Military entry base search of a car at a contractor entry gate that produced a small quantity of marijuana was a valid area entry search. No matter what theory is applied, the military has a compelling interest in keeping drugs off a base. United States v. Gallock, 2007 U.S. Dist. LEXIS 87512 (E.D. Cal. November 20, 2007):

The search here is no different in principle from other types of “entry point” searches whether or not the administrative search is justified with an implied consent. In either case, the scope of the search cannot exceed the purpose for which the warrantless search is justified. United States v. Bulacan, 156 F.3d 963, 968 (9th Cir. 1998) (“The scheme is only valid if ‘the search serves a narrow but compelling administrative objective,’ and ‘the intrusion is as limited….as is consistent with satisfaction of the administrative need that justifies [it].'”). Even the government appeared to concede at oral argument that the military police would be hard pressed to utilize their checkpoint to search for evidence of private party stock insider trading, a crime with no general relation to Air Force activities. As is the case in many areas of criminal law, a rule of reason must be employed even for exceptions to the search-with- warrant requirement. Morgan, 323 F.3d at 781. And, the military entry point search must be limited to those areas of the person or vehicle likely to conceal the contraband prohibited from the base.

Defendant’s error is in assuming that if a check for weapons alone is the rule for government buildings, Bulacon, supra, thus it must be the rule for military bases as well. The undersigned has seen no authority for such a narrow proposition, and the case law permits different search scopes, even based on dual purposes, depending on the nature of the checkpoint. See e.g., United States v. Soto-Camacho, 58 F. 3d 408 (9th Cir. 1995) (border checkpoint search based on need to ascertain immigration status and need to thwart drug trafficking upheld).

The local Air Force regulation governing the scope of the search permits military police to conduct entry point searches “to deter theft of government property and to prevent the transportation of contraband onto and off the installation.” BABI31-101, 14 May 2002, § 5.7.1.1, Govt. Exhibit 3. See also AFI 31-201, § 5.2: “Controlling entry to the installation is a fundamental security police task. We control entry…to help protect the resources entrusted to the Air Force.” However, although “contraband” is a broad word, it cannot exceed the scope of items which would in some way significantly disrupt the functioning of the airbase.

The court need not stretch to understand that the Air Force has a legitimate and compelling interest in keeping controlled substances off its premises.

Egloff v. New Jersey Air Nat. Guard, 648 F. Supp. 1275, 1280 (D.N.J. 1988). Air Force functions at a base such as Beale include flight, ground control and maintenance of aircraft and other sophisticated equipment. Training with dangerous weapons takes place. Private contractors assist the Air Force in its mission. Air Force bases and use of controlled substances thereon are incompatible in terms of the danger to mission, life, and property which would be risked by application of civilian controlled substance probable cause search rules to entry points on these insular bases. Nor must the Air Force implement a plethora of different rules and standards for checkpoint searches depending on the sophistication of every job, for employees working those jobs, which takes place on an Air Force base. Such would be unworkable.

Whatever “contraband” may be beyond the proper scope of an entry point search at a military base, controlled substances fall far short of that outside parameter. Upon entering the base at Beale, defendant impliedly consented to a search of his vehicle, including the center console and items such as the eyeglass case contained therein. The scope of the search was reasonable.

Plaintiffs and their children were staying at a hotel in New Orleans only from Algiers on the West Bank when Katrina hit and then the city flooded. By September 1st, the hotel they were in was running out of food and fuel, and the hotel asked them to evacuate. Their car was in the hotel’s flooded garage, so they decided to walk home over the bridge. They were ordered back into New Orleans at gunpoint by Gretna police, notwithstanding their attempt to show they lived where they were walking to. They sued under various theories, and they stated a denial of interstate travel and a Fourth Amendment claim that survives a motion to dismiss. Cantwell v. City of Gretna, 2007 U.S. Dist. LEXIS 88156 (E.D. La. November 30, 2007):

The defendants contend that the facts do not state a claim for relief for a violation of the plaintiffs’ rights under the Fourth Amendment. The defendants contend that the plaintiffs have not alleged any use of force and that the “threat of force” by pointing a gun as a deterrent does not allege a constitutional violation. The plaintiffs argue that the defendants violated a liberty interest guaranteed under the Due Process Clause of the Fifth and Fourteenth Amendment when they physically restrained them from crossing the bridge.

. . .

“The first inquiry in any § 1983 suit” is “to isolate the precise constitutional violation with which [the defendants] are charged.” Baker v. McCollan, 99 S.Ct. 2689, 2692 (1979). Historically, “[t]he liberty preserved from deprivation without due process included the right generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Ingraham v. Wright, 97 S.Ct. 1401, 1413 (1977). “While the contours of the historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment.” Id. at 1413-14.

A seizure occurs when government actors have “by means of physical force or show of authority, … in some way restrained the liberty of a citizen.” Terry v. Ohio, 88 S.Ct. 1868, 1879 n.16 (1968). In Graham v. Connor, 109 S.Ct. 1865, 1871 (1989), the Supreme Court explicitly held that a claim that arises in the context of the restraint of liberty of a free citizen is properly characterized as one invoking the protections of the Fourth Amendment and is analyzed under the reasonableness standard. “Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Id.; see also Saucier v. Katz, 121 S.Ct. 2151, 2158 (2001) (analysis is under Fourth Amendment standard, not substantive due process principles).

The Due Process Clause is not implicated in this case. There are no issues concerning procedural due process, and a substantive due process analysis is not appropriate. Accordingly, the defendants’ motion to dismiss the claims under the Due Process Clause of the Fifth and Fourteenth Amendments is granted.

Notwithstanding, the plaintiffs have alleged facts beyond a speculative level that a violation of the Fourth Amendment could have occurred, based simply on the general rule prohibiting excessive force in restraining the liberty of a citizen. See Saucier v. Katz, 121 S.Ct. at 2159. Accordingly, the allegations plausibly suggest a right to relief, and the defendants’ motion to dismiss the Fourth Amendment claim is denied.

