direction in which it had driven off; and indicated that he was in pursuit. Within a few minutes, Manninen observed the described vehicle stopped in traffic a short distance away. More was not required to render the caller reliable and provide Manninen with reasonable suspicion to stop the vehicle.

Consent granted during a detention without reasonable suspicion to consent and merely endure a 5 minute search or wait 20-25 minutes for a drug dog was not voluntary. Lieblong v. State, 2007 Ark. App. Lexis 662 (October 3, 2007).

Odor of marijuana obvious on the porch of defendant’s house was probable cause. Use of drug dog on the porch was irrelevant. State v. Pereira, 967 So. 2d 312 (Fla. App. 3DCA 2007).*

Neither probable cause nor reasonable suspicion is required to test an accused sex offender for HIV or Hepatitis B. State v. Houey, 375 S.C. 106, 651 S.E.2d 314 (2007):

Where the privacy interests implicated by the search are minimal, and where an important non-criminal governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. Skinner, supra at 624. Such is the case here. The State’s interest in these cases would be jeopardized by requiring individualized suspicion because it would be nearly impossible to show probable cause that an offender suffers from HIV or Hepatitis B, since neither disease usually manifests clear outward symptoms. Thus, the statute does not violate the Fourth Amendment by failing to require probable cause that the offender has HIV or Hepatitis B before a court may order testing pursuant to § 16-3-740(B).

Informant’s credibility was enhanced by the fact he was subject to criminal penalties if he lied to the officers. State v. Tarver, 2007 Ohio 4659, 2007 Ohio App. LEXIS 4197 (4th Dist. September 7, 2007).* (Comment: Like a snitch would ever be prosecuted for that. Another legal fiction indulged in by the courts. I have never heard of it happening, so that proves it is a bogus rationale.).

An officer’s pointing a gun at plaintiff to get him to comply with an order to stop was not excessive force, and the officer gets qualified immunity. Tyler v. Kyler, 15 Neb. App. 939, 739 N.W.2d 463 (2007).*

Once the purpose of a traffic stop is complete, an officer may not ask about searching a car without some justification. State v. Jenkins, 104 Conn. App.
417, 934 A.2d 281 (2007):

Third, to conclude that the record is inadequate on this issue creates the implication that a police officer, during a routine motor vehicle stop made on the basis of a driving infraction, is authorized to make arbitrary requests for consent searches that are wholly unrelated to the initial purpose of the stop and unsupported by additional suspicion justifying the expansion of the stop, so long as the officer chooses not to conclude the encounter. Such a blanket authorization is contrary to our search and seizure jurisprudence, which generally proscribes such arbitrary conduct on the part of the police. See State v. Nash, 278 Conn. 620, 631, 899 A.2d 1 (2006) (“[t]he police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries” [internal quotation marks omitted]).

Moreover, to conclude otherwise also creates an implication that, during a routine motor vehicle stop, a defendant may not contest the validity of a consent to search unless the officer’s request for consent occurs after the officer has returned the defendant’s license and the ticket. In State v. Story, 53 Conn. App. 733, 741, 732 A.2d 785, cert. denied, 251 Conn. 901, 738 A.2d 1093 (1999), this court concluded that a police officer’s request for consent to search on the basis of nothing more than a hunch was not improper because the officer did not request the consent to search until after the stop had concluded and the defendant was free to leave at the time of the request. Mindful of Story, if we now sanction arbitrary requests for consent searches by the police prior to the conclusion of a stop, we effectively close the door on a criminal defendant’s ability ever to contest the validity of a consent to search during a motor vehicle stop.

On the basis of the record, we conclude that Morgan’s inquiry as to whether the defendant was engaged in illegal activity went beyond the scope of the traffic stop and occurred at a time when the stop reasonably should have ended. Having reached that conclusion, we now must determine whether Morgan had reasonable, articulable suspicion to expand the scope of the stop by questioning the defendant about illegal activity unrelated to the purpose of the underlying stop. See United States v. Santiago, supra, 341-42 (“Once a computer check is completed and the officer either issues a citation or determines that no citation should be issued, the detention should end and the driver should be free to leave. … In order to continue a detention after such a point, the officer must have a reasonable suspicion supported by articulable facts that a crime has been or is being committed.” [Citation omitted.]).

A store sales clerk was a citizen informant on an identity theft and forgery attempt. The police stopped defendant’s car after she left Best Buy based on the sales clerk’s report. Defendant returned to Best Buy, and the car was searched there incident to an impending impoundment for driving on a fake driver’s license, the one associated with the identity theft. The search was justified as a search incident, so the inventory issue did not need to be reached. Cobbs v. State, 2007 Ark. App. LEXIS 802 (November 14, 2007)* (unpublished).

