The Pennsylvania Supreme Court takes the time to explain application of conflict of laws in criminal cases, but it ultimately determines that the outcome was the same no matter which law applied. The defendant here was being questioned at work, but he was not in custody, and he broke down and admitted his role in a murder. Commonwealth v. Eichinger, 915
A.2d 1122 (2007):

It is a basic principle of conflict of laws cases involving criminal matters that the “question of jurisdiction and that of governing substantive law always receives the same answer. The governing law is always the law of the forum state, if the forum court has jurisdiction.” Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61, 67-67 (Pa. 1983) (citing Leflar, Conflicts of Laws: Choice of Law in Criminal Cases, 25 Case Western Res. L.Rev. 44, 47 (1974)). Jurisdiction relates to a court’s power to hear and decide a case. Ohle, 470 A.2d at 67. This concept has its roots in territorial principles and the idea of sovereignty. Leflar, supra, at 45. Although these conflict of laws concepts have evolved, the traditional theory would argue that the Commonwealth of Pennsylvania is an independent sovereign over persons within its territory and can brook no control of its citizens by a foreign sovereign, nor allow what occurs in its territorial boundaries to be punished by another. Id. (citing Levitt, Jurisdiction over Crimes-II, 16 J.Crim. L. & Criminology 495, 509-10 (1925). Pennsylvania has codified its jurisdiction over the matter under 18 Pa.C.S. § 102(a)(1) which provides for a conviction “under the laws of this Commonwealth” when “the conduct which is an element of the offense … occurs within this Commonwealth.” It is not in dispute that the substantive crime of murder occurred in Pennsylvania. As a result, Pennsylvania has jurisdiction and may apply its law.

Our inquiry could end there. However, although it is not mandated, where more than one state has a substantial connection with the activity in question, the forum state may analyze the interests of all states involved and choose which state’s law to apply. Ohle, 470 A.2d at 68. In Pennsylvania, we do not apply our law just because we have jurisdiction. Rather, we have adopted a flexible choice of law rule which weighs the interests our sister-states may have in the transaction. See Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796, 805 (Pa. 1964). This concept was formally adopted for criminal cases in Commonwealth v. Sanchez, 552 Pa. 570, 716 A.2d 1221, 1224 (Pa. 1998).

To start this analysis, we first note that procedural rules and substantive law require separate considerations. It is a fundamental principle of conflicts of laws that a court will use the procedural rules of its own state. “That is true in both civil and criminal cases, but especially in criminal cases as a sort of corollary to the local nature of substantive criminal law. Procedures in criminal cases are always those of the forum.” Leflar, American Conflicts Law, Fourth Edition, § 116 (1977). Procedural rules are “that which prescribe the methods of enforcing rights.” Commonwealth v. Sanchez, 716 A.2d at 1224. On the other hand, substantive law “gives or defines the right.” Id.

In Commonwealth v. Sanchez, we held that an issue of search and seizure is substantive as it involves a strict question of constitutional law which concerns the fundamental right to be free from unreasonable searches and seizures. Id. Eichinger raises a constitutional question under the Fifth Amendment, which implicates his right to remain silent and his right to counsel, therefore, the issue must be addressed under the principles of conflict between substantive laws.

As noted before, our choice of law rule when there is a conflict between the substantive criminal laws of this Commonwealth and those of a sister-state, requires that we analyze the policies and interests underlying the rule of each state so that the policy of the jurisdiction most immediately concerned will be applied. Commonwealth v. Sanchez, 552 Pa. 570, 716 A.2d 1221, 1223-24 (Pa. 1998). But it remains implicit in this analysis that there be a conflict between the substantive law of New Jersey and the law of Pennsylvania.

In fact, no conflict exists. Both the Pennsylvania and New Jersey Courts must effectuate the guarantee provided in the Fifth Amendment of the United States Constitution that, as a general rule, the prosecution may not use statements, whether inculpatory or exculpatory, stemming from a custodial interrogation of a defendant unless it demonstrates that he was apprised of his right against self-incrimination and his right to counsel. Miranda, 384 U.S. at 444. A suspect in is custody when he is deprived of his freedom of action in any significant way. Id. at 445.