On rehearing from a prior holding, 457 F.3d 1088 (9th Cir. 2006), the Ninth Circuit held that pointing a gun at the head of an 11 year old boy clad only in shorts and a t-shirt, then handcuffing him during a search of a house he already had come out of stated a Bivens claim because he clearly posed no threat. Tekle v. United States, 04-55026 (December 3, 2007):

[3] Here, viewing the facts in the light most favorable to Tekle, approximately twenty-three armed officers saw a barefoot, eleven-year-old boy, clad in shorts and a t-shirt, emerge from his home. Although he tried to return to the house after hearing the initial “intercom,” he then stopped and cooperated. He did not attempt to flee, nor did he resist them, but he complied with their requests, lying face down on the driveway. He was unarmed. The officers then held a gun to his head, searched him, handcuffed him, pulled him up from behind by the chain of the handcuffs, and sat him on the sidewalk, still handcuffed, with their guns pointed at him, for ten to fifteen minutes. Only after they removed his father from the home in handcuffs did they remove the handcuffs from Tekle. They then sat him on a stool, with their guns still drawn, for another fifteen to twenty minutes. We conclude under these circumstances that the amount of force used against Tekle constituted a “‘very substantial invasion of [his] personal security.’” Id. at 1015 (quoting Baker, 50 F.3d at 1193). Consequently, this factor weighs in favor of Tekle.

[4] Turning to the second and most important factor, we conclude that “the need for the force, if any, was minimal at best.” Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003). All the factors to be considered in determining the need for the force weigh in favor of a finding that the need for force was minimal. First, Tekle clearly was a child and was not the subject of the arrest warrant. Tekle was unarmed and vastly outnumbered and did not pose an immediate threat to the officers’ safety. He did not actively resist arrest or attempt to flee. Under these circumstances, even if the officers needed to secure Tekle in order to execute the search and arrest warrants, it should have been apparent that this eleven-year-old boy did not pose a threat and that the need for force accordingly was minimal. Cf. id. (finding the force excessive where the officer threw the plaintiff to the ground and handcuffed her, despite the fact that she posed no safety risk and made no attempt to leave the property); Baldwin v. Placer County, 418 F.3d 966, 970 (9th Cir. 2005) (stating that the governmental interests in using handcuffs were at a minimum when there was no indication that officers believed the suspects would flee or be armed), cert. denied, 126 S. Ct. 1331 (2006); Wall v. County of Orange, 364 F.3d 1107, 1111-12 (9th Cir. 2004) (reversing the grant of summary judgment where the deputy violently arrested the plaintiff, handcuffing his hands tightly, even though there was no probable cause for arrest and the plaintiff was following the deputy’s instructions).

[5] Balancing the force used against the need, we conclude that, “when the disputed facts and inferences are treated in the manner required by law, a jury could properly find” that the force used was “greater than [was] reasonable under the circumstances.” Santos, 287 F.3d at 853, 854. There were over twenty officers present at the scene, and Tekle was not suspected of any crime. He was cooperative and unarmed and, most importantly, he was eleven years old. A reasonable agent confronted with these circumstances should have known that there was no need to use guns and handcuffs. Yet, the officers kept Tekle handcuffed and pointed their weapons at him even after it was apparent that he was a child and was not resisting them or attempting to flee. Moreover, Tekle has alleged that an officer pulled him up from behind by the chain of the handcuffs, an act which, if true, could support a jury finding of excessive force. We understand that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. Nonetheless, we are convinced, if only by the sheer number of officers versus the one, clearly unarmed, barefoot child that a reasonable jury could find that the officers used excessive force.

Defendant who was hanging in a drug house that was without electricity or door locks had no expectation of privacy when the police entered without a warrant in response to neighbors’ complaints. This was “wrongful” occupancy. United States v. Hoyle, 2007 U.S. Dist. LEXIS 88026 (E.D. Mich. November 30, 2007).

A resident advisor of a Hofstra University dorm called University Security officers when he smelled marijuana coming from plaintiff’s room. Plaintiff was later suspended for one semester. His suit against the University under various theories was dismissed, including a lack of state action for the entry. He was not prosecuted. Franchetti v. Hofstra Univ., 2007 N.Y. Misc. LEXIS 7823, 238 N.Y.L.J. 98 (Nassau Co. October 19, 2007).*

Defendant’s traffic stop escalated to reasonable suspicion based on excessive nervousness and furtive movements, the explanation of which was completely implausible. Defendant was even moved to another officer a half-mile away because the officers needed to back each other up. State v. Forbes, 2007 Ohio 6412, 2007 Ohio App. LEXIS 5616 (12th Dist. December 3, 2007).*

Officers admittedly lacking probable cause did a knock-and-talk at defendant’s house. Two other men fled out the back, and a cellphone visible through a window was gone. The defendant inside lied about his identity. The court found exigency and then considered whether the police created it. Instead, defendant created exigency when he lied, and the police then legitimately feared that seven computers inside which were of interest to them would be tampered with or the data destroyed.
United States v. Trowbridge, 2007 U.S. Dist. LEXIS 88257 (N.D. Tex. November 29, 2007):

In this case, the Court is convinced that like the officer in Jones, the agents did not have probable cause to search Trowbridge’s computers because there was no evidence connecting his computers to the offense they were investigating. (Gov’t’s Resp. to Mot. to Suppress 18). Accordingly, it was reasonable for the officers to use the “knock and talk” strategy to further investigate. In addition, Trowbridge and Roberson, not the officers, created the exigency when they attempted to deceive the agents by claiming that Trowbridge was not at home. Based on the agents’ testimony, the Court concluded that their investigative tactics were reasonable and did not create the exigency.

Consenting to defendant’s re-entering home after a 911 call that was diffused was a police created exigency because they wanted to follow him in. United States v. Davis, 2007 U.S. Dist. LEXIS 88262 (N.D. Tex. November 29, 2007):

Based on the officers’ credible testimony in the five hour evidentiary hearing, the Court determined that any emergency that existed based on Cupito’s 911 call had ended when the officers approached Davis’s door. The officers had spoken to Cupito, and she was standing safely outside Davis’s home. Both officers testified that they had determined that they would arrest Davis before they requested his identification. If there was an exigency that Davis would harm the officers, retrieve a weapon, flee, or destroy evidence, it was created when the officers requested and consented to Davis reentering his home to retrieve his identification. Even though the officers were acting in good faith, this police-created exigency does not justify their invasion of the “sanctity of the home” to effect a warrantless arrest. See Payton, 445 U.S. at 589. Accordingly, the Government has not met its heavy burden of establishing an exigency.