A defendant accused as an internet traveler for enticement of a minor under 18 U.S.C. § 2422(b) who said “that he was going to bring condoms, an iPod and a black nightie to his liaison” in his chat sessions justified a search of the car when he showed up. United States v. Collins, 515 F. Supp. 2d 891 (N.D. Ind. 2007).

Randolph does not require that the defendant be asked for consent first.
United States v. Lopez, 2007 U.S. Dist. LEXIS 66937 (D. Conn. September 12, 2007).*

Merely knocking on the door is not a police created exigency. The officers had credible evidence that defendant fled into a motel room with a gun. United States v. Bullock, 2007 U.S. Dist. LEXIS 67098 (W.D. Pa. September 11, 2007):

Here, it was reasonable for the officers to conclude that evidence could be destroyed, that an injured victim or accomplice could be inside the room, or that the officers or other people inside the hotel were in danger. Although there was an intense police presence inside, and around the hotel, such that defendant likely could not have left the hotel undetected, it is possible that evidence, such as blood evidence, could have been destroyed inside the hotel room. In addition, defendant’s demeanor, his being connected to the crime scene by an inhaler, the blood on the carpet outside his door, and a gun missing from the scene of the shooting could all lead the officers to reasonably conclude that a person inside the room was in distress, or that the hotel guests and officers, could be in danger. For all these reasons, the officers’ entry into the room was justified by exigent circumstances.

Not putting on evidence at a suppression hearing is not IAC where there was no showing as to what should have been put on that was not that would influence the outcome. Berthelot v. United States, 2007 U.S. Dist. LEXIS 67070 (E.D. Tex. September 10, 2007). (Comment: This merely states the obvious. In many search issues, the only evidence to come directly from the defendant is standing, and even that can often be proved through the officers.)

The government sought an order for access to all post-cut-through dialed digits under pen/trap statute. A U.S. M.J. for the E.D. N.Y. held such an order would violate the Fourth Amendment. “Despite the investigative benefit which would come from access to all PCTDD, the Government cannot bootstrap the content of communications, protected by the Fourth Amendment, into the grasp of a device authorized only to collect call-identifying information. Until the Government can separate PCTDD that do not contain content from those that do, pen register authorization is insufficient for the Government to obtain any PCTDD.” In the Matter of Applications of the United States of America for Orders (1) Authorizing the Use of Pen Registers and Trap and Trace Devices and (2) Authorizing Release of Subscriber Information, 515 F. Supp. 2d 325 (E.D. N.Y. 2007):

The Government also argues that there is no reasonable expectation of privacy in PCTDD because the information is voluntarily conveyed to a third party, the telephone company. This assumption of risk argument has been adopted by the Supreme Court in a variety of contexts. See, e.g., United States v. Miller, 425 U.S. 435, 442-44 (1976) (no legitimate expectation of privacy in bank records); Couch v. United States, 409 U.S. 322, 335-36 (1973) (no legitimate expectation of privacy in financial records submitted to taxpayer’s accountant); United States v. White, 401 U.S. 745, 752 (1971) (no legitimate expectation of privacy in taped conversations to third party). It was also a component of the majority’s reasoning in Smith.

“In Smith, the Court noted that all telephone users realize that they must ‘convey’ telephone numbers to the telephone company so that their calls can be completed, that records of their calls are kept for billing purposes, and that such records can be used to detect fraud and harassment and thus [are] potentially available to law enforcement and other investigators.” Beckwith v. Erie County Water Authority, 413 F. Supp. 2d 214, 223 (W.D. N.Y. 2006) (citing Smith, 442 U.S. at 742). When the petitioner in Smith “used his phone, [he] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.” Smith, 442 U.S. at 744. Under this logic, even if a person harbored some subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as reasonable.” Katz, 389 U.S. at 361.

Miller also addresses the Fourth Amendment and the risk assumed when information is conveyed to an institutional third party. 425 U.S. 435. In Miller, the Supreme Court rejected a defendant’s challenge to the use of grand jury subpoenas to obtain banking records from his bank, concluding that no legitimate expectation of privacy existed in the contents of the bank records. Id. at 442. An individual “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.” Id. at 443. The Court reasoned: “All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Id. at 442 (emphasis added).

The Government argues for an extension of the logic behind these cases, but ignores the important distinctions between them and the instant application for PCTDD. Unlike the dialed digits discussed in Smith and the bank records addressed in Miller, PCTDD are not kept in the “ordinary course of business,” see Smith at 744 and Miller at 442, nor do they appear on a user’s monthly bill. The Government argues that these distinguishing facts are inconsequential and that by dialing digits into a phone, a telephone user has “assumed the risk” that the telephone company, capable of accessing all digits dialed, will do just that and relinquish the information to the Government.

