The ACLU of Colorado has threatened to sue a Colorado school district for its practice of searching student cellphone text messages, according to its press release issued yesterday:

According to the ACLU’s letter [to the school district], the searching and transcribing of students’ text messages violates a Colorado statute that was enacted to protect the privacy of telephone and electronic communications. That statute makes it a felony to read, copy, or record a telephone or electronic communication without the consent of the sender or receiver. The letter also explains that searches of cell phones at Monarch High School also violate state and federal constitutional provisions that forbid unreasonable searches and seizures.

The ACLU said it learned of the actions of Monarch administrators in interviews with numerous parents and students who complained about a series of cell phone searches at the end of the last school year. According to the letter, the searches began when a student accused of smoking cigarettes was sent to an administrator’s office. After a search of the student’s pockets and backpack turned up nothing, the administrator searched the student’s cell phone. He then interrogated the student about text messages the administrator characterized as “incriminating.” With names of other students obtained from the student’s text messages, administrators called in additional students, questioned them, and also searched their cell phones. With names obtained in this second wave of questioning administrators then called in a third round of students and questioned them. Transcripts of cell phone messages were placed in the disciplinary files of multiple students, the letter says.

Hat tip to Taylor Pendergrass, Staff Attorney, American Civil Liberties Union of Colorado for providing this.

How the school district can square this with T.L.O. and federal law escapes me. But, school districts often think of themselves and the law unto themselves. At least everytime I have tangled with them they’ve been that way. (We sued the Little Rock School District for telling students to empty their pockets and leave a room, and they would search everything, including backpacks. We won. Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004).)

[cross-linked to Talkleft]

OnStar service, with 5M subscribers, will be able to stop cars so equipped by slowing the engine starting with the 2009 models. OnStar from General Motors is seeking to sell its service to other manufacturers. The GPS system of OnStar already tracks 800-900 cars a month that are stolen. This is reported in today’s New York Times.

A thief has no expectation of privacy in a stolen car, but, as ABC News Good Morning America played up today (because it has eyecathing video of car chases), is a single sentence in the Times article: “GM would be willing to sell the technology to other automakers in an effort to cut police chases.” ABC had video of the car telling the driver it was “being stopped at the request of law enforcement.” Private contractors can stop cars for the police.

Sure, the story is about stopping police chases. But, how long before the police figure out that they can stop people just because they can and then walk up to ask questions under a ruse to assist?

This is not far fetched. Just think about it.

[cross-posted to Talkleft]

Police adequately corroborated informant by reviewing chat logs to determine that there might be evidence on defendant’s computer. Therefore, the warrant was issued with probable cause. In addition, the independent source doctrine would apply because the FBI was conducting its own investigation, and it would have obtained a search warrant, too. United States v. Shuler, 2007 U.S. Dist. LEXIS 69114 (N.D. Iowa September 17, 2007):

By the time Special Agent Kitsmiller contacted Cedar Rapids law enforcement in May 2007, they had already obtained and executed the March 16, 2007, state court Search Warrant. Special Agent Kitsmiller testified at the instant Hearing that if the computers and related materials had not previously been seized by the Cedar Rapids Police Department, then he would have sought a search warrant based on the information gathered on the Bettendorf complaint. Bettendorf authorities had been provided copies of the child pornography which originated at Defendants’ home, and the Court believes that there would have been probable cause to support a search warrant based on the Bettendorf information.

In summary, the Court concludes that even if the state court Search Warrant obtained by the Cedar Rapids Police Department was not supported by probable cause, the computers and related materials would have been obtained by the FBI pursuant to its independent investigation of a separate complaint. That is, the actions by the FBI in seeking a search warrant based on the Bettendorf information would be independent of any information obtained by the state court Search Warrant. Since probable cause existed for a second search warrant, independent of the information obtained in the first search warrant, the independent source doctrine applies.

An official’s refusal to return property lawfully seized does not make a reasonable seizure unreasonable. Certified v. Stetler, 2007 U.S. Dist. LEXIS 69255 (N.D. Ill. September 14, 2007):

Moreover, the Seventh Circuit has rejected the idea that a state actor’s refusal to return once lawfully obtained property can amount to an unreasonable seizure (i.e, that the refusal can transform the seizure from reasonable to unreasonable). See Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003) (“Soldal‘s ‘meaningful interference with a possessory interest’ definition is limited to an individual’s interest in retaining his property”; “once an individual has been meaningfully dispossessed, the seizure of property is complete, and once justified by probable cause, that seizure is reasonable.”). Thus, the fact that Director Creedon failed to return the Rio–in fact, turned it over to Pugi–does not give rise to a constitutional violation. In fact, given the police report, the defendants were under no obligation to investigate Mr. Kramer’s claim that Certified, not Pugi, was lawfully entitled to possession of the Rio. See Reynolds, 488 F.3d at 766; Pasiewicz, 270 F.3d at 524.