Blanket strip search policy of juvenile detention center survived summary judgment. This case presents interesting summaries of the summary judgment material that shows the potential psychological damage to a juvenile from a strip search. The search of the plaintiff occurred long after introduction into the detention facility. Also, circuit law was unclear, but there was a 1981 case favoring plaintiff and there were three cases from other district courts in other circuits in point that the court used to show the claim was valid. This is a lengthy opinion developed from what appears to be a particularly strident response from the defendants on summary judgment. Moyle v. County of Contra Costa, 2007 U.S. Dist. LEXIS 89509 (N.D. Cal. December 5, 2007):

While the Court agrees that the circumstances in Flores did not present the sort of difficult security issues faced by Contra Costa Juvenile Hall, it concludes, nonetheless, that Defendants’ evidence falls short of establishing the constitutionality of blanket strip searches–both upon intake and after returning from visits with individuals who were not employed by Juvenile Hall. With respect to the strip searches that were conducted upon admission to Juvenile Hall, there has been no showing that the contraband listed in the contraband log was seized from juveniles like Ermitano, whose crime did not involve violence, drugs, or weapons. Further, in the face of Plaintiffs’ evidence that this contraband could have been detected through the use of pat searches and a metal detector, Defendants have offered no evidence showing that the more intrusive strip search was required. Nor have they pointed to evidence that any of the contraband listed on the logs was concealed in a body cavity. Similarly, with respect to the strip searches conducted after visits with probation counselors and parents, there has been no showing that strip searches are necessary to protect the children at Juvenile Hall. Indeed, the possibility that contraband or weapons might be given to juveniles by probation counselors seems particularly unlikely.

Plaintiff’s claim was precluded by the outcome of a bench trial for a petty offense, and it was also Heck barred. Gilbert v. Isham, 2007 U.S. Dist. LEXIS 89406 (W.D. Va. December 5, 2007).*

“[T]he blocking of the defendant’s Chevy to determine the identity of the occupants and maintain the status quo while obtaining this information was a warrantless Terry seizure, that Officer Williams had reasonable suspicion justifying that seizure, and the search of the vehicle was constitutionally reasonable.” United States v. See, 2007 U.S. Dist. LEXIS 89448 (N.D. Ohio December 5, 2007).*

The police informant in the botched Atlanta drug raid that led to the death of 92 year old Kathryn Johnson, repeatedly posted here months ago, sued the City of Atlanta for disclosing his identity in the course of the investigation. See Former police informant sues Atlanta / Alex White was involved in the Kathryn Johnston case, also posted on the ABA’s website.

Defendant was a well known target as a money or drug courier crossing the border regularly through Champlain, N.Y., and he was flagged in the Customs computer. When he crossed the border this time, he was sent to secondary inspection, and he was brought inside for questioning. While he was inside, a GPS with a cellphone transmitter was planted on the car. He was allowed to go on his way, and they watched and tracked his moves and noticed that he had lied about his travel plans, and they developed reasonable suspicion for a stop. He was ultimately arrested for bulk cash smuggling for lying about having more than $10,000 in cash when he entered the country. United States v. Coulombe, 2007 U.S. Dist. LEXIS 86756 (N.D. N.Y. November 26, 2007):

A person has no reasonable expectation of privacy insofar as the exterior of his car is concerned. See United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) (citing New York v. Class, 475 U.S. 106, 114 (1986); United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993). There is no Fourth Amendment violation when the installation of a tracking device on a vehicle’s undercarriage does not damage the vehicle or invade its interior, when the vehicle operator does not lose dominion or control, and when there is no other Fourth Amendment invasion during the installation. See McIver, 186 F.3d at 1126-27. Charles did not damage the vehicle, he did not invade the interior, and Coulombe did not lose dominion and control. Because the vehicle’s undercarriage was lawfully accessed during the secondary border inspection, there was no other unlawful invasion that violated the Fourth Amendment. See Tudoran, 476 F. Supp. 2d at 210-13. Therefore, the installation of the device and its post-installation operation were constitutionally permissible.

Even assuming the first prong of a Franks violation, including the omitted information still showed probable cause. United States v. Laliberte, 2007 U.S. Dist. LEXIS 87023 (D. Kan. November 19, 2007):

In this case, even assuming defendant could meet the first part of his Franks burden, the court would nevertheless conclude that the affidavit otherwise provided probable cause for the search. In determining this issue, the court sets aside the allegation that property records showed Robert Charles Laliberte as the owner of the 6th Street residence, and it treats the omission relating to Robert’s Arizona license and Arizona correspondence as though it had been included in the affidavit. See Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (in determining whether affidavit still shows probable cause, false statements are set aside, while omitted information is treated as if it had been included in the affidavit). Even so, the affidavit showed probable cause to search the 6th Street residence.

Defendant who hid a gun on the roof of a garage had no expectation of privacy there. United States v. Pankey, 2007 U.S. Dist. LEXIS 86785 (D. Minn. October 25, 2007)*:

The critical threshold question is whether the Defendant had a legitimate expectation of privacy on the roof of the garage where Wilson found the weapon, which would allow him to assert a Fourth Amendment claim. The Defendant acknowledges that he does not have a possessory or ownership interest in the garage. However, he argues that he had constructive control of the garage, based on the fact that he resided in a building which was located on the street immediately below the garage, and that he was present on October 26, 2006, at the Seventh Street residence rented by Dickerson, which was immediately adjacent to the garage, and that constructive control gave him a reasonable expectation of privacy on the roof of the garage.

At the Hearing, Wilson testified that he had spoken with Johnson, who owns both the garage, and the building immediately below the garage, where the Defendant was renting an apartment at the time that the search took place. According to Wilson’s uncontradicted testimony, Johnson reserved the garage for his own personal use, and had not given the Defendant, or any other tenant, permission to use the garage, or its roof. See, United States v. Wiley, 847 F.3d 480, 481 (8th Cir. 1988) (defendant lacked standing when he had no legitimate access to premises without the presence of the owner and had no personal belongings stored there). The Defendant does not claim that he had a key to the garage, or had previously stored belongings there, either with or without Johnson’s permission, and did not have the ability to exclude others from accessing the garage. Likewise, the Defendant did not pay any rent to use the garage, or claim that any portion of the rent that he paid to Johnson, for his apartment, was so allocated. See, United States v. Juchem, 2001 WL 34152082 at *4 (N.D. Iowa, April 23, 2001)(no expectation of privacy in garage when defendant had key and permission of owner to enter, but did not pay rent or have permission to exclude others).