The Sixth Circuit recently spoke to this issue in the context of email content and held that: “It is true … that by sharing communications with someone else, the speaker or writer assumes the risk that it could be revealed to the government by that person, or obtained through a subpoena directed to that person.” Warshak v. United States, 490 F.3d 455, 470 (6th Cir. 2007). However, “[t]he same does not necessarily apply … to an intermediary that merely has the ability to access the information sought by the government.” Id. Indeed, the “assumption of risk” so trumpeted by the Government, is far from absolute. “Otherwise phone conversations would never be protected, merely because the telephone company can access them; letters would never be protected, by virtue of the Postal Service’s ability to access them; the contents of shared safe deposit boxes or storage lockers would never be protected, by virtue of the bank or storage company’s ability to access them.” Id. These consequences of an extension of the assumption of risk doctrine are not acceptable under the Fourth Amendment. A caller “‘is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world,’ and therefore cannot be said to have forfeited his privacy right in the conversation.” Warshak, 490 U.S. at 470 (citing Katz, 389 U.S. at 352). The same can be said for PCTDD that contain content.

. . .

C. Level of Intrusion

“Courts judge the reasonableness of a search ‘by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.'” Cassidy v. Chertoff, 471 U.S. at 652-53 (citing Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 652 (1995) (internal quotation marks omitted)). Thus, the level of intrusion is a factor to be considered when addressing constitutionality under the Fourth Amendment.

“[S]uspicionless searches … are highly disfavored since they dispense with the traditional rule that a search, if it is to be deemed reasonable, must be either supported by a warrant based on probable cause, or justified by evidence establishing individualized suspicion of criminal misconduct.” United States v. Amerson, 483 F.3d 73, 77-78 (2d Cir. 2007) (citing City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (“A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.”)). Government installed pen registers were held to be permissible warrantless searches in Smith because, by their nature (their inability to collect content), they were minimally intrusive. Today’s pen registers, as advocated by the Government in the instant application, have the potential to be much more intrusive than when their constitutionality was first examined. The evolution of technology and the potential degree of intrusion changes the analysis.

. . .

I am sympathetic to the Government’s pleas of necessity. That there is no technology available that can sort content from non-content is unfortunate, but it is not for this Court to fashion a solution. Rather, this is an issue for Congress to address, particularly in light of sophisticated criminals who will soon be wise, if they are not already, to this investigative loophole. Despite the investigative benefit which would come from access to all PCTDD, the Government cannot bootstrap the content of communications, protected by the Fourth Amendment, into the grasp of a device authorized only to collect call-identifying information. Until the Government can separate PCTDD that do not contain content from those that do, pen register authorization is insufficient for the Government to obtain any PCTDD.

III. CONCLUSION

Because the Government’s request for access to all post-cut-through dialed digits is not clearly authorized by the Pen/Trap Statute, and because granting such a request would violate the Fourth Amendment, the Government’s application is denied.

Defendant sent a letter from jail seeking perjury at trial from one of his friends. The letter was returned as undeliverable, and it was opened on return to the jail and read. There is no Fourth Amendment right to not have nonprivileged letters to the jail go unopened or unread. Commonwealth v. Thompson, 2007 PA Super 304, 934 A.2d 1281 (2007), quoting Commonwealth v. Moore, 2007 PA Super 207, 928 A.2d 1092, 1102 (Pa. Super. 2007):

Although prison walls do not separate inmates from their constitutional rights, because of the unique nature and requirements of the prison setting, imprisonment carries with it the circumscription or loss of many significant rights … to accommodate a myriad of institutional needs … chief among which is internal security. Prisoners have used the mail to transport contraband into and out of prison, to discuss and participate in ongoing criminal activity, and to coordinate escape plans. An unrestricted privacy interest in non-privileged mail would assist criminal objectives by facilitating the transmission of information. On the other hand, prisoners must appreciate the inherent loss of privacy in a prison, where security and surveillance obviate any legitimate expectation of privacy.

The Court went on to hold that a prisoner has no constitutional right to privacy in his non-privileged mail.

Defendant’s second statement to the police after his first appearance in court where he identified a witness that the police had not heard of before was sufficiently attenuated from the primary illegality under Wong Sun and Ceccolini. State v. Kirkman, 2007 Tenn. Crim. App. LEXIS 797 (October 10, 2007):

Application of the “independent means” or “degree of attenuation” test established by the Supreme Court in Wong Sun and further illuminated in Ceccolini leads us to conclude that the items recovered from the convenience store dumpster–which were not mentioned in the defendant’s initial statement to police–were sufficiently purged of the taint of the defendant’s illegal arrest and were therefore admissible. Fiveash was discovered through the defendant’s initial, illegally obtained statement, and nothing appears in the record to suggest that the police would have discovered Fiveash absent the defendant’s statement. However, the police contacted Fiveash several hours after the defendant’s arrest and initial statement to police. Furthermore, Fiveash could have refused to talk to police, but she instead chose to cooperate. No evidence exists to suggest that Fiveash’s statements to police were coerced or otherwise involuntary. Additionally, after police discovered the location of the dumpster, the police requested, and were granted, permission to search the dumpster. The police ultimately recovered the dumpster items based upon the independent decisions of Fiveash to talk to police and of the convenience store worker to permit police to search the store’s dumpster. These independent decisions serve as sufficient attenuation to purge the evidence recovered from the dumpster of the taint of the defendant’s illegally obtained statement. Thus, this evidence was properly admitted into evidence.