Officer receiving a BOLO on a car had reasonable suspicion based on knowledge of the other officers who put the BOLO. United States v. Rodriguez-Rodriguez, 2006 U.S. Dist. LEXIS 95359 (D. N.M. December 11, 2006).*

Probationer was required to submit to polygraphs as a part of probation, and, during his pretest interview, he admitted having a gun. He was not in custody for Miranda purposes even though he was required to appear. State v. Levens, 214 Ariz. 339, 498 Ariz. Adv. Rep. 8, 152 P.3d 1222 (2007).

Defendant was stopped for having a taillight out, and his license came back as “for business purposes only,” but it seemed that he was not driving for business purposes. The officer asked if he had anything on him, and defendant admitted having “pills.” His admission was voluntary and justified looking for them. State v. Olave, 2007 Fla. App. LEXIS 2389 (Fla. App. 2d Dist. February 21, 2007).*

Officer had reasonable suspicion for a stop based on the description of a wanted person for a robbery posing as Brinks guards. When defendant was seen, his clothing matched the description except for the shirt, and he had a plastic bag in his pocket, useful [supposedly] for carrying the proceeds of a theft. The search of the vehicle was valid. State v. Grant, 2007 Ohio 680, 2007 Ohio App. LEXIS 620 (9th Dist. February 20, 2007).*

Officer had reasonable suspicion of DUI when he got defendant out of the vehicle and smelled of burnt marijuana. State v. Cook, 2007 Ohio 707, 2007 Ohio App. LEXIS 635 (5th Dist. February 12, 2007).*

While investigating a homicide, the officers went to defendant’s apartment to talk to his girlfriend. They did not suspect the defendant was there. She agreed to talk to them at first, but she decided not to when consent was asked for. One officer left to get a search warrant, and the other stayed behind for fear she might destroy evidence. While there, she said that the defendant was hiding there and that she would consent to the search. The officer on the scene called the others back. The consent was valid and the search was reasonable under McArthur. State v. Gay, 214 Ariz. 214, 150 P.3d 787 (2007):

P9 In McArthur, police refused to allow McArthur to reenter his home without a police escort for about two hours, while they obtained a warrant to search the home for drugs. 531 U.S. at 328-29, 121 S. Ct. at 948-49. When McArthur did enter, a police officer stood just inside the door and watched what McArthur did. Id. at 329, 121 S. Ct. at 949. An Illinois appellate court upheld the trial court’s decision to suppress the drug evidence obtained after a search pursuant to the warrant. Id. at 329-30, 121 S. Ct. at 949. The Supreme Court reversed. Id. at 337, 121 S. Ct. at 953. In upholding the search, it relied on the exigent circumstances exception to the warrant requirement. Id. at 331, 333, 121 S. Ct. at 950, 951. The Court considered four circumstances “in combination.” Id. First, the police had probable cause to believe the residence contained contraband. Id.

“Second, the police had good reason to fear that, unless restrained, McArthur would destroy the drugs before they could return with a warrant. . . .

“Third, the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. They neither searched the trailer nor arrested McArthur before obtaining a warrant. Rather, they imposed a significantly less restrictive restraint, preventing McArthur only from entering the trailer unaccompanied. They left his home and his belongings intact-until a neutral Magistrate, finding probable cause, issued a warrant. . . .

“Fourth, the police imposed the restraint for a limited period of time, namely, two hours.”

Id. at 332, 121 S. Ct. at 950-51.

P10 Gay’s challenge centers on the second and third circumstances announced in McArthur. We conclude those requirements were met here. Because Gay and Fresby shared the apartment, it was reasonable for the detectives to believe there might be evidence incriminating Gay in the apartment, and Fresby might have incentive to destroy it. See McArthur, 531 U.S. at 331, 121 S. Ct. at 950 (police claim of “specially pressing or urgent law enforcement need” must be “plausible”). Furthermore, the police made a reasonable attempt to accommodate Gay’s privacy by not searching the apartment until they had obtained a warrant. See id. at 332, 121 S. Ct. at 950 (decision not to search prior to obtaining warrant a factor in reasonableness of temporary seizure). And Gay cannot raise any violation of Fresby’s privacy interests here. See State v. Papineau, 146 Ariz. 272, 273, 705 P.2d 949, 950 (App. 1985) (“Only one whose own rights have been violated may seek the remedy of exclusion.”).