Defendant called the police to a stabbing, and the police saw the stabbing victim on the floor unresponsive. The police entry was based on exigent circumstances. The officers could reasonably have believed that it was an emergency and that the victim, and perhaps the caller, were in peril and in immediate need of aid. Upon observing the stab wound and speaking with defendant, they were authorized to retrieve the weapon in order to avoid further injury. No general search was conducted. State v. Williams, 2007 Ohio 4845, 2007 Ohio App. LEXIS 4329 (8th Dist. September 20, 2007).*

Plaintiff denied a preliminary injunction from code enforcement searches where the city photographed outbuildings. It is unlikely that he will prevail on the merits. Hale v. City of Tukwila, 2007 U.S. Dist. LEXIS 69561 (W.D. Wash. September 19, 2007).*

Defendant’s acceptance of probation conditions made his search valid under Knights. All the officers needed was reasonable suspicion, which they had. United States v. Williams, 2007 U.S. Dist. LEXIS 69473 (W.D. Wis. September 17, 2007).*

Officers had a search warrant for defendant’s premises and arrested him there. Within six feet of where he was found was an open walk-in closet, and a weapon was found there. The weapon was validly found during a protective search of the closet. State v. Rankin, 2007 Ohio 4844, 2007 Ohio App. LEXIS 4334 (8th Dist. September 20, 2007).* (Comment: The court made the issue more complicated than it had to be. The officers had a search warrant, and that justified the entry and search for evidence of a robbery which included a gun and clothing worn. Even mentioning protective search was unnecessary. Yes, it would be a valid alternative ground, but even going to that extreme might add confusion to those who are unaware of the scope of search under a search warrant, such as the defendant in this case.)

The Supreme Court has granted cert in Virginia v. Moore (06-1082) on whether a violation of state law is a Fourth Amendment violation. This is an issue of first impression, and it involves tension between Knowles v. Iowa and Atwater v. City of Lago Vista (a particularly insideous and perplexing decision in itself).

Under Virginia law, driving on a suspended license is a class 1 misdemeanor, and the officers should have written a citation. Instead, Moore was arrested. After his arrest, he was Mirandized and a consent to search his hotel room was obtained.

The officers were authorized to issue only a summons to Moore for the offense of operating a vehicle on a suspended license since none of the exceptions in Code § 19.2-74 were present. Thus, under the holding in Knowles, the officers could not lawfully conduct a full field-type search. We find Knowles and Lovelace controlling and hold that the search of Moore was not consistent with the Fourth Amendment. Accordingly, we will reverse the judgment of the Court of Appeals and dismiss the indictment against Moore.

Moore v. Commonwealth, 272 Va. 717, 636 S.E.2d 395, 400 (2006).

See SCOTUSBlog with commentary and links to the petition and response.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Cert was also granted in United States v. Rodriguez (06-1646) involving the Armed Career Criminal Act which has included in the cert grant a consent search issue of no real import. SCOTUSBlog did not feel like expounding, but the petition and response are there. The case below is United States v. Rodriguez, 464 F.3d 1072, 1077-78 (9th Cir. 2006):

Based on the totality of the circumstances and after considering the applicable factors, we conclude that Tammi voluntarily consented to the search. As to the first factor, the district court concluded, and Rodriquez conceded in his brief, that Tammi was not in custody when she consented to the search. Second, the court determined that there was no “indication that firearms were exhibited or drawn,” a conclusion with which Rodriquez also agreed. Third, because Tammi was not in custody, “Miranda warnings were inapposite …” Id. at 504 (citation omitted). Fourth, the court found, and Rodriquez acknowledged, that Tammi knew she had the right to refuse consent. “Knowledge of the right to refuse consent is highly relevant in determining whether a consent is valid.” Id. (alteration and citations omitted). Moreover, where, as here, “the officers themselves informed [Tammi] that she was free to withhold her consent,” “the probability that their conduct could reasonably have appeared to her to be coercive “is “substantially lessened.” United States v. Mendenhall, 446 U.S. 544, 559, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (emphasis added).

Fifth, Deputy Thompson told Tammi that, if she chose not to consent, he could apply for a search warrant and secure her apartment. A “statement indicating that a search warrant would likely be sought and the [apartment] secured could not have, by itself, rendered [Tammi’s] consent involuntary as a matter of law.” United States v. Whitworth, 856 F.2d 1268, 1279 (9th Cir. 1988) (citations omitted). Rather, application of this factor “hinges on whether [Tammi was] informed about the possibility of a search warrant in a threatening manner.” Soriano, 361 F.3d at 504 (citations omitted). “Even assuming, however, that [Deputy Thompson’s statements] were made in a threatening manner so as to imply the futility of withholding consent, when probable cause to justify a warrant exists, the weight of the fifth factor is significantly diminished.” Id. at 504-05 (citations omitted).