Plaintiffs stated claims for relief for their arrests at a 2004 political rally for President Bush where they claim they were arrested for their political views. McCabe v. Macaulay, 515 F. Supp. 2d 944 (N.D. Iowa 2007). On the First Amendment claim of arrest for free speech:

The Plaintiffs’ version of the events of September 3, 2004 is set forth at length in Part IV of the instant Order and need not be restated here. It suffices to say that, when Plaintiffs are afforded all reasonable inferences, the facts show that Plaintiffs’ First Amendment rights were violated. Specifically, a reasonable jury could find that Macaulay ordered the arrests of Plaintiffs simply because he disagreed with their political viewpoints.

If a jury were to believe Plaintiffs and disbelieve the law enforcement officers, a reasonable jury could find that Plaintiffs were silent, respectful and well-mannered at all times and were peacefully protesting President Bush and his policies in a public place, a sidewalk. Where, as here, the sidewalk was not cordoned off and there was no visible indication that the sidewalk was a restricted area, Plaintiffs were entirely justified in standing on the sidewalk until Parker ordered them to move. See, e.g., Grace, 461 U.S. at 180 (holding that sidewalks surrounding Supreme Court’s building were public fora, because “[t]here is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave”). A reasonable jury could also then find that Plaintiffs repeatedly and fully complied with the various law enforcement officers’ orders to first move off the sidewalk and then move off of the strip of grass between the north sidewalk and 42nd Street NE once they were informed that such restrictions were in force. The court knows of no law that forbids Plaintiffs from politely requesting the identification of plainclothes officers and then asking why protestors were being asked to move and non-protestors were not. To the contrary, the Supreme Court long ago recognized:

[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers …. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.

City of Houston v. Hill, 482 U.S. 451, 461, 462-63 (1987).

A reasonable jury would not have to rely solely on Plaintiffs’ own testimony to find that Macaulay targeted them on account of their viewpoint. Several third-party witnesses, a number of photographs and a videotape of the immediate aftermath of Plaintiffs’ arrests tend to corroborate Plaintiffs’ claims and contradict the claims of some of the law enforcement officers.

. . .

Having found that the facts, when taken in the light most favorable to Plaintiffs, show Macaulay’s conduct violated Plaintiffs’ First Amendment rights, the court turns to consider whether such rights were clearly established in light of the specific context of the case. Scott, 127 S. Ct. at 1774. It was abundantly clear at the time of the Rally that the First Amendment would not tolerate a federal law enforcement officer commanding state law enforcement officers to arrest a person based upon the content of their speech. …

On the Fourth Amendment claim, the court held that there was no arguable probable cause that plaintiffs violated any law of obstructing state or federal officers in the performance of their duties:

As indicated, a reasonable jury could find that Plaintiffs repeatedly and fully complied with the various law enforcement officers’ orders to first move off the sidewalk and then move off the strip of grass between the north sidewalk and 42nd Street NE. [18 U.S.C.] Section 3056 requires proof that the defendant “knowingly” and “willfully” “obstruct[ed], resist[ed], or interfer[ed] with” a Secret Service agent. Viewed in the light most favorable to Plaintiffs and affording them all reasonable inferences, the facts do not show any such actions on the part of Plaintiffs.

. . .

Here, Plaintiffs were not in a posted or cordoned off area when they were standing on the sidewalk near the Bus Entrance. At most, they were unwittingly standing in an “otherwise restricted area of a … grounds where the President … [would] be temporarily visiting.” Id. However, on Plaintiffs’ version of the facts, there is no evidence that Plaintiffs willfully and knowingly entered or remained in such a restricted area. Instead, Plaintiffs fully complied with the law enforcement officers’ orders to move, once the law enforcement officers notified them of the security restrictions in place.

. . .

Having found that the facts, when taken in the light most favorable to Plaintiffs, show Macaulay’s conduct violated Plaintiffs’ Fourth Amendment rights, the court turns to consider whether such rights were clearly established in light of the specific context of the case. Scott, 127 S. Ct. at 1774. For the most part, Macaulay does not challenge the clearly established nature of Plaintiffs’ Fourth Amendment rights on the facts as presented in this order. See, e.g., Barham, 434 F.3d at 575-76 (D.C. Cir. 2006); MacKinney, 69 F.3d at 1007.