Reopening the suppression hearing, where the court orally suppressed, for admission of a transcript of a preliminary hearing in another court would not alter the outcome, so the motion to suppress remains granted for lack of reasonable suspicion. United States v. Pinckney, 2007 U.S. Dist. LEXIS 4624 (D. D.C. January 23, 2007). The court relates the standard for reopening a suppression hearing where the government admits it erroneously failed to include the transcript without deciding whether the proffered reason was sufficient:

“Motions to reconsider suppression orders or reopen suppression hearings rest with the sound discretion of the Court.” United States v. Dubose, Criminal Action No. 05-372, 2006 WL 1876999, at *5 (D.D.C. July 5, 2006). Where a new submission suggests that suppressed evidence was lawfully obtained and casts doubt upon the suppression ruling, reconsideration might be appropriate. See United States v. Watson, 391 F. Supp. 2d 89, 93-94 n.2 (D.D.C. 2005). In seeking to reopen the record, the government must “provide a reasonable explanation for its failure to present its proffered evidence initially at the first suppression hearing.” Id., 391 F. Supp. 2d at 94 n.3 (citing United States v. Kithcart, 218 F.3d 213, 219-20 (3d Cir. 2000); McRae v. United States, 420 F.3d 1283, 1289 (D.C. Cir. 1969).

Officers found out defendant’s name and address after raiding a child porn provider. They did a knock and talk, and defendant made some admissions, was reluctant to talk to them, and essentially lawyered up. Based on the admissions, the officers called defendant’s probation officer who quickly came and did a home search, and the PO seized the computer. The search was valid under Knights, no matter what Florida law might have said [and it was not clear that it mattered]. United States v. Gomes, 2007 U.S. Dist. LEXIS 4625 (N.D. Fla. January 23, 2007).

In a civil rights case, the detention for a dog sniff was de minimus, and the case is dismissed. The record showed that the dog was on the scene before the first officer completed his duties related to the stop. Hugueley v. Dresden Police Dep’t, 469 F. Supp. 2d 507 (W.D. Tenn. 2007).*

The NY Times reports today that the government claims that the new FISA law, signed August 5th by President Bush that sunsets six months after adoption, led to the arrest of participants in a UK terrorist cell. A source, however, said that the old FISA law was used. See New U.S. Law Credited in Arrests Abroad.

What this means, even to the uninitiated, should be obvious: The President is priming the pump to remove the sunset provision. Congress adopted the new law because of a secret perceived threat. By keeping the threat alive indefinitely, the Administration apparently thinks that Congess will buy into unsunsetting it.

The plaintiff in a § 1983 case won his suppression motion in state court, and then he filed his civil case in 2005. After that, he was indicted federally for the same search and seizure, and that motion to suppress was granted, too. The government moved to dismiss the indictment. Then, he was indicted for a drug conspiracy that did not include the unlawfully seized evidence, and he was convicted and sentenced to 120 months. On the officers’ motion for summary judgment in the § 1983 case, it was held that the different parties precluded the use of collateral estoppel because of the different parties. Pair v. Wilson, 2007 U.S. Dist. LEXIS 67921 (N.D. Fla. July 27, 2007).*

On remand for taking of additional evidence on a suppression issue, the law of the case doctrine generally prohibits reopening the suppression motion for other matters already determined. United States v. Wecht, 2007 U.S. Dist. LEXIS 67795 (W.D. Pa. September 13, 2007): “Defendant proffers no new evidence, new law or other extraordinary reasons why this Court should not follow the law of the case, except with regard to those matters that have been ‘reopened’ by the decision of the Court of Appeals and this Court’s sua sponte scheduling order.”

Defendant has standing only as to the contents of a package, not the exterior. United States v. Villalobos, 2007 U.S. Dist. LEXIS 67451 (D. Ore. September 5, 2007)*:

An addressee has both a possessory and a privacy interest in a mailed package; a possessory interest in the timely delivery of the package, U.S. v. Hernandez, 313 F.3d 1206 (9th Cir. 2002), and a privacy interest in the contents, but not the exterior, of the package, United States v. Jacobsen, 466 U.S. 109, 114 (1984). In this case only Villalobos’ possessory interests in the letter are at issue, as Villalobos concedes, and the law is clear, that she did not have a privacy interest in the exterior of the envelope. See e.g. Katz v. United States, 389 U.S. 347, 351 (1967) (“[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection”).