Probable cause to justify a warrant existed in this case. …

Defendant was asked for consent to look for drugs during an otherwise valid traffic stop. The officer testified he was trained to ask the question just to see the response, and defendant became nervous. The request was reasonable, and defendant’s consent was valid. United States v. Lax, 2007 U.S. Dist. LEXIS 71143 (W.D. Ky. September 24, 2007):

In this case, Starks decided to ask Lax if there were any illegal substances or drugs in his vehicle, a question which was unrelated to the purpose of the stop-Lax’s failure to stop at a stop sign. Starks testified at the Suppression Hearing that he had been trained to ask that type of question during a traffic stop. When Starks mentioned drugs, Lax’s mannerisms became very suspicious. He began fidgeting and looked away when answering. Starks testified that in his experience, such a response usually indicates that something is wrong. Starks asked Lax for consent to search the vehicle, and Lax gave him verbal consent to do so. Starks did not threaten any kind of retaliation if Lax refused to answer his questions or objected to the search. Under these circumstances, Starks’ request was reasonable.

Affidavit for warrant was sufficient for probable cause. The CI provided information of buys from defendant within the last 48 hours. “First hand observation of drug transactions constitutes a sufficient basis for the informant’s knowledge.” The officer stated that the informant had provided reliable information in the past without detailing it. Nevertheless, it was sufficient to show probable cause. United States v. Underwood, 2007 U.S. Dist. LEXIS 71184 (E.D. N.C. May 26, 2007) (Comment: This comes really close to just stating a conclusion that the informant is reliable. “In the instant case, the information [the officer] provided with respect to the informant’s past cooperative efforts is neither detailed nor the beacon of clarity. However, his submission under oath that the informant had in the past provided reliable information provided a basis from which the magistrate could deduce that the information provided by the CSI with respect to Underwood was reliable as well.”).

Cellphones are obvious sources of information. If your phone is on, you can be tracked.

The Chicago Tribune reported a couple of days ago a Michigan fugitive, traced by cell phone, captured at Union Station:

UNION STATION – A man wanted in a killing at a party store in the Detroit area was arrested Saturday on a Metra train at Chicago’s Union Station after police used cell phone tracing technology to track him.

Federal marshals and Chicago detectives swarmed the downtown station about 3:30 p.m. after being alerted by police in Eastpointe, Mich., that the fugitive, Isaiah Mayweather, 25, was believed to be in the area, said Shannon Robinson, spokeswoman for the U.S. Marshals Service.

He was sought in a holdup Thursday in which two robbers shot two clerks at Buscemi’s Party Shoppe in Eastpointe, a northeast suburb of Detroit, about 10:40 p.m. One clerk died and the other is in critical condition, said Eastpointe Police Inspector John Calabrese. Michigan police have not identified the second suspect, he said.

The American Civil Liberties Union filed a petition for certiorari in its lawsuit against the National Security Agency challenging the government’s so-called “terrorist surveillance program,” ACLU v. NSA, 438 F. Supp. 2d 754 (E.D. Mich. 2006), rev’d 493 F.3d 644 (6th Cir. 2007). The petitioners are: ACLU, ACLU Foundation, ACLU of Michigan, Council on American-Islamic Relations (CAIR), CAIR Michigan, Greenpeace, Inc., NACDL, James Bamford, Larry Diamond, Christopher Hitchens, Tara McKelvey and Barnett Rubin. The respondents are the NSA and Lt. Gen. Keith B. Alexander as Director of the NSA and Chief of the Central Security Service.

Questions presented:

1. Whether the Court of Appeals erred in holding that plaintiffs who have been injured because of government surveillance are precluded from challenging the lawfulness of that surveillance if the government refuses to disclose whether plaintiffs’ communications have been intercepted.

2. Whether the President possesses the authority under Article II of the Constitution to engage in intelligence surveillance within the United States that Congress has expressly prohibited.

Computer hard drive qualified as being in “plain view” when defendant admitted that there might be child porn on it. United States v. Mitchell, 2007 U.S. Dist. LEXIS 74349 (S.D. Ga. October 3, 2007):

The agent then pointedly asked Mitchell whether any “child pornography” would be on any of his computers, and Mitchell once again stated “Yes, probably.” Tr. 10, 93-94. Later, when given access to the office computer, the agent asked if that was the computer that contained the child pornography. Mitchell confirmed that it was. Tr. 11, 92-93. These are not “equivocal” statements. Quite the contrary, they are clear admissions that Mitchell’s office computer contained incriminating evidence stored on his hard drive. These admissions, coupled with Mitchell’s use of AdSoft (the same electronic payment service used by the Illegal CP website) to incur a $79.99 charge (a charge identical to the price for a subscription to that child pornography website), clearly furnished probable cause that Mitchell’s computer contained contraband images of child pornography.