Macaulay does specifically argue that Plaintiffs’ Fourth Amendment rights cannot be “clearly established,” because there is little existing precedent on some issues under Iowa Code section 719.1(1). See Lawyer, 361 F.3d at 1108 (lamenting “lack of detailed judicial guidance on the interplay among the statutory terms ‘obstruct,’ ‘resist,’ and ‘verbal harassment'” in Iowa Code 719.1(1)). Even if Iowa Code section 719.1(1) is not a model of clarity, however, it was abundantly clear at the time of the Rally that the Fourth Amendment would not tolerate a federal law enforcement officer commanding state law enforcement officers to arrest a person based upon the content of her speech. Macaulay’s apparent interpretation of the statute, which would criminalize asking law enforcement officers polite questions, is plainly unconstitutional under the First Amendment and wholly incompatible with precedent.

Six Imams stated a claim for relief for being taken off a flight and detained for hours for questioning for no apparent reason other than praying in the gate area in Arabic before the flight [they obviously needed to pray before flying U.S. Air] and one in first class, upgraded for being a frequent flyer, walking back to offer his seat to one of his traveling companions which was declined, and one needed a seatbelt extension. The FBI questioned them, determined that they were not a security threat, and let them go, after hours of questioning. They stated a claim that there was no probable cause to believe that they were going to interfere with a flight crew in violation of 49 U.S.C. § 46504 that resulted in their detention. After that, U.S. Air barred them from ever flying on the airline. They had flown from Phoenix to Minneapolis for a conference and were returning when detained. Shqeirat v. United States Airways Group, 515 F. Supp. 2d 984 (D. Minn. 2007).*

The use of a dog to restrain the plaintiff was not excessive force where the dog was ordered to let go as soon as plaintiff was restrained. Williams v. Wheeler, 2007 U.S. Dist. LEXIS 85781 (S.D. Ind. November 19, 2007):

The record shows that excessive force was not used in apprehending Williams or in effectuating his arrest. This is apparent from the following circumstances:

. Williams had fled from police both in a vehicle and on foot.

. Williams concealed himself in order to avoid detection and apprehension.

. Williams refused to identify himself, refused to reveal whether he was armed, and refused directions from Officer Waters to surrender himself.

. Williams refused to surrender despite having been informed that if he did not do so the police canine would be used.

. Although the canine was used and placed a hold on Williams, biting him in the process, the canine was ordered to release his hold as soon as Officer Waters was able to control Williams. The canine immediately complied with the order to release Williams once that order was given.

The use of force to apprehend Williams was justified. The force used was not excessive either in relation to the type of force used or the manner in which it was used. See Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) (force that is reasonable while suspect poses threat is no longer reasonable once threat is no longer present).

“Consistent with the decisions of other federal courts to consider the issue, we hold that police possessing a valid bench warrant for the arrest of a person who has failed to appear may enter that person’s residence to the extent necessary to execute the warrant” even for a misdemeanor under Payton. United States v. Gooch, 506 F.3d 1156 (9th Cir. 2007):

The Ninth Circuit has not previously had occasion to decide whether a misdemeanor bench warrant for failure to appear–as opposed to a felony arrest warrant–is sufficient to permit entry into a residence under Payton. The Second Circuit, however, in United States v. Spencer persuasively reasoned that the Court’s decision in Payton permits entry into a residence to effectuate a valid arrest warrant, regardless of the precise nature of the underlying warrant. 684 F.2d 220, 223 (2d Cir. 1982), cert. denied, 459 U.S. 1109, 103 S. Ct. 738, 74 L. Ed. 2d 960 (1983). Rejecting an argument identical to the one that Gooch makes here–that a misdemeanor bench warrant not premised on a formal finding of probable cause does not lie within Payton‘s reach–the Second Circuit explained:

The decision of the New York City Criminal Court Judge to issue a bench warrant constituted a finding made by a neutral magistrate that [the defendant] had failed to appear in a pending criminal matter. We recognize that its issuance did not amount to a judicial finding of probable cause to arrest in the traditional sense …. Nonetheless, the police, armed with the warrant, had authority to find and seize [the defendant] anywhere they could find him for his failure to appear in court. Thus, the presence of the police in the defendant’s room was pursuant to a direction made by a neutral magistrate. Defendant’s rights under the Fourth Amendment require no more.

684 F.2d at 223 (citing Payton, 445 U.S. at 582 n.17, 586 n.24); see also id. at 223-24 (“[T]he courts, in striving to safeguard a suspect’s Fourth Amendment rights when he is arrested at home, emphasized the necessity that a warrant be issued by a neutral magistrate. . . . In determining reasonableness, the nature of the underlying offense is of no moment.”).FN1

1. The holding in Spencer, permitting entry into a residence based on a misdemeanor arrest warrant or a bench warrant for failure to appear, has been followed in similar cases with near uniformity by the federal courts. See Shreve v. Jessamine County Fiscal Court, 453 F.3d 681, 689 (6th Cir. 2006); United States v. Clayton, 210 F.3d 841, 843-44 (8th Cir. 2000); Cogswell v. County of Suffolk Deputy Sheriff’s Dept., 375 F. Supp. 2d 182, 187-88 (E.D.N.Y. 2005); United States v. Ray, 199 F. Supp. 2d 1104, 1112-13 (D. Kan. 2002); Smith v. Tolley, 960 F. Supp. 977, 991-92 (E.D. Va. 1997); Heine v. Connelly, 644 F. Supp. 1508, 1514-15 (D. Del. 1986).