Moreover, the Defendant cannot claim that he had a legitimate expectation of privacy in the roof of the garage, based on his presence in the Seventh Avenue residence. Johnson told Wilson that he had not given anyone, including Dickenson, permission to access the garage. Even if Dickenson had the ability to give the Defendant permission to access the garage, she also told Wilson that she had not granted the Defendant permission to store any items, either in or on the garage, or inside her residence.

Defendants prevailed in a civil action for serving a search warrant on the wrong premises. Defendants then sought attorneys fees for a frivolous action, which the district court denied. Tovar v. City of Fresno, 2007 U.S. Dist. LEXIS 86847 (E.D. Cal. November 9, 2007).*

“Fellow officer rule” applies to the information which triggers a protective sweep, which was valid here. United States v. Anderson, 2007 U.S. Dist. LEXIS 87485 (W.D. N.Y. November 6, 2007):

Logically, the same analysis should apply to a protective sweep in determining whether there exists “a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.” Buie, 494 U.S. at 336. Specifically, in this case, the Court finds that information, possessed by Briganti reasonably led him to believe that the targets of the warrants might well be armed and dangerous and reasonably led him to so advise members of the arrest teams, including Brennan.

Finally, since the Court determines that the protective sweep at issue was lawful, Brennan’s plain view observation of the business card on which there appeared names and numbers was also lawful.

A license plate and driver’s license check which led to the discovery that the owner of the vehicle had a restricted driver’s license justified a stop on reasonable suspicion. State v. Crow, 2007 Iowa App. LEXIS 1272 (November 29, 2007).*

Younger abstention bars a federal civil action against a search that is still under investigation by state officials. Mirka United, Inc. v. Cuomo, 2007 U.S. Dist. LEXIS 87385 (S.D. N.Y. November 27, 2007):

Numerous courts have held that investigatory proceedings that occur pre-indictment and that are an integral part of a state criminal prosecution may constitute “ongoing state proceedings” for Younger purposes. See, e.g., Texas Association of Business v. Earle, 388 F.3d 515, 519-21 (5th Cir. 2004) (A state grand jury proceeding in which subpoenas have been issued constitutes an ‘ongoing state proceeding’ such that abstention is warranted.); Craig v. Barney, 678 F.2d 1200, 1202 (4th Cir. 1982); Kaylor v. Fields, 661 F.2d 1177, 1182 (8th Cir. 1981) (“The issuance [by the Arkansas Attorney General] of the subpoenas … is part of a state proceeding in which the plaintiffs to this action had an opportunity to present their claims” and therefore requires Younger abstention.); J. & W. Seligman & Co. Inc. v Spitzer, No. 05 Civ. 7781, 2007 WL 2822208, at *5 (S.D.N.Y. Sep. 27, 2007) (“[T]he issuance of compulsory process … in criminal cases, initiates an ‘ongoing’ proceeding for the purposes of Younger abstention.”); Law Firm of Daniel P. Foster, P.C. v. Dearie, 613 F. Supp. 278, 280 (E.D.N.Y. 1985) (“Thus, were the court to grant the relief sought, the immediate and direct effect would be to enjoin the state court from enforcing its order to comply with the subpoena and the state from pursuing a grand jury investigation, which is a criminal proceeding.”); Notey v. Hynes, 418 F. Supp. 1320, 1326 (E.D.N.Y. 1976) (“[W]hen a grand jury has been impaneled and is sitting and investigating, there is a ‘criminal case’ and in New York a criminal proceeding.”).

Search warrants are sometimes necessary to develop evidence sufficient to commence a criminal action and are functionally connected to criminal prosecutions. Moreover, the instant search warrant was authorized and executed during and in connection with a grand jury investigation. It would strain logic as well as both New York and federal law to conclude that a search warrant authorized by a New York state judge and executed during the course of an ongoing grand jury investigation is not part of an ongoing state proceeding. In any event, as that grand jury investigation has now resulted in an indictment against Kagan and others, state criminal proceedings are now clearly underway.

“Defendant’s consent, after being shown an invalid search warrant for the [his] property, was not a valid consent.” United States v. Jones, 2007 U.S. Dist. LEXIS 87221 (S.D. Ohio November 27, 2007).*

Consent was found valid by defendants’ actions, without words. United States v. Hernandez, 2007 U.S. Dist. LEXIS 87080 (D. Utah November 27, 2007).*

LexisONE free caselaw has been added to the column on the right side for free links to caselaw. Some of the links derived from other sources have changed (thus, gone bad) over time, and some state opinions I have been finding are inaccessible on the state judicial websites. LexisONE enables free access to many that are otherwise inaccessible.

Boston gun search program posted here on November 19th is in Time magazine today.

In what is a significant border search case from the Second Circuit, five men attended an Islamic conference in Toronto, and Homeland Security received intelligence information that people attending the conference had potential terrorist connections. So, the government watched for any coming into the U.S. near Toronto. The plaintiffs crossed at Buffalo and, without any individualized suspicion (and without any criminal history), they were subjected to Customs treatment expected for a suspected terrorist: forced patdowns and fingerprinting, photographing, and detention and questioning for up to six hours. After it was determined that they were not a threat, they were released and permitted entry, and their fingerprints and photographs were later purged. They sued, inter alia, under the First and Fourth Amendment. The Second Circuit held that, assuming the facts stated by the plaintiffs were true, the government had plenary authority at the border, and it was permissible based on the intelligence the government received. Tabbaa v. Chertoff, 2007 U.S. App. LEXIS 27258 (2d Cir. November 26, 2007):

Plaintiffs’ second claim is that CBP’s searches were unreasonable in violation of the Fourth Amendment to the U.S. Constitution.

It is well established that the government has broad powers to conduct searches at the border even where, as here, there is no reasonable suspicion that the prospective entrant has committed a crime. See, e.g., United States v. Flores-Montano, 541 U.S. 149, 153 (2004) (“Congress, since the beginning of our Government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant ….”) (internal quotation marks omitted); United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) (“Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant ….”); United States v. Ramsey, 431 U.S. 606, 616 (1977) (“[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border ….”); United States v. Nieves, 609 F.2d 642, 645 (2d Cir. 1979) (“It long has been established that routine border searches, conducted for the purpose of controlling the movement of people and goods across our national boundaries, do not violate the Fourth Amendment’s prohibition against unreasonable searches.”). Accordingly, a suspicionless search at the border is permissible under the Fourth Amendment so long as it is considered to be “routine.” See, e.g., United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006).