Parole search was invalid because plaintiff was on the parole list in error, and the California courts already suppressed the search. This led to plaintiff suing the officers. The test for exclusion of evidence and qualified immunity are not the same. Willis v. Mullins, 2007 U.S. Dist. LEXIS 74276 (E.D. Cal. September 24, 2007):

Though the law was clear and the language of the California Supreme Court sets out a clear policy in favor of encouraging police to keep accurate records, exclusionary rule analysis differs from qualified immunity analysis. “The exclusionary rule was created to ensure that police would be deterred from acting in an unconstitutional manner by virtue of the knowledge that any evidence seized would be tainted and inadmissible. In such a context, it is logical to hold police officers accountable for the collective knowledge of the entire law enforcement team. However, in a § 1983 action individual civil liability is at issue. In such a situation, the officer can be held accountable–and therefore subject to personal liability–only for his or her own knowledge.” Ingram v. City of Los Angeles, 418 F. Supp. 2d 1182, 1190 (C.D. Cal. 2006). The Central District cites to U.S. Supreme Court dicta which states, “If the flyer [‘wanted flyer’ from another jurisdiction] has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment. In such a situation, of course, the officers making the stop may have a good-faith defense to any civil suit.” United States v. Hensley, 469 U.S. 221, 232 (1985).

Whether the call to the police came in on 911 or not, it was up to them to assess the situation when they got there, and what they were presented with supported exigent circumstances. United States v. Huddleston, 2007 U.S. Dist. LEXIS 74270 (C.D. Ill. October 3, 2007):

Huddleston also argues that a real question exists regarding whether the officers reasonably believed that Huddleston was holding a weapon. The Court disagrees. Dorothy White told them that she saw the handle of a weapon in his hand with the rest of the weapon under a pillow. Officer Larson saw Huddleston on the couch with his hand under a pillow. His observations confirmed Dorothy White’s observation. The officers reasonably believed that Huddleston was armed.

Huddleston also argues that no exigent circumstances existed because he was sleeping, and Dorothy White told the officers not to worry because Huddleston was not going anywhere. The Court again disagrees. Huddleston was in a winter coat, sitting on a couch, holding a gun. He was not asleep in bed. There was a real risk that he could wake up at any time, start shooting and flee.

Huddleston also cites several cases for the proposition that the existence of contraband in the Residence did not create exigent circumstances. … These cases are not applicable because the problem was not the existence of contraband in the Residence. The problem was that there was a trespasser with a violent history who was sitting on the couch with a gun in his hand, waiting for the person he had threatened. The risk of violence was real.

Search warrant for selling prescription drugs over the Internet without a valid basis alleged a sufficient crime to support issuance of the search warrant. United States v. Hernandez, 2007 U.S. Dist. LEXIS 74375 (S.D. Fla. October 4, 2007).*

Plaintiff stated sufficient facts to get to a jury her question of whether her arrest was without probable cause for disorderly conduct. Maiden v. Hawkins, 2007 U.S. Dist. LEXIS 74064 (E.D. Ky. October 3, 2007).*

Officer in hot pursuit of fleeing defendant saw his garage door shut, and they looked in the windows and saw the vehicle he had fled in. This was not an unlawful search. State v. Hawker, 2007 Ohio 5256, 2007 Ohio App. LEXIS 4650 (5th Dist. October 1, 2007).*

While a surveillance team was watching a house, they saw defendant’s vehicle, so they called in the license number and found that the owner’s driver’s license was suspended. They had verified information from a snitch that he would be in possession. When the vehicle left, they attempted to pull it over, and defendant got out and fled on foot. The officers had a basis for pulling him over. State v. Mitchell, 2007 Ohio 5316, 2007 Ohio App. LEXIS 4687 (6th Dist. September 28, 2007).*

The evidence supported the trial court’s finding consent was voluntary. State v. Cottrill, 2007 Ohio 5293, 2007 Ohio App. LEXIS 4655 (5th Dist. September 27, 2007).*

Observed hand to hand drug sale was reasonable suspicion for a stop and a patdown. State v. Harrell, 2007 Ohio 5322, 2007 Ohio App. LEXIS 4665 (8th Dist. October 4, 2007).*

Seizure of a student could be found unreasonable, but the state of law was unclear at the time, so qualified immunity bars a § 1983 claim. Defelice v. Warner, 2007 U.S. Dist. LEXIS 72059 (D. Del. September 28, 2007):

Although the Supreme Court has decided several cases involving searches of students, it has not addressed seizures of students. See Bisignano, 113 F. Supp. 2d at 596. Regarding seizures of students, therefore, the court is only guided by the Supreme Court’s general statements about the relationship between Fourth Amendment rights and the school setting. The Supreme Court has stated that “Fourth Amendment rights … are different in public schools than elsewhere [and that] the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 656 (1995). “In [New Jersey v. T.L.O.], [the Supreme Court] reaffirmed that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). The Supreme Court also stated that T.L.O. emphasized that the nature of the “State’s power over schoolchildren … permit[s] a degree of supervision and control that could not be exercised over free adults.” Vernonia, 515 U.S. at 655 (citing TLO).