Defendant found to have voluntarily consented to a search. She also gave a statement, and she was never in custody when she gave the statement. Indeed, she was free to leave and did leave after the statement. United States v. Manning, 2007 U.S. Dist. LEXIS 67597 (D. Haw. September 11, 2007).*

“When a defendant seeks to suppress evidence allegedly obtained as a result of an illegal seizure, the burden of proving that a seizure occurred is on the defendant.” Here, the defendant proved it was, and the government failed to prove that the officers had reasonable suspicion for detaining him. His consent, therefore, was invalid. State v. Zapata-Reyes, 2007 Ida. App. LEXIS 83 (September 14, 2007).*

Defendant received a package at work that apparently was intended for him but did not have his name on it. In it was marijuana. A private search occurred, but at the insistence of a government agent, so the Fourth Amendment applied, and there was no exception to the warrant requirement. [The government glaringly did not claim lack of standing, which it should have because standing generally requires both the defendant’s name be on the box as a sender or recipient.] United States v. Penass, 2007 U.S. Dist. LEXIS 67611 (E.D. Wis. September 12, 2007).*

“Where a motion to suppress evidence obtained from the execution of a warrant does not present a novel question of law that should be decided in order to guide future law enforcement officers and magistrates, it is appropriate for the reviewing court to turn directly to consideration of the officers’ good faith reliance on the warrant. [Leon] at 925.” [Of course,] the good faith exception applies. United States v. Preciado-Avila, 2007 U.S. Dist. LEXIS 67637 (E.D. Pa. September 12, 2007).*

Defendant challenged a search warrant for marijuana based on a religious defense raised under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. The district court held that the defense to possession was not cognizable in a motion to suppress the search because it would involve issuing magistrates in determining religious defenses first. United States v. Lepp, 2007 U.S. Dist. LEXIS 66311 (N.D. Cal. September 6, 2007):

To the extent that Lepp challenges the seizure of his marijuana plants as a violation of RFRA, such an argument is easily set aside. As an initial matter, in challenging the seizure of a religious article, such as a sacrament, Lepp invokes the protections of RFRA to the instant seizures; however, the government’s interest overcomes Lepp’s. The government’s compelling interests in enforcing drug laws by executing valid search warrants in pursuit of that aim is long-established. Compare Rush, 738 F.2d at 512-13 (upholding conviction for marijuana possession under strict scrutiny analysis) with Navajo Nation v. United States Forest Service, 479 F.3d 1024, 1044 (9th Cir. 2007) (“We are unwilling to hold that authorizing the use of artificial snow at an already functioning commercial ski area in order to expand and improve its facilities … is a governmental interest of the highest order.”) (citation and quotations omitted). Nor does this case present the type of narrow tailoring challenge that the Court confronted in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U. S. 418 (2006). The O Centro Espirita court admonished the government for its failure to analyze the requested religious exemption and its effects on the particular claimant. Id. at 431. Here, the government has not resorted to the slippery-slope argument exclusively, which the O Centro Espirita court rejected, but instead has provided argument that the system proposed by Lepp would be unworkable. Magistrates would have to scrutinize all warrant applications for possible indications of religious exercise. “[T]he government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the required religious accommodation would seriously compromise its ability to administer the program.” O Centro Espirita, 546 U.S. at 435 (citing cases in which such a showing was made). It is clear that the government had no more narrowly tailored alternative for executing a search warrant and enforcing the criminal laws than to seize the marijuana plants on both occasions. Lepp continued to cultivate marijuana after the first seizure. Indeed, there is some evidence that Lepp told agents that he would begin replanting marijuana immediately after a seizure of some of his plants. February 11, 2005 Aff. P 8. Additionally, unlike the religious exception granted to certain Schedule I substances under the Controlled Substances Act, 21 U.S.C. section 801 et seq., there is no evidence that the Attorney General has granted exemptions for other religious uses of marijuana or similar drugs. O Centro Espirita, 546 U.S. at 434-36.