The precise line between what is routine and what is not routine, however, has not been clearly delineated. On the one hand, it has been held that “[r]outine searches include those searches of outer clothing, luggage, a purse, wallet, pockets, or shoes which, unlike strip searches, do not substantially infringe on a traveler’s privacy rights.” Id. (citing United States v. Grotke, 702 F.2d 49, 51-52 (2d Cir. 1983)). By contrast, “more invasive searches, like strip searches, require reasonable suspicion.” Id. The Supreme Court has stated that “non-routine” searches include “strip, body cavity, or involuntary x-ray searches.” Montoya de Hernandez, 473 U.S. at 541 n.4. The determining factor is not how ordinary or commonplace a search is, but rather “the level of intrusion into a person’s privacy.” Irving, 452 F.3d at 123.

. . .

Plaintiffs focus on three aspects of the searches in question, which we address in turn. First, plaintiffs urge us to find that their treatment, when considered in its entirety, was not routine because of the combined effect of the various measures employed, including intrusive questioning, photographing, and fingerprinting. We are sympathetic to plaintiffs’ argument because there arguably was a stigma associated with being subject to the IDSO procedures. In MacWade v. Kelly, 460 F.3d 260, 273 (2d Cir. 2006), we found that police searches of subway passengers’ bags were “minimally intrusive” in part because the searches were conducted “out in the open, which reduces the fear and stigma that removal to a hidden area can cause ….” Here, plaintiffs were gathered into a separate building along with several other Muslims who had attended the RIS Conference–and all of these attendees were subject to a form of border processing normally reserved for suspected terrorists. As a result, it is not unreasonable for plaintiffs to have felt there was a stigma attached to the searches. Cf. United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974) (“The search of carry-on baggage, applied to everyone, involves not the slightest stigma. More than a million Americans subject themselves to it daily ….”) (emphasis added and citation omitted).

On the other hand, none of the specific measures taken by CBP was more invasive than the types of searches at the border that courts have regularly held to be routine. Plaintiffs complain that they were required to answer intrusive questions about their activities at the conference, the content of the lectures they attended, and their reasons for attending. But these questions are not materially different than the types of questions border officers typically ask prospective entrants in an effort to determine the places they have visited and the purpose and duration of their trip. See United States v. Silva, 715 F.2d 43, 47 (2d Cir. 1983) (noting that questions about “citizenship, the length and purpose of [an applicant’s] trip to Canada, [and] what items she had acquired or bought in Canada” are all routine). Likewise, pat-down searches have repeatedly been found to be routine, even when they were followed by the lifting of an applicant’s shirt or the forced removal of shoes. See, e.g., United States v. Charleus, 871 F.2d 265, 268 (2d Cir. 1989) (While “[t]he light touching of appellant’s back followed by a lifting of his shirt arguably straddles the line between the two categories of border searches,” it can be considered a routine search because “the potential indignity … fail[ed] to compare with the much greater level of intrusion associated with a body cavity or full strip search ….”). The forcing open of plaintiffs’ feet that we assume to have occurred here in at least two instances, while perhaps marginally more invasive than the lifting of a shirt, is not so invasive of plaintiffs’ privacy as to be distinguishable from our holdings that pat-down searches are routine.

We also conclude that the fingerprinting and photographing of plaintiffs does not take the searches out of the realm of what is considered routine because, at least in the context of a border search, being fingerprinted (even forcibly) and photographed is not particularly invasive, especially considering that the photographs and fingerprints were used solely to verify plaintiffs’ identities and then were discarded from the government’s databases. See Davis v. Mississippi, 394 U.S. 721, 727 (1969) (“Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.”); Nicholas v. Goord, 430 F.3d 652, 658 (2d Cir. 2005) (noting that the Supreme Court has suggested that fingerprinting is not entitled to Fourth Amendment protection and describing fingerprinting as a “non-intrusive means of obtaining physical evidence …”); Montoya de Hernandez, 473 U.S. at 539-40 (“[N]ot only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border.”) (internal citation omitted).

Thus, each of the individual elements of the searches was routine. And while we leave open the possibility that in some circumstances the cumulative effect of several routine search methods could render an overall search non-routine, we do not find that to be the case here. While plaintiffs were undoubtedly made uncomfortable and angry by the searches, and they may understandably have felt stigmatized, their personal privacy was not invaded in the same way as it would have been had they been subject to a body cavity or strip search, or involuntary x-ray. Because the decisive factor in the analysis is invasiveness of privacy–not overall inconvenience–we find that CBP’s searches of plaintiffs, considered in their entirety, were routine in the border context, albeit near the outer limits of what is permissible absent reasonable suspicion.

Plaintiffs’ First Amendment and other arguments were also rejected.

Defendant was arrested and asked for consent to search his apartment for a gun which he allegedly pointed at his landlord, which he denied. He was taken in for questioning. His wife was called to come and get their child that an aunt had when defendant was taken away. When she got there, she granted consent, and she could effectively consent when presented with facts by the police, even though defendant had refused consent before leaving. Randolph is [incredibly] distinguished. People v. Olmo, 2007 NY Slip Op 27474, 2007 N.Y. Misc. LEXIS 7652 (Kings Co. November 19, 2007):

The distinction in Olmo is that defendant was not actually present when his wife gave her consent to search their apartment because he had already been taken to the precinct to begin processing his lawful arrest. The question for this Court is whether Olmo presents a necessary application of Randolph, requiring suppression, or rather would amount to an unwarranted extension of Randolph, inappropriate for a trial court to make, especially in New York State, which has traditionally upheld the right of the police to rely on a co-occupant’s consent. … The answer turns on whether the Randolph decision necessarily elevated the importance of defendant’s refusal to consent at the entrance to his apartment–enough to trump the subsequent consent of his companion, who returned home to the waiting police while defendant remained at the precinct where he had just been taken.

I conclude that, until and unless a controlling appellate authority should subsequently extend or apply Randolph to an Olmo situation, Randolph does not require suppression. The rationale of the Randolph decision was based on society’s customary expectations regarding privacy in one’s home. And the Randolph Court was emphatic about avoiding unseemly confrontations between disputing occupants, when both are physically present at the same time. The facts in Olmo presented no such risk. Here, I see no good reason in law, custom, policy or precedent why defendant’s wife should not, when she returned home and learned about what happened, have the right to cooperate with the police to have a firearm removed as expeditiously as possible from the home she also shared with a young child. I hold that, as long as the police had a valid purpose in removing defendant from his residential building apart from avoiding his objection to the search, his wife retained her authority to consent and the police could reasonably rely [on] it.