The circuit courts that have dealt with seizures in the school setting have concluded that the reasonableness standard, set forth by the Supreme Court in T.L.O., applies equally to seizures of a student’s person. See Shuman v. Penn Manor School Dist., 422 F.3d 141, 148 (3d Cir. 2005) (“[S]eizures in the public school context are governed by the reasonableness standard, giving special consideration to the goals and responsibilities of our public schools.”); Wallace v. Batavia School Dist. 101, 68 F.3d 1010, 1014 (7th Cir. 1995) (“[I]n the context of a public school, a teacher or administrator who seizes a student does so in violation of the Fourth Amendment only when the restriction of liberty is unreasonable under the circumstances then existing and apparent.”); Hassan v. Lubbock Indep. School Dist., 55 F.3d 1075, 1079 (5th Cir. 1995) (“[T]he reasonableness of seizures must be determined in light of all of the circumstances ….”); Edwards v. Rees, 883 F.2d 882, 884 (10th Cir. 1989) (“the same considerations which moved the Supreme Court to apply a relaxed Fourth Amendment standard in cases involving school searches support applying the standard in school seizure cases.”).

Parolee defendant claimed he was homeless, and later his PO discovered he might be living in a hotel. When homeless, the defendant was told to report his whereabouts ever night. He never reported. The officer’s information defendant was in a hotel was sufficient for reasonable suspicion of a search of his “residence” under state law so the residence search is valid. United States v. Franklin, 2007 U.S. Dist. LEXIS 71531 (E.D. Wash. September 25, 2007).

Plaintiff barely stated a claim for relief for entry of his home without a search warrant when the SWAT team showed up because a Verizon telephone worker told the police that plaintiff had threatened him with a rifle. After a 12 hour standoff with plaintiff demanding a warrant, the police told the plaintiff to come out or they were coming in and somebody inside might get hurt in the process. Maloney v. County of Nassau, 2007 U.S. Dist. LEXIS 71162 (E.D. N.Y. September 24, 2007):

Several circuit courts have applied Payton in instances in which the police never physically crossed the threshold but, through threats of force, compelled an individual to exit his home and surrender. See Sharrar v. Felsing, 128 F.3d 810, 819-20 (3d Cir. 1997); United States v. Maez, 872 F.2d 1444, 1450-51 (10th Cir. 1989); United States v. Al-Azzawy, 784 F.2d 890, 893 and n.1 (9th Cir. 1985), cert. denied, 476 U.S. 1144 (1986); United States v. Morgan, 743 F.2d 1158, 1164 (6th Cir. 1984), cert. denied, 471 U.S. 1061 (1985). All of these cases are similar to the case at bar in that they involved instances in which the police surrounded the defendants’ home, then used actual or implied threats of violence to coerce a surrender outside of the home.

. . .

Plaintiff expressly alleges that it was “[t]he continued threat of such harm to Plaintiff’s family” that caused plaintiff to leave his home and surrender to the police. Id. at P 41. In addition, plaintiff alleges that the police “performed the aforesaid acts under non-exigent circumstances.” Id. at P 49. In light of these allegations and the arguable nature of plaintiff’s Payton claim, the County Defendants’ motion to dismiss the first and third causes of action on the ground that plaintiff fails to state a federal Constitutional violation is denied.

In the Brandon Mayfield civil case in the District of Oregon, the judge there yesterday ruled parts of the PATRIOT Act unconstitutional for not requiring probable cause. Findlaw, via AP: “U.S. District Judge Ann Aiken ruled Wednesday that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, ‘now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.'”

From NYTimes.com:

“For over 200 years, this nation has adhered to the rule of law — with unparalleled success,” Judge Aiken’s opinion said in finding violations of the Fourth Amendment prohibitions against unreasonable search and seizure. “A shift to a nation based on extraconstitutional authority is prohibited, as well as ill advised.”

The ruling is a new chapter in a legal battle that began after the Spanish police found a plastic bag with detonator caps in a van near the bombings, which killed 191 people and left 2,000 injured in the deadliest terrorist attack in Europe since World War II.

Initially, the F.B.I. found no match for the fingerprints. But after reviewing a digitally enhanced set of the prints, the agency identified 20 possible matches, including Mr. Mayfield.

Though Spanish officials had doubts about the match, federal agents began surveillance on him and his family, using expanded powers under the Patriot Act. Mr. Mayfield was jailed for two weeks before a federal judge threw out the case.

Mr. Mayfield, 38, who was born in Oregon and brought up in a small town in Kansas, converted to Islam in 1989. He was a lawyer in a child custody case for Jeffrey Leon Battle, who had been convicted of conspiring to aid the Taliban and Al Qaeda.

Mr. Mayfield said his religion and legal work had led investigators to be overzealous in connecting him to the Madrid plot.

Mr. Mayfield sued the government, which apologized and agreed to a $2 million settlement last November. The settlement included an unusual condition that freed the government from future liability with one exception. Mr. Mayfield was allowed to continue a suit seeking to overturn parts of the Patriot Act.

(Comment: The first question I had was whether this is an advisory opinion, and thus no standing under Art. III, since the case was settled. The issue is highly likely to recur, but not with Mr. Mayfield.)