Finally, Lepp asks the court to fashion an exclusionary remedy under its power to grant “appropriate relief” for violations of RFRA. 42 U.S.C. § 2000bb-1(c). Because the court has concluded that no such violation occurred, the court declines Lepp’s invitation to expand the exclusionary rule. Nor is such an invitation appropriate. The court can find no authority for suppressing evidence on the basis of a RFRA violation.

The NYTimes.com has this column today: Court Cloaked in Secrecy Shows a Hint of Openness (sub. req.). It is on the ABA Journal’s website as: Wiretap Court Flexes Judicial Muscle:

The court that considers foreign intelligence wiretap applications is showing hints of an independent streak.

The Foreign Intelligence Surveillance Court has operated in secret, even as federal officials disclosed that the court had limited the government’s ability to conduct warrantless wiretaps of overseas communications that are routed through the United States.

“In recent weeks, however, there have been signs of a new independence, perhaps prompted by the administration’s selective disclosures of aspects of the court’s orders,” Adam Liptak writes in his Sidebar column for the New York Times (sub. req.).

Last month, the intelligence court asked the government to respond to a request for release of its secret rulings limiting wiretaps. And the court took the further step of asking the Justice Department to make its responding brief public absent court permission to file under seal.

A CDL license holder is reasonably subject to random drug testing under 49 C.F.R. § 382.305 whenever he becomes a “new employee,” and plaintiff came back to work at the same company three times. There was no factual dispute he consented to the test. Fontaine v. Clermont County Bd. of Comm’rs, 2007 U.S. Dist. LEXIS 65877 (S.D. Ohio September 6, 2007):

Here, the job Plaintiff sought required that he operate equipment, including jet trucks, tractors, and backhoes (doc. 19, Exhibit H). The job further required that he maintain a CDL. (Id.). The Court concludes the Board’s legitimate government interests in having drug-free employees operating such equipment, and its duty to conduct random testing on those employees holding CDL’s, provide ample justification for the drug testing here that outweighs Plaintiff’s Fourth Amendment interests. Skinner, 489 U.S. at 619. The Court simply cannot find unreasonable the drug testing under these circumstances.

Under § 1983, state tort limitations are borrowed, but plaintiff was barred by Heck as long as his conviction was in effect, so he could not bring his action until he set it aside about 16 years after his conviction. Cleary v. County of Macomb, 2007 U.S. Dist. LEXIS 65811 (E.D. Mich. September 6, 2007):

Plaintiff argues that he is asserting constitutional violations under both the Fourth and Fourteenth Amendments. Plaintiff contends that he has alleged a “continued detention without probable clause” claim in violation of the Fourth Amendment and due process violations under the Fourteenth Amendment, including “Brady violation[s] and [] fabrication of evidence claim[s] ….” (Pl.’s Resp. to Barone at 41-42.) Plaintiff argues that the statute of limitations did not begin to run on these claims until the charges against him were dismissed on February 2, 2005.

This Court agrees with Plaintiff. As provided in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), if Plaintiff would have brought his current Fourth and Fourteenth Amendment challenges while his conviction and sentence remained in effect, such a claim would have implied the invalidity of conviction or sentence requiring Plaintiff to “prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 486-87, 114 S. Ct. at 2372. Plaintiff was unable to make the requisite proof until February 2, 2005. Thus, the Court concludes that Plaintiff’s remaining Fourth and Fourteenth Amendment claims against Defendants accrued on February 2, 2005. Because Plaintiff filed the present action on December 12, 2006, well within the three-year limitations period, his claims against Defendants are not time-barred.

Comment: I can’t help but think that when Heck was decided, the Supreme Court thought that it was limiting claims, but now it is being used to extend the limitations period for those who could not have been brought when they were in jail.

We are safer today. No, Osama bin Laden has not been found, and al Qaeda is not in check. But DoJ has found the resources to prosecute 54 counts in a sea turtle smuggling operation in Denver, indicting U.S. and Mexican citizens through the Environmental Crimes Section for violations of the Endangered Species Act. Undercover Sting Nets Five Individuals for Illegal Trade of Protected Sea Turtles and Other Wildlife:

Today’s arrests and the execution of search warrants in the United States and Mexico are the result of a joint operation between the Department of Justice; the U.S. Fish and Wildlife Service, Branch of Special Operations; and Mexican law enforcement authorities. This joint operation represents a significant milestone in the ongoing cooperation between United States and Mexican law enforcement agencies with respect to protecting both countries’ wildlife and natural resources.