Comment: This case cannot be so readily distinguished from Randolph. It can be assumed, based on the crime victim’s report, that the police had probable cause for menacing the victim with a gun. After all, that was the basis for taking him in. He refused consent, and then they asked the wife when she got there for her consent. The effort made to distinguish Randolph is lame and convoluted. This should be reversed on appeal.

The Boston Police Department announced this weekend, or at least in a story that broke this weekend, that it will be using information about guns held by youths and go to their houses and seek parental consent to enter and search, with amnesty for seizure of the gun, unless the gun turns up having been used in a crime. See the following articles: Cops: Let us search kids’ rooms for guns, from Saturday, November 17th, Boston Herald:

The homes targeted are in four crime-plagued neighborhoods [read: African-American and Latino], Davis said. A search team of BPD school cops will approach the homes of at-risk teens based on community tips and ask a parent or guardian for permission to search the youths’ bedrooms. If guns are recovered, the youths will not be prosecuted–unless the weapons are later linked to a crime. (bracketed material added)

From yesterday’s AP: Boston Cops Seek Invites to Search Homes; from yesterday’s Boston Globe: Police to search for guns in homes; from Fox News: Boston Police to Search Kids’ Bedrooms for Guns.

The program depends upon targetted homes and parental consent. Once the police cross the threshold, though, you can be sure that all bets are off. What if the police smell marijuana or a meth lab when the door opens or they enter and see drug paraphernalia or harder drugs in a common area or the kid’s bedroom? That smell, under general case law, would permit their rush into the house and a full scale warrantless search with probable cause and exigent circumstances.

There may be amnesty for the gun, but what about the drugs? Highly unlikely. What if they decide that the kid has too expensive stuff in the room? Does that mean an investigation into where it came from?

One more step removed: If consent is refused, are they going to seek a search warrant for the gun if the quality of the “tip” rises to probable cause? Even if it doesn’t, they can use the good faith exception to get away with all kinds of things.

One more step: If the kid is 18 and excludes the parents from the room, the parents should not be able to consent to a search of that private area. Then, the kid has to be asked.

And, is this request for consent going to be preceded by a warning that they have a right to refuse consent? Or is this all going to go down as “acquiescence to a claim of authority” and not be truly consensual? Bumper v. North Carolina, 391 U.S. 543 (1968).

This is one of those events that brings to mind Justice Brandeis’s dissent in Olmstead v. United States, 277 U.S. 438, 479 (1928):

Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

The mind reels at the possibilities. And I’m just scratching the surface here, I think. The worse thing is the number of people responding to a nonscientific poll that think this is a good idea. They obviously have no clue as to the ramifications of a police entry into the sanctity of the home. “Be a good German and consent.”

(Hat tip to Steve Gray of Chicago who is writing about this for Time.)

W.D.N.Y. suppresses a stop and patdown of a man on the street who vaguely matched a description of somebody “looking to break into cars.” United States v. McCloud, 2007 U.S. Dist. LEXIS 85542 (W.D. N.Y. August 16, 2007):

On this record, I find that the interaction between Jones and McCloud began as a consensual encounter which required no legal justification. Jones’s simple request that McCloud speak with him would not have suggested to a reasonable person that he or she was not free to leave. See Florida v. Bostick, 501 U.S. at 439. As the government concedes, however, the encounter quickly evolved into a Terry stop upon Jones’s direction that McCloud put his hands behind his back and submit to a pat search for weapons. (Tr.A 12). Like the government, I believe that a reasonable person in McCloud’s position would not have felt free to disregard Jones’s instruction. See California v. Hodari D., 499 U.S. 621, 627 (1991) (“since the addressee [of a police order to stop] has no ready means of identifying the deficient [orders] it almost invariably is the responsible course to comply”). In fact, Jones himself testified that at that point during the encounter McCloud was not free to leave. (Tr.A 16).

The question whether the Terry stop of McCloud was justified by reasonable suspicion is, in my view, a close one. Indeed, had McCloud complied with Jones’s initial direction, I likely would find that the seizure was unsupported by reasonable suspicion. At the time of that direction, Jones’s suspicion was based upon (1) his belief that McCloud matched the description of the suspect; (2) McCloud’s presence near the location of the alleged suspicious activity at a time close to the time of the 911 report; (3) the virtual absence of any other individuals present near the scene; (4) the fact that it was one o’clock in the morning in an area of the city known to have a high incidence of crime; (5) McCloud’s failure to turn his head toward the patrol car when Jones first passed him; and (6) McCloud’s unprompted production of his identification when Jones asked to speak to him. It seems unlikely to me that these facts — taken alone or together — provided reasonable suspicion to justify a Terry stop of McCloud.

The most that can be said about McCloud’s physical description is that it was not inconsistent with the information provided in the 911 call. I cannot say, however, that McCloud matched a description of the suspect because identification of race, even accompanied by a vague characterization of clothing, does not describe a suspect with sufficient detail or identifying characteristics to meaningfully set him apart from other members of the community. See United States v. Swindle, 407 F.3d 562, 569-70 (2d Cir. 2005) (“race when considered by itself and sometimes even in tandem with other factors, does not generate reasonable suspicion for a stop”). Moreover, it is open to question whether McCloud’s medium-colored blue jeans and hooded sweatshirt fit the description of dark pants and a jacket.

Comment: The U.S.M.J. was more solicitous of the government’s position than he needed to be: “may I speak to you” from a cop on the street is not realistically a request subject to consent when a cop asks it on the street because refusal has consequences. The comment that this Terry question is a “close one” is just wrong–it is not close at all–but it is an open invitation to the District Judge to reverse it. There was no real crime “afoot,” as required by Terry. The 911 call was about a potential breaking into a car, and the defendant had nothing in his hands and was not even acting suspicious when he was stopped. He was just in the wrong place at the wrong time, and the patdown produced evidence unrelated to the factual basis of the stop.