We find the reasoning of Spencer persuasive, and affirm the district court’s denial of Gooch’s motion to suppress. We hold that a valid arrest warrant issued by a neutral magistrate judge, including a properly issued bench warrant for failure to appear, carries with it the limited authority to enter a residence in order to effectuate the arrest as provided for under Payton. The Fourth Amendment presumption against warrantless entries into the home is designed to protect privacy interests against uncabined police discretion. Payton, 445 U.S. at 586 (“[W]e have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions [into the home].”). Those interests are sufficiently safeguarded when an entry is premised on the execution of a valid arrest warrant issued by a judge or magistrate, regardless of whether that warrant is for a felony, a misdemeanor, or simply a bench warrant for failure to appear. Here, the police held a valid warrant for Conn’s arrest, a warrant that bore the confirmed address of the residence police entered after following Conn. The entry and subsequent search for Conn were reasonable and permissible under Payton and the Fourth Amendment.

Defendant was detained because he matched the description of somebody involved in an assault. He was apparently intoxicated. A patdown produced a hard cigarette pack which the officers opened, and then saw a folded piece of paper which was opened finding drugs. The search of the folded piece of paper was not justified under Terry. The alternative justification for a public intoxication search incident was rejected as a post hoc rationalization because the determination was made to arrest for the drugs and not intoxication, by the officers’ own testimony. United States v. Lee, 2007 U.S. Dist. LEXIS 82241 (E.D. Va. November 6, 2007).*

The search warrant clearly described the place to be searched and firearms to be seized in a domestic violence report involving a felon in possession of a firearm. The owner of the truck defendant was driving had the authority to consent to its search; defendant’s possession of the only set of keys did not deprive the owner of ability to consent and the officer could rely on the owner’s apparent authority. United States v. Guzman, 507 F.3d 681 (8th Cir. 2007).*

Plaintiff was indicted for drugs and weapons charges in federal court, but the charges were dismissed before a Franks hearing could be held. He sued under § 1983 claiming that the informant in the case was manufactured, but he could come forth with no evidence of it and summary judgment was granted for the officer because there was probable cause. Ladd v. St. Louis Bd. of Police Comm’rs, 2007 U.S. Dist. LEXIS 81651 (E.D. Mo. November 2, 2007).*

Defendant was stopped for a traffic offense, and he opened the glove compartment to get his paperwork, and the officer could see that it was full of cash that was “suspiciously wrapped.” That, plus defendant’s implausible story about his travel plans, was reasonable suspicion for a detention that led to a consent search. United States v. Carrion-Soto, 2007 U.S. Dist. LEXIS 82273 (D. N.J. November 7, 2007).*

An Illinois judge today denied murder “person of interest” Drew Peterson’s request for return of property seized under a search warrant after just a five minute hearing, as reported on CNN.com:

Attorneys for Drew Peterson have stated that authorities had ample time to examine items seized since Stacy Peterson went missing in late October.

But on Monday they said that Will County Judge Daniel Rozek’s ruling was reasonable.

Attorney Joel Brodsky said the judge plans to reconsider the issue next month.

“Forensics are very intricate, detailed,” Brodsky said after a five-minute hearing. “It’s only been seven weeks and we’re happy the judge is going to keep a leash on them.”

Computers and cars were seized, and Peterson claims he wants only one of each back. I would not have even filed such a motion because it inevitably would have been denied, and the court denying the motion only adds to the negative publicity.

Update: Peterson’s counsel was on Dan Abrams on MSNBC last night, and it was not pretty. He should have just stayed home because it did not serve Peterson’s interest.

The Federal Rules Committee has proposed a new F. R. Crim. P. 41(e)(2)(B) on search warrants for electronically stored evidence, here, page 24. The comment period closes February 15, 2008, and the new rule would not be effective until December 1, 2008, at the earliest. The new rule will read as follows:

Warrant to Search for Electronically Stored Information. A warrant may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes later review of the storage media or electronically stored information consistent with the warrant. The time for the executing of the warrant in Rule 41(e) and (f) refers to the seizing or onsite copying of the storage media or electronically stored information, and not to any later review.

Comment: This is a sensible amendment that adopts the prevailing practice and case law and it removes ambiguities in warrants often litigated later, but without success. Numerous cases have challenged the later review of evidence already seized under a warrant and seldom has a court held that it could not be done under the original warrant. Also, copying of electronic information can be less intrusive than seizing the computers because the information can be copied and taken without putting the person whose records were seized out of business. Also, overbreadth issues are not lost for later litigation.