An unauthorized subpoena to appear at a state administrative hearing to testify is not a search and seizure under the Fourth Amendment. Older case law from SCOTUS in point is less than clear, but, applying modern case law, plaintiff cannot prevail because appearing under a subpoena to testify just will not be found to be an unreasonable seizure. Caldwell v. Jones, 2007 U.S. Dist. LEXIS 70702 (N.D. Ind. September 21, 2007):

In the instant matter, like Dawson in Wheeldin, to the extent that Caldwell alleges a Fourth Amendment violation based on the mere issuance and service of the threatening “subpoena” on him, without reference to the fact that he attended the administrative hearing and gave testimony, Caldwell’s Fourth Amendment claim must fail. In their briefs, Defendants correctly note that, like Dawson in Wheeldin, Caldwell was neither arrested, detained, nor held in contempt as a result of the “subpoena.” However, unlike Dawson, Caldwell did respond to the “subpoena” by attending the administrative hearing and giving testimony. See Wheeldin, 373 U.S. at 649-50.

Nevertheless, the Supreme Court’s cursory Fourth Amendment analysis in Wheeldin is limited to the paragraph cited above, and the court’s decision does not provide any further guidance on its reasoning as to what would have been required to constitute a Fourth Amendment violation. Moreover, Wheeldin was decided in 1963, prior to the series of cases that has led to the Supreme Court’s current Fourth Amendment “seizure” jurisprudence, including Terry v. Ohio in 1968, Mendenhall in 1980, and Hodari D. in 1991, the relevant holdings of which are cited above. No explanation is given in Wheeldin as to why the court considered an unauthorized administrative subpoena from the House Un-American Activities Committee as the potential basis for a Fourth Amendment seizure.

Under the modern standards of Mendenhall and Hodari D., Caldwell has not stated a claim for a Fourth Amendment seizure because there was not a sufficient show of authority. Although Caldwell responded to the “subpoena” by attending the hearing, the only threat or show of authority that compelled him to appear at the hearing was the administrative “subpoena” and the threat of possible disciplinary action by his employer. However, the threat of job loss is not protected by the Fourth Amendment. See Driebel v. City of Milwaukee, 298 F.3d 622, 642 (7th Cir. 2002) (citing INS v. Delgado, 466 U.S. 210 (1984)). There was no additional threat from law enforcement or other governmental body that would have restrained Caldwell’s freedom had he not appeared at the hearing. In addition, he could have taken other steps prior to the hearing to challenge the “subpoena;” in fact, he could have simply ignored the “subpoena,” not presented himself at the hearing, and faced the employment consequences of refusing to appear.

When contrasted with the issuance of an arrest warrant, the threat of the “subpoena” served on Caldwell is too feeble to constitute a Fourth Amendment show of authority. In Albright v. Oliver, the Supreme Court in both the plurality opinion and the concurrence opined that the issuance of an arrest warrant coupled with a subsequent self surrender to authorities constituted a seizure under the Fourth Amendment, with the issuance of the arrest warrant equaling a “show of authority” for the purposes of the Fourth Amendment. 510 U.S. at 271, 276.

Defendant had been arrested and separated from his vehicle. Because there was probable cause for a search of the car, the automobile exception applied. The court questions the automobile exception. United States v. Strese, 2007 U.S. Dist. LEXIS 70254 (E.D. N.Y. August 8, 2007):

2. Concerns About The Applicability Of Controlling Precedent In This Case

The government’s search of Strese’s SUV falls squarely within both aspects of the automobile exception to the warrant requirement as it has been applied in controlling cases, as cited above, that have interpreted the rule in the aftermath of Carroll. As a result, the only remaining issue before the court is whether there existed probable cause to search Strese’s SUV at the time the agents did so, which I address in the next section of this discussion. Nevertheless, while I must recommend that the court adhere to the controlling law of this circuit, I must also report that in my view, the case law that extends to this case the automobile exception to the presumptive warrant requirement misapplies the rationale for that exception, and therefore allows the government in this case to use evidence that I believe it seized in violation of the Fourth Amendment. Accordingly, before proceeding to an analysis of the probable cause issue, I briefly set forth my concern about the case law in the event that the court considers it relevant to the disposition of this motion.

As noted above, the automobile exception to the presumptive warrant requirement rests on two independent rationales: first, that the “readily mobile” nature of an automobile is a form of exigency that normally excuses the warrant requirement, on the ground that the automobile could be moved while the warrant application is pending; and second, that the diminished expectation of privacy in an automobile renders the presumptive warrant requirement inapposite. The circumstances of this case show why those rationales do not always apply in full force when agents wish to search the contents of an automobile and have probable cause to do so.

The “readily mobile” justification for the automobile exception should not apply here for several reasons. First, the rule that the defendant’s arrest is no bar to the application of the exception–on the theory that a confederate could have access to the vehicle–is overbroad, in that it applies even where, as in this case, the circumstances suggest that there is no reasonable likelihood of the existence of such a confederate. Second, it also impermissibly relieves the government of its burden of establishing the reasonableness of the warrantless search: if the government could demonstrate probable cause to believe that Strese or a confederate was in a position to remove the car while a warrant was being sought, the rule would make sense–but that is a showing that the government should bear the burden of making if it seeks to be relieved of its normal obligation to obtain a warrant.