Plaintiffs’ car was blown up because it was parked near a multi-national meeting demonstration site, and the police were concerned that it might have a bomb in it. It didn’t. If the police reasonably believed it contained a bomb, they would have acted reasonably, but fact questions remained, so summary judgment was denied. Vogel v. City of Miami, 2007 U.S. Dist. LEXIS 85438 (S.D. Fla. November 8, 2007).*

A mere assertion that an informant did not exist was so conclusory that it was insufficient to state a claim for a civil Franks violation. White v. Wilder, 2007 U.S. Dist. LEXIS 85506 (S.D. Miss. November 7, 2007).*

The defendant alleged a violation of his rights in The Netherlands by actions of the DEA. The Second Circuit held that the DEA’s action was not subject to suppression under The Treaty on Mutual Assistance in Criminal Matters between the United States and the Netherlands (commonly known as MLAT). United States v. Rommy, 2007 U.S. App. LEXIS 25732 (2d Cir. November 5, 2007):

By its express terms, however, the treaty has no application to evidence obtained outside the MLAT process. Article 18, subsection 1, states:

Assistance and procedures provided by this Treaty shall be without prejudice to, and shall not prevent or restrict, any assistance or procedure available under other international conventions or arrangements or under the domestic laws of the Contracting Parties.

Id. art. 18, subsec. 1. This does not mean that United States or Dutch authorities, operating without MLAT authorization, may act with impunity in conducting law enforcement investigations in each others’ countries. To the contrary, it means that, when securing evidence with out MLAT authorization, foreign government officials lacking diplomatic immunity must conduct themselves in accordance with applicable “domestic laws.” Id. Thus, when DEA agents proceeded to use DeVries as a confidential informant in the Netherlands even after their MLAT request to do so was denied, they did not violate the treaty. They did, however, subject themselves and their informant to any constraints imposed on private actors by Dutch law. We need not here decide whether any DEA actions violated Dutch domestic law. The admissibility of evidence in a United States court depends solely on compliance with United States law. See United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998) (observing that “federal law governs the admissibility of evidence in a federal criminal trial”); United States v. Brown, 52 F.3d 415, 420 (2d Cir. 1995) (noting that “federal law is applicable in a federal prosecution even when state police officers [are] involved” in investigating case); United States v. Pforzheimer, 826 F.2d 200, 203 (2d Cir. 1987) (stating that “federal law governs federal prosecutions in federal court” (internal quotation marks omitted)); cf. United States v. Alvarez-Machain, 504 U.S. 655, 670, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992) (holding that defendant’s forcible abduction from Mexico, authorized by DEA officials, did not prohibit trial in United States for violations of United States criminal laws). Rommy makes no claim on appeal that the DEA’s undercover investigation generally, or its recording of the telephone calls in the United States or the meeting in Bermuda specifically, violated any United States law.

A second reason Rommy’s MLAT argument fails is that he cannot demonstrate that the treaty creates any judicially enforceable individual right that could be implicated by the government’s conduct here. As the Supreme Court has long observed, absent explicit treaty language conferring individual enforcement rights, treaty violations are generally addressed by the signatory sovereigns through diplomatic channels. See Head Money Cases, 112 U.S. 580, 598, 5 S. Ct. 247, 28 L. Ed. 798 (1884) (noting that “treaty is primarily a compact between independent nations” and “depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it”). For any number of reasons, sovereigns may elect to overlook non-compliance with particular treaty requirements in given cases. Thus, a proper respect for the diplomatic choices of sovereign nations prompts courts generally to apply “a strong presumption against inferring individual rights from international treaties.” United States v. De La Pava, 268 F.3d 157, 164 (2d Cir. 2001).

State trial court suppression order for racial profiling in a stop was not subject to issue preclusion in a federal civil rights case because the parties and issues were not identical and the civil defendant did not get to cross-examine. The civil claim does get to proceed, however. Ballard v. Heineman, 2007 U.S. Dist. LEXIS 84797 (D. Neb. November 15, 2007).*

Officers put out a BOLO for a white van that a CI said would be carrying drugs. The plan was to stop the van if it committed a traffic offense. An officer saw the van, followed it, and saw a traffic offense of swerving over the fog line. The officer turned on the video and captured more of the same. Once the van was stopped, the defendant was asked for consent, and he agreed. The true motive of the stop was irrelevant because there was an objective basis. Even if the stop were invalid, the court [strains] to find the consent was purged of the taint. Alternatively, the collective knowledge of the police created reasonable suspicion for the stop. United States v. Magana-Aguirre, 2007 U.S. Dist. LEXIS 84800 (W.D. Ark. November 1, 2007):

Although Carver’s subjective motivation was admittedly to effect a drug-related arrest, that is irrelevant when the Court considers whether the traffic stop he carried out was reasonable under the Fourth Amendment. A pattern of driving suggestive of drunk driving qualifies as a reasonable suspicion that a traffic violation is occurring.

. . .

Finally, as noted above the Court does not find fault with Carver’s conduct in stopping the van, but even if a reviewing court should view the matter differently, this Court does not believe any court would find his conduct “flagrant” or “egregious” in any respect. Thus, the Court finds that defendant’s consent would have been sufficient to validate the search even if the traffic stop did not survive constitutional scrutiny.

Ninth Circuit holds that the state secrets privilege may bar a civil action over alleged unlawful surveillance of an alleged terrorist group under the now public Terrorist Surveillance Program. At issue was a “Sealed Document” that the government claimed protected by the state secrets privilege which the plaintiffs had seen. The court held that the plaintiffs could not testify about the document because the state secrets privilege absolutely protected the Sealed Document. The District Court declined to reach the “difficult question” of whether there was an FISA exception that would permit plaintiffs’ claim to proceed. Al-Haramain Islamic Foundation, Inc. v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006). The case was remanded for the District Court to make that determination. Al-Haramain Islamic Foundation, Inc. v. Bush, No. 06-36083 (9th Cir. November 16, 2007):

Al-Haramain cannot establish that it suffered injury in fact, a “concrete and particularized” injury, because the Sealed Document, which Al-Haramain alleges proves that its members were unlawfully surveilled, is protected by the state secrets privilege. At oral argument, counsel for Al-Haramain essentially conceded that Al-Haramain cannot establish standing without reference to the Sealed Document. When asked if there is data or information beyond the Sealed Document that would support standing, counsel offered up no options, hypothetical or otherwise. Thus, Al-Haramain has indicated that its ability to establish injury in fact hinges entirely on a privileged document. It is not sufficient for Al-Haramain to speculate that it might be subject to surveillance under the TSP simply because it has been designated a “Specially Designated Global Terrorist.”