Police received information from one of defendant’s neighbors that defendant and his live-in girlfriend had posted pictures form a cellphone on a Sprint PCS website. “The caller provided the address of D’Andrea’s apartment (90 Veteran’s Way in Gloucester, Massachusetts), the log-in name and password for the website, and the number of a cellular telephone used by defendants.” The police went to the website and downloaded the pictures. A search warrant was obtained for defendant’s premises. First, “[t]he warrant permitted the seizure of ‘cameras’ and ‘computer storage devices.’ The modern cellular telephone fits easily into these categories. It can also be a ‘computer accessory,’ as the warrant also specified.[n.4]” Second, the password protection on a website did not provide a reasonable expectation of privacy, rejecting LaFave’s view. United States v. D’Andrea, 2007 U.S. Dist. LEXIS 52558 (D. Mass. July 20, 2007):

Professor Warren LaFave, a preeminent authority on the Fourth Amendment, argues that a person who avails herself of a website’s password protection should be able to claim a reasonable expectation of privacy in the site’s contents. Professor LaFave makes the point that while a service provider has a need to access information regarding the identity of a site holder and the volume and extent of her usage, it has no legitimate reason to inspect the actual contents of the site, anymore than the postal service has a legitimate interest in reading the contents of first class mail, or a telephone company has a legitimate interest in listening to a customer’s conversations. “Reliance on protections such [as] individual computer accounts, password protection, and perhaps encryption of data should be no less reasonable than reliance upon locks, bolts, and burglar alarms, even though each form of protection is penetrable.” LaFave, 1 Search and Seizure § 2.6 at 721 (4th ed. 2006). Professor LaFave’s argument is persuasively echoed in Warshak v. United States, 2007 WL 1730094 (6th Cir. June 18, 2007).

[T]he reasonable expectation of privacy inquiry in the context of shared communications must necessarily focus on two narrower questions than the general fact that the communication was shared with another. First we must specifically identify the party with whom the communication is shared, as well as the parties from whom disclosure is shielded. Clearly, under Katz [v. United States, 389 U.S. 347 (1967)], the mere fact that a communication is shared with another person does not entirely erode all expectations of privacy, because otherwise eavesdropping would never amount to a search. It is true, however, that by sharing communications with someone else, the speaker or writer assumes the risk that it could be revealed to the government by that person, or obtained through a subpoena directed to that person.

. . .

The second necessary inquiry pertains to the precise information actually conveyed to the party through whom disclosure is sought or obtained. This distinction provides the obvious crux for the different results in Katz and Smith, because although the conduct of the telephone user in Smith “may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed.” [Smith,] 442 U.S. at 43. Like the depositor in Miller, the caller in Smith “assumed the risk” of the phone company disclosing the records that he conveyed to it. Yet this assumption of the risk is limited to the specific information conveyed to the service provider, which in the telephone context excludes the content of the conversation. It is apparent, therefore, that although the government can compel disclosure of a shared communication from the party with whom it was shared, it can only compel disclosure of the specific information to which the subject of it has been granted access.

Id. at *10-11 (emphasis in original).

[The first entry into the website by the private party was not state action.]

At day’s end, this case falls clearly into the “assumption of the risk” exception identified in Warshak and Supreme Court precedent. “It is well-settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information.” Jacobsen, 466 U.S. at 117. See also United States v. Maxwell, 45 M.J. 406, 419 (C.A.A.F. 1996) (the sender of an email runs the risk that its recipient will publish its contents). Thus, even granting defendants a reasonable expectation of privacy in the graphic website images of Jane Doe, by sharing the website access information with the anonymous caller, defendants took the risk that their right to privacy in the website’s contents could be compromised.

Comment: It is Wayne LaFave; not Warren. Also, this case helps underscore Maxwell as a leading case.

NYTimes.com posted this article 15 minutes before posted here: F.B.I. Data Mining Went Beyond Targets:

The F.B.I. cast a much wider net in its terrorism investigations than it has previously acknowledged by relying on telecommunications companies to analyze phone-call and e-mail patterns of the associates of Americans who had come under suspicion, according to newly obtained bureau records.