Moreover, even if reliance on the existence of a wholly imagined confederate would justify the exception in circumstances where the car remains where it was found, it makes no sense where, as here, government agents seize the car and maintain it in their custody. In the latter circumstances, the readily mobile nature of the vehicle plainly justifies the seizure only, and not the subsequent search. There is simply no reason why the latter cannot await the issuance of a warrant as the Fourth Amendment presumptively requires whenever the government wishes to search a person’s “effects.” See Cady v. Dombrowski, 413 U.S. 433, 439 (1973) (vehicles are effects within the meaning of the Fourth Amendment); cf. California v. Acevedo, 500 U.S. 565, 588 (1991) (differentiating between effects and vehicles).

The reliance on a lowered expectation of privacy in a vehicle is likewise overbroad and, in the circumstances of this case, unreasonable. I agree that members of our society can have no reasonable expectation that items within the cabin of an automobile, or even in the trunk, will remain private. Such items are necessarily and regularly exposed to the scrutiny of others in the course of using a vehicle to transport them. But if a person creates a secure storage space in an automobile for the transportation of sensitive private materials, I am less confident that society will reject as unreasonable that person’s expectation of privacy. For example, a doctor who works out of both a home office and a hospital may need to transport privileged medical records between the two, and may for that purpose take precautions against such records being visible during transportation–either by maintaining a locked container within the car, or even going so far as to create a hidden compartment that will be less likely to be found if vandals break into the car. The expectation that such a storage space should remain private seems to me to be no more or less reasonable than the expectation that a sealed envelope in which such records could alternately be mailed should also be subject to the Fourth Amendment’s presumptive warrant requirement. See United States v. Jacobsen, 466 U.S. 109, 114 & n.7 (1984).

Thus, the case law on which I rely for my recommendation creates boundaries on the “automobile exception” – specifically, that the search of a vehicle may be as broad as that which a magistrate could authorize on an adequate showing of probable cause, see Ross, 456 U.S. at 823-24–that fail to safeguard individual rights against official mistakes. The rule essentially puts an individual’s privacy rights at the mercy of a law enforcement officer’s subjective assessment of whether a locked container contains contraband rather than on the mediating consideration of a detached and neutral magistrate. I believe that such a departure from the normal requirements of the Fourth Amendment is not justified either by a theoretical (but in this case demonstrably non-existent) possibility that a vehicle can be moved while a warrant application is pending, or by an artificially narrow assumption about the reasonableness of a vehicle occupant’s expectation of privacy. Further, such a broad application of the automobile exception creates a class of unquestionably private materials that cannot effectively be transported with a reasonable expectation of privacy–a class that is disturbingly larger for those of lesser economic means who cannot afford alternate shipping options.

The cases upon which I rely in recommending that the court deny the motion do not square such concerns with the rationale for the automobile exception. They simply announce a rule that plainly excuses the agents’ decision in this case not to seek a warrant that was easily available. I have no authority to recommend departure from that rule simply because I believe it produces a result that seems inconsistent with the Fourth Amendment. I therefore proceed to an analysis of the probable cause issue.

Defendant was arrested for driving on a suspended license, and a search of his vehicle produced 53 pounds of marijuana and a gun. That supported a probation search of his premises. State v. Sowards, 2007 Ohio 4863, 2007 Ohio App. LEXIS 4321 (4th Dist. September 17, 2007).*

Defendant was sitting in his car talking on a cellphone when a police officer pulled up and activated the blue lights, directing he get off the call. This was without suspicion of any crime and could not possibly be justified under the community caretaking function because there was nothing to care for [my words, not the court’s]. State v. Waters, 2007 Tenn. Crim. App. LEXIS 746 (September 21, 2007).*

Officer got consent to enter from the tenant of the residence, and he had probable cause to arrest the defendant inside based on strong reason to believe that the defendant was involved in a shooting, driving a car that was registered to the tenant and the car was found outside. United States v. Orejuela, 2007 U.S. Dist. LEXIS 69716 (D. Del. September 20, 2007).*

Plaintiff was arrested by the defendant who procured a warrant for the plaintiff for practicing psychology without a license. In the papers in the civil case against the defendant, the plaintiff admitted there was probable cause for the arrest, so the officer was entitled to summary judgment. Alexander v. Harrington, 2007 U.S. Dist. LEXIS 69879 (W.D. Ky. September 19, 2007).*

From Saturday’s Washington Post: Collecting of Details on Travelers Documented / U.S. Effort More Extensive Than Previously Known. The article is about international travelers and what Customs officers see in their luggage, which is noted and secretly logged. It came to light when travelers sought their own records. They claim that the collection of this information violates the Privacy Act. It was disclosed on Friday on Wired News: Carrying Subversive Literature on Int’l Flights Will Get You Noticed, But Tom Clancy’s OK For Now. If you get a chance, read both articles.

From the WaPo post:

The U.S. government is collecting electronic records on the travel habits of millions of Americans who fly, drive or take cruises abroad, retaining data on the persons with whom they travel or plan to stay, the personal items they carry during their journeys, and even the books that travelers have carried, according to documents obtained by a group of civil liberties advocates and statements by government officials.