Court TV becomes TruTV tomorrow. Posted on the Court TV website is 1995-2007, The Awards, “The Best, the Worst and the Weirdest of 12 years of CourtTV.com.”

On de novo review of the USMJ’s R&R, the affidavit for search warrant was devoid of probable cause, and no reasonable officer could rely upon it. United States v. Medina-Rodriquez, 2007 U.S. Dist. LEXIS 94196 (D. Minn. December 21, 2007):

Most importantly, there is no information in the affidavit that officers confirmed that the person seen leaving the Colfax residence actually resided at the residence. Nor is there any information included in the affidavit that officers conducted surveillance of the residence over a period of time to confirm that the residence was likely connected to illegal activity, or information from a reliable confidential informant that illegal activity took place at the residence.

In summary, the probable cause supporting the warrant for the Colfax Avenue North address is based solely on generalized information concerning “a group of Mexican nationals selling cocaine and Heroin in the Minneapolis/St. Paul area” and one controlled buy involving an individual that may or may not reside at the Colfax residence.

The good faith exception established in Leon should not be applied in certain circumstances. Id., 468 U.S. at 923. One such exception is where “an affidavit [is] ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'” Id. (quoting Brown v. Illinois, 422 U.S. 590, 610-611, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)). The Court finds that this exception applies in this case. Probable cause is not just lacking, it is practically nonexistent.

In a § 2255 case, the court finds that the search was valid, and the failure to deliver a copy of the warrant did not convert the search into a warrantless search nor did it prejudice the defendant. Garcia v. United States, 2007 U.S. Dist. LEXIS 94474 (W.D. Tex. November 28, 2007).*

Defendant’s consent was valid. A part of the consideration was the fact that he had twice before refused consent. United States v. Kamil Madfoun Al-Esawi, 2007 U.S. Dist. LEXIS 94580 (D. Minn. October 31, 2007).*

The NYC Taxi and Limosine Commission adopted a rule for installing text messaging to and GPS in taxicabs. A small group sought to enjoin the rule, and preliminary relief was denied as unlikely to succeed. Alexandre v. New York City Taxi & Limousine Comm’n, 2007 U.S. Dist. LEXIS 73642 (S.D. N.Y. September 28, 2007):

This litigation concerns the (impending) implementation of New York City Taxi and Limousine Commission rules requiring the installation in all yellow cabs of new technology which is intended to improve taxi service. Called the Taxicab Technology System or the technology consists of hardware and software which offers four “core services”: (i) credit, debit, and prepaid card payment for cab rides; (ii) text messaging, for example, to cab drivers in an emergency; (iii) automated trip data collection to replace the current manual (hand-written) records; and (iv) data transmission such as trip tracking and other communications by and for passengers. TTS includes the installation of global positioning equipment or “GPS.” (Class Action Complaint for Injunctive Relief and Damages, dated Sept. 19, 2007 (“Compl.”) P 9.)

As to the privacy issues:

Plaintiffs argue, among other things, that “their fundamental right to privacy guaranteed by the Fourth Amendment [to the United States Constitution] is being violated by the GPS facet of the TTS program, which will enable drivers to be tracked at all times, whether on duty or off, twenty four hours a day, seven days a week.” (Pls.’ Mem. at 16.) Defendants counter that TTS Rules “will not create intrusions by the TLC on [P]laintiffs’ operation of their regulated taxicabs beyond what already exists,” and, in any case, “the information collected by the GPS equipment is not private information protected by the Fourth Amendment.” (Defs. Mem. at 11.) Defendants also say that “[a]ny data concerning the location of off-duty taxi operations, or routes taken between trip initiation and termination … cannot be accessed by the TLC and may not be disclosed by the equipment vendors.” (Defs.’ Mem. at 11 (citing Goldstein Decl. P 16).)

Plaintiffs’ privacy claim is not likely to succeed on the merits. For one thing, practical steps have been taken by the TLC to help maintain the confidentiality of electronic trip data, including inserting a provision in TLC contracts with TTS vendors prohibiting vendors from “giving to any person or entity, which includes the City, the [TLC], or their employees, information about the location of a taxicab while it is off-duty.” (2d Salkin Decl. PP 24-26; see also Goldstein Decl. P 16; Van Meter Decl., Ex. G (Agreement Between City of New York and VeriFone Transportation Systems, Inc.), § 11.5.)