The documents indicate that the F.B.I. used secret demands for records to obtain data not only on the person it was targeting but also details on his or her “community of interest” — the network of people that the target in turn was in contact with. The F.B.I. recently stopped the practice in part because of broader questions raised about its aggressive use of the records demands, which are known as national security letters, officials said Friday after being asked about it.

The community of interest data sought by the F.B.I. is central to a data-mining technique intelligence officials call “link analysis.” Since the attacks of Sept. 11, 2001, American counterterrorism officials have turned more frequently to the technique, using communications patterns and other data to identify suspects who may not have any other known links to extremists.

A plaintiff no longer on probation has no Heck bar to his action. Abusaid v. Hillsborough County Bd. of County Comm’rs, 2007 U.S. Dist. LEXIS 65813 (M.D. Fla. September 6, 2007):

As discussed above, the Eleventh Circuit in its remand Order sua sponte raised the issue of whether the rule in Heck bars any or all of Plaintiff’s claims. See Abusaid, 405 F.2d at 1315, n.9. It noted that a line of post-Heck cases leaves open the question of whether Heck bars § 1983 suits by plaintiffs who are not in custody and thus for whom habeas relief is not available. Citing Wilkinson v. Dotson, 544 U.S. 74 (2005), and Spencer v. Kemna, 523 U.S. 1 (1998), the court suggested that the Heck doctrine may now be understood to bar § 1983 relief only in cases when the alternative remedy of habeas relief is available, noting that in Spencer five justices (four concurring and one dissenting) concluded as much. Given the limited record before it and the need for resolution of certain factual matters, the court declined to weigh in on the matter further. Specifically, the court identified the following factual issues: whether Plaintiff was on probation at the time of filing his § 1983 action and therefore whether habeas relief is available to him; whether his arrest subsequent to filing this claim has any bearing on the issues; and whether any or all of the eighteen claims raised by Plaintiff necessarily imply the invalidity of his conviction or sentence.

Stone v. Powell bar applies to § 2255 proceedings, too. Estupian v. United States, 2007 U.S. Dist. LEXIS 65810 (M.D. Fla. September 6, 2007):

In Ground One of his motion, Mosquera Estupian complains of a Fourth Amendment violation in that his “conviction [was] obtained by [the] use of evidence obtained pursuant to an unlawful arrest.” D-cv-1 at 4; D-cv-2 at 3-7. This claim is also not cognizable in this motion to vacate. Fourth Amendment violations are not cognizable on collateral review as long as the defendant had a “full and fair” opportunity to litigate the claim on direct appeal. See Stone v. Powell, 428 U.S. 465, 494 (1976) (“where the State has provided an opportunity to full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial”); see also, United States v. Ishmael, 343 F.3d 741, 742-43 (5th Cir. 2003) (citing United States v. Cook, 997 F.2d 1312, 1317 (10th Cir. 1993)) (“[I]t is clear that the [Supreme] Court intends for Fourth Amendment claims to be limited in § 2255 proceedings as they are limited in § 2254 proceedings–i.e., to be addressed only if a defendant has not had a full and fair opportunity to raise the claims at trial and on direct appeal); compare, Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978) (“But the applicability of Stone in § 2255 proceedings is somewhat unclear. While the Supreme Court has not definitively resolved the question, dicta in United States v. Johnson, 457 U.S. 537, 562 n. 20 (1982) indicates that the doctrine does apply here.”).

On Law.com, which is a more detailed article for lawyers, and NYTimes.com and most newspapers today: Judge Voids F.B.I. Tool Granted by Patriot Act. The suit concerned National Security Letters, which have been greatly abused. The NY Times version:

A federal judge yesterday struck down the parts of the recently revised USA Patriot Act that authorized the Federal Bureau of Investigation to use informal secret demands called national security letters to compel companies to provide customer records.

The law allowed the F.B.I. not only to force communications companies, including telephone and Internet providers, to turn over the records without court authorization, but also to forbid the companies to tell the customers or anyone else what they had done. Under the law, enacted last year, the ability of the courts to review challenges to the ban on disclosures was quite limited.

The judge, Victor Marrero of the Federal District Court in Manhattan, ruled that the measure violated the First Amendment and the separation of powers guarantee.

Judge Marrero said he feared that the law could be the first step in a series of intrusions into the judiciary’s role that would be “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.”