The personal travel records are meant to be stored for as long as 15 years, as part of the Department of Homeland Security’s effort to assess the security threat posed by all travelers entering the country. Officials say the records, which are analyzed by the department’s Automated Targeting System, help border officials distinguish potential terrorists from innocent people entering the country.

But new details about the information being retained suggest that the government is monitoring the personal habits of travelers more closely than it has previously acknowledged. The details were learned when a group of activists requested copies of official records on their own travel. Those records included a description of a book on marijuana that one of them carried and small flashlights bearing the symbol of a marijuana leaf.

The Automated Targeting System has been used to screen passengers since the mid-1990s, but the collection of data for it has been greatly expanded and automated since 2002, according to former DHS officials.

Officials yesterday defended the retention of highly personal data on travelers not involved in or linked to any violations of the law. But civil liberties advocates have alleged that the type of information preserved by the department raises alarms about the government’s ability to intrude into the lives of ordinary people. The millions of travelers whose records are kept by the government are generally unaware of what their records say, and the government has not created an effective mechanism for reviewing the data and correcting any errors, activists said.

The activists alleged that the data collection effort, as carried out now, violates the Privacy Act, which bars the gathering of data related to Americans’ exercise of their First Amendment rights, such as their choice of reading material or persons with whom to associate. They also expressed concern that such personal data could one day be used to impede their right to travel.

Defendant was accused of surreptitiously videotaping women at his house when they disrobed. This authorized a search warrant for his computer because of intricate wiring described to the officers for recording, storage, and display of videos. This led to discovery of child porn on defendant’s computer, and a second search warrant was issued for that. He argued that the search warrant for the videos lacked probable cause based on a tortured reading of the statute that essentially would have any woman in an intimate setting not having an expectation that she would not be recorded. The court would not accept such a construction because it would nullify the statute. The officers showed enough to get to the computer because they could not predict how the images were recorded and stored. United States v. Alexander, 2007 U.S. Dist. LEXIS 68290 (W.D. Mo. September 14, 2007)*:

The affidavit supports the inference that Alexander used a variety of means to record and store images. At the time the officers applied for the warrant, they knew only that potential incriminating evidence of invasion of privacy existed; they did not know the particular electronic format in which the evidence may have been maintained by Alexander. That evidence may have been hard copy videotapes or DVDs or digital feed into a computer. See United States v. Summage, 481 F.3d 1075, 1079 (8th Cir. 2007). The search for evidence of invasion of privacy on the computer was within the scope of the warrant which led to Judge Midkiff’s second warrant to search for child pornography.

Defendant officers lose on apparent authority for consent search claim where the person they claimed had authority had no key, said she lacked authority, and, at their request, went in through a window she had to break, setting off a burglar alarm. Alternatively, there were no exigent circumstances for the entry by the time they decided to enter. “If so, there would have been sufficient time to obtain a search warrant, rendering both prongs of Defendants’ exigent circumstances argument little more than post hoc rationalizations for the search.” Defendants’ motions for summary judgment denied. Plevritis v. City of Chicago, 2007 U.S. Dist. LEXIS 68518 (N.D. Ill. September 17, 2007).*

Concern for booby traps was exigent circumstances for nature of entry, but it was a limited exigency that dissipated as soon as officers determined there were no booby traps. “Because [the executing officer] did not read the warrant, his reliance on it was not reasonable or in good faith. The court concludes that Leon does not protect the search and seizure from suppression in this case.” United States v. Cofield, 2007 U.S. Dist. LEXIS 68720 (M.D. Ala. February 23, 2007) (USMJ R&R):

In the instant case, Jordan testified that as he approached the shed, he smelled ammonia. He also observed that the shed had motion sensors, closed circuit surveillance cameras, and power running to the shed. According to Jordan, the officers were concerned about the possibility of the shed being booby-trapped.

Once we began smelling the ammonia, found the tank, saw the camera systems and knew we had power going to the trailer, and that it was – the standard door was locked from the inside, we weren’t sure what the safest method would be to breach the door and make entry. I consulted with Mr. Maddox and he stated that he had a high pressure water cannon system that they use. They are able to breach windows without detonating anything that might be attached and then we could use a mirror system to look around the inside and see if anything appeared booby trapped to the doors.

(Supp. Evid. H’rg Tr. at 17).

The officers were able to use the water cannon to breach the window and determine that the shed was not booby-trapped. (Id. at 24). Certainly, the potential harm to officers and others of booby traps is the type of circumstance that permitted the officers to breach the shed windows with the water cannon. However, once the officers determined that the shed was not booby-trapped, the exigency ended and there was no reasonable basis for the officers to continue their intrusion. Accordingly, because there were no exigent circumstances when they entered the shed and searched, the warrantless search was not justified. In short, all of the evidence seized as a result of the search of Jason’s shed is due to be suppressed unless Leon‘s good faith exception applies. The court turns to that question now.

And, since the officer did not read the search warrant, he could not claim good faith reliance on it.