Second, and more importantly, while the Fourth Amendment prohibits “unreasonable searches and seizures,” U.S. Const. amend. IV, its applicability “depends on whether the person invoking its protection can claim a ‘justifiable,’ ‘reasonable’ or ‘legitimate expectation of privacy’ that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979) (citations omitted). Where, as in the taxicab context presented here, there is likely “no legitimate expectation of privacy,” there is also “no search or seizure within the ambit of the Fourth Amendment.” United States v. Moran, 349 F. Supp. 2d 425, 467 (N.D.N.Y. 2005) (citing United States v. Knotts, 460 U.S. 276, 285 (1983)). “There is a diminished expectation of privacy in a vehicle because of its availability to public scrutiny.” Id. (citing Knotts, 460 U.S. at 281). “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Knotts, 460 U.S. at 281; see also Turner v. Am. Car Rental, Inc., 884 A.2d 7, 11 (Conn. App. Ct. 2005) (“[T]he plaintiff has not presented us with any authority that equipping a motor vehicle with a global positioning system violates the privacy of the vehicle’s operator.”); People v. Gant, 9 Misc. 3d 611, 620, 802 N.Y.S.2d 839, 847 (Westchester County Ct. 2005) (holding that a search warrant was not required prior to installing a GPS device to track the vehicle’s whereabouts because there is no “legitimate expectation of privacy in a vehicle traveling upon … public roadways”).

Third, a person’s privacy interests are not absolute and “can be overcome by a sufficiently weighty government purpose.” Statharos, 198 F.3d at 323. The Court of Appeals for the Second Circuit had applied “intermediate level scrutiny” in evaluating regulations analogous to the TLC Rules considered here. Id. at 324 (“Because taxis are an important part of the public life of the City and have a City-granted monopoly on providing a crucial service, the taxi industry is pervasively regulated by the [TLC] … [M]edallion owners’ nominal private status does not sufficiently strengthen their confidentiality interest … so as to make the intermediate scrutiny [test] … inadequate.”). “When legislation burdens constitutionally protected privacy rights, [the Second Circuit] will apply intermediate scrutiny and uphold the statute only if a substantial government interest outweighs the burdened privacy right.” O’Connor v. Pierson, 426 F.3d 187, 202-03 (2d Cir. 2005).

The use of GPS technology in accordance with the TLC Rules appears to outweigh any burdened privacy rights. Defendants require TTS (including GPS features) in medallion taxicabs “to improve taxi service and TLC’s ability to regulate it for the public good by utilizing modern methods.” (Defs. Mem. at 15.) Plaintiffs acknowledge that “‘customer service’ might be a legitimate area of governmental concern.” (Pls. Mem. at 15.) The City of New York (acting through the TLC) has a substantial interest in promoting taxi customer service, taxicab ridership, and passenger and driver safety. See Sugarman v. Vill. of Chester, 192 F. Supp. 2d 282, 300 (S.D. N.Y. 2002) (stating local government has “substantial interests in aesthetics, public safety, welfare and property value”); Comm. for Taxi Safety, 177 Misc. 2d at 865, 677 N.Y.S. 2d 449, 456-57.

NYC Taxi & Limousine Commission trip records are subject to seizure (by the City’s admission), but it is reasonable. The court had already upheld the regulations in Alexandre v. New York City Taxi & Limousine Comm’n, 2007 U.S. Dist. LEXIS 73642 (S.D. N.Y. September 28, 2007) (posted here). Buliga v. New York City Taxi Limousine Comm’n, 2007 U.S. Dist. LEXIS 94024 (S.D. N.Y. December 21, 2007):

With one possible exception, Buliga has not shown a reasonable expectation of privacy in any of the information that will be collected under the new rule. It is well established that there is no Fourth Amendment protection accorded information about the location and movement of cars on public thoroughfares. See United States v. Knotts, 460 U.S. 276, 281-82 (1982) (use of a beeper to signal location and movements of automobile); Morton v. Nassau Cty. Police Dep’t, No. 05 Civ. 4000, 2007 WL 4264569, at *3 (E.D.N.Y. Nov. 27, 2007) (GPS device in car) (collecting cases); Alexandre, 2007 WL 2826952, at *9 (GPS system in taxicabs). Taxicabs in New York City have long been subject to regulation by the TLC, and those regulations have required cabdrivers to report not only the times and locations of trips but also the amount of fares. See 35 R.C.N.Y. § 2-28(a) (2003) (requiring drivers to report trip starting and ending times and locations and fare amounts, among other information).

After discussing the facts and contentions at length, defendant’s consent to search his apartment of three weeks and a suitcase inside was consensual. United States v. Porras-Quintero, 2007 U.S. Dist. LEXIS 94047 (S.D. N.Y. December 21, 2007).*

Defendant had guest standing, but he loses on the merits of the search under a search warrant. United States v. Brooks, 2007 U.S. Dist. LEXIS 94173 (E.D. N.Y. December 21, 2007)*:

After reviewing the record, it appears to this court that at the very least, defendant was an overnight guest at the premises searched, and therefore has standing to challenge the legality of the search and seizure. Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (overnight guests have a reasonable expectation of privacy in the home). Defendant has never disputed that the clothing seized, and now lost, was his. The presence of that clothing at the house when it was searched indicates his status, at a minimum as an overnight house guest, if not a resident, and this court therefore finds that he has standing to challenge the legality of the search.