“[E]ven the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Reynolds, 345 U.S. at 11. Because we affirm the district court’s conclusion that the Sealed Document, along with data concerning surveillance, are privileged, and conclude that no testimony attesting to individuals’ memories of the document may be admitted to establish the contents of the document, Al-Haramain cannot establish that it has standing, and its claims must be dismissed, unless FISA preempts the state secrets privilege.

V. FISA AND PREEMPTION OF THE STATE SECRETS PRIVILEGE

Under FISA, 50 U.S.C. §§ 1801 et seq., if an “aggrieved person” requests discovery of materials relating to electronic surveillance, and the Attorney General files an affidavit stating that the disclosure of such information would harm the national security of the United States, a district court may review in camera and ex parte the materials “as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. § 1806(f). The statute further provides that the court may disclose to the aggrieved person, using protective orders, portions of the materials “where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” Id. The statute, unlike the common law state secrets privilege, provides a detailed regime to determine whether surveillance “was lawfully authorized and conducted.” Id.

As an alternative argument, Al-Haramain posits that FISA preempts the state secrets privilege. The district court chose not to rule on this issue. See Al-Haramain, 451 F. Supp. 2d at 1231 (“I decline to reach this very difficult question at this time, which involves whether Congress preempted what the government asserts is a constitutionally-based privilege.”). Now, however, the FISA issue remains central to Al-Haramain’s ability to proceed with this lawsuit. Rather than consider the issue for the first time on appeal, we remand to the district court to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (stating that the court of appeals should not ordinarily consider issue not passed on below); Barsten v. Dep’t of Interior, 896 F.2d 422, 424 (9th Cir. 1990) (observing that the wisest course is to allow district court to consider issue first).

REVERSED and REMANDED.

Government’s request for realtime data as to the movements of a suspected drug dealer’s cellphone was denied without prejudice, subject to the government coming up with more. In the Matter of the Application of the United States of America for an Order: (1) Authorizing the Installation and Use of a Pen Register and Trap and Trace Device; (2) Authorizing Release of Subscriber and Other Information; and (3) Authorizing the Disclosure of Location-based Services, 2007 U.S. Dist. LEXIS 83022 (S.D. Tex. November 8, 2007). The publication of this order was the subject of a fascinating Washington Post article today: Cellphone Tracking Powers on Request / Secret Warrants Granted Without Probable Cause, by Ellen Nakashima.

The entirety of the order:

This matter comes before the Court pursuant to a written and sworn application pursuant to 18 U.S.C. §§ 3122(a)(1), 3127(5), and 2703(c)(1) by an assistant United States Attorney who is an attorney for the Government as defined by Rule 1(b)(1)(B) of the Federal Rules of Criminal Procedure and an accompanying affidavit of a special agent with the Drug Enforcement Administration.

In order to obtain an order for a tracking device, the Government must establish probable cause. Fed. R. Crim. P. 41(d)(1). “Tracking device” is defined as “an electronic or mechanical device which permits the tracking of the movement of a person or object.” 18 U.S.C. § 3117(b); see also Fed. R. Crim. P. 41(a)(2)(E).

This Court has determined that when the Government seeks real-time cell site data, it does not have to establish probable cause. In the Matter of an Application for an Order, 433 F. Supp. 2d 804, 806 (S.D. Tex. 2006). In that order, the Court explained that in reaching its decision it found significant that “[t]he government is not seeking: (1) to activate remotely the subject’s telephone’s GPS functionality; (2) to obtain information from multiple cellular antenna towers simultaneously to ‘triangulate’ the precise location of a cell phone….” Id. (italics in original).

In the pending application, the assistant United States Attorney “requests an Order authorizing the [DEA] to require the [cell phone] Provider to disclose location-based data that will assist law enforcement in determining the location of the Target Device (differentiated from the first or last cell-site used to make or receive a call, which simply identifies the location of the third-party Provider’s infrastructure).” (emphasis added). The Government seeks not only real time cell-site data, but “‘Enhanced 911’ services developed by the Provider in order to comply with the provisions of 47 C.F.R. § 20.18.” Accordingly, the Provider is currently required to provide accurate and reliable locations within “50 meters for 67 percent of calls [and] 150 meters for 95 percent of calls” “[f]or hand-set based technologies.” 47 C.F.R. § 20.18(h)(2). The information that the Government seeks clearly attempts to identify the exact location of the Target Device (and presumably the person holding the Target Device), and thus requires a finding of probable cause.

The special agent’s affidavit contains the subscriber’s name and address of the Target Device. The affidavit further alleges that Target Device is being used by the subscriber (“Subject”) in furtherance of an organized scheme involved in narcotics trafficking. However, the affidavit fails to provide sufficient specific information to support the assertion that the Target Device is being used in the criminal enterprise.

Instead, the affidavit simply alleges that the Subject is engaging in narcotics trafficking and using the Target Device to do so. It fails to focus on specifics necessary to establish probable cause, such as relevant dates, names, and places. For example, the affidavit makes statements that the DEA has “identified” or “determined” certain matters, or that its investigation has “revealed.” These identifications, determinations, or revelations are not facts, but simply conclusions by the agency. Moreover, the affidavit contains a critical paragraph addressing assertions of the Subject’s involvement in the narcotics trafficking that lacks supporting facts. For example, it discusses negotiations for the purchase of narcotics by the Subject. It fails to indicate with whom the negotiations were conducted. Some of the information about negotiations is over three years old. It is unclear when the second negotiation occurred. It is unclear how the DEA learned of these negotiations. Ultimately, the affidavit fails to provide any specific facts or details related to the Subject’s alleged criminal activity along with use of the Target Device that would establish probable cause.

Finally, to the extent that the affidavit relies on cooperating sources of information and cooperating defendants without providing any specifics or details regarding the Subject’s criminal actions, the Government has failed to establish probable cause. In relying on these unnamed sources, it is incumbent upon the Government to provide sufficient details, including independent corroboration done by the agency, in order to establish that the information is reliable.

The Fifth Circuit has explained that a probable cause determination cannot be supported by “a wholly conclusory statement unsubstantiated by underlying facts.” United States v. Settegast, 755 F.2d 1117, 1121 (5th Cir. 1985). In this case, the information seeking to link the Subject with the criminal activity is conclusory and unsubstantiated. As such, the Government has failed to establish probable cause.

Accordingly, the Government’s application is hereby denied without prejudice.