According to a report from the Justice Department’s inspector general in March, the F.B.I. issued about 143,000 requests through national security letters from 2003 to 2005. The report found that the bureau had often used the letters improperly and sometimes illegally.

The article notes that two other federal courts have had similar rulings.

Diet pill overprescription case with 476 counts resulted from a search warrant for voluminous medical records, and the inclusiveness did not make the warrant defective. It was broad, but not unconstitutionally overbroad. United States v. Kofsky, 2007 U.S. Dist. LEXIS 64161 (E.D. Pa. August 28, 2007):

2. The List of Items to Be Seized Did Not Render the Warrants Executed on April 13, 2006 General Warrants

In the first Motion to Suppress, defendant argues that the five warrants executed on April 13, 2006 were unconstitutional “general warrants” in violation of the Fourth Amendment. In support of this argument, defendant asserts that the twenty-six categories of evidence to be seized were “[t]oo [a]ll-[i]nclusive” to satisfy the Fourth Amendment. The Court disagrees.

The five warrants at issue contained identical lists of twenty-six “Items to Be Seized.” This list of items described “in both specific and inclusive generic terms what is to be seized.” Christine, 687 F.2d at 753. Indeed, the Third Circuit has held that warrants authorizing the seizure of similar items are permissible. Specifically, the court has held that a warrant authorizing the seizure of “[a]ll drugs, drug paraphernalia, cash money, [and] weapons” is not “constitutionally infirm.” United States v. Williams, 3 F.3d 69, 71 n.1 (3d Cir. 1993). Likewise, the Third Circuit ruled that the seizure of “all folders … all checks … all general ledgers (and) all correspondence” is valid under the Fourth Amendment. Christine, 687 F.2d at 753. Under this authority, the list of items to be seized in this case was constitutionally permissible.

In reaching this conclusion, the Court recognizes that the list of items to be seized was extensive, and included “[a]ll controlled substances,” “[a]ll patient charts, logs and/or profiles,” and “[a]ll financial records, documents and materials relating to the personal finances of Albert Kofsky,” without time limitations. Def.’s Mot. Suppress Evidence Seized April 13, 2006, Ex. 1 PP1, 2, 16. However, the fact that the warrants at issue authorized the seizure of a long list of items does not make them unconstitutional general warrants. See United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 149 (3d Cir. 2002) (“Although the scope of the warrant was certainly extensive, the warrant was not general.”); see also United States v. Conley, 4 F.3d 1200, 1208 (3d Cir. 1993) (“[U]se of the word ‘all’, in and of itself, does not render a warrant a general warrant.”). In short, the list of items to be seized was descriptive and did not “vest the executing officers with unbridled discretion to conduct an exploratory rummaging” through defendant’s belongings. Christine, 687 F.2d at 753.

B. The Failure to Specify the Alleged Criminal Activity Is Not Fatal

The search warrants executed on April 13, 2006 did not describe the alleged criminal activity on their face, or in either of the two incorporated attachments (descriptions of the premises to be searched and items to be seized). In the first Motion to Suppress, defendant argues that this “failure to specify the crime, in the warrant itself or by incorporation, is fatal.” Def.’s Mem. Law Supp. at 8. The Court disagrees with this characterization of the law.

. . . Specifically, a description of the criminal activity alleged serves to limit the discretion of the agents performing the search, and in this way may support the position that a search warrant is not a general warrant. . . .

The court also conflated the question of probable cause and the good faith exception, which is the norm in the Third Circuit. It found probable cause and good faith exception as to each challenge to the warrant, including looking for cash because the affidavit for the warrant referred to alleged under reporting of income.

The claimant of the funds put the money in a briefcase and gave it to a courier who kept it with him, and this was not a waiver of his expectation of privacy in the briefcase. United States v. Funds in the Amount of One Hundred Thousand & One Hundred & Twenty Dollars, 494 F. Supp. 2d 960 (N.D. Ill. 2007).

Defendant in jail had a reasonable expectation of privacy concerning a search of his house, but he did not have a reasonable expectation of privacy in the search of another person on the premises. Officers asked an occupant during the search to produce drugs on her person, and she pulled a sock with crack in it from her groin. United States v. Walker, 2007 U.S. Dist. LEXIS 48670 (E.D. Ky. July 3, 2007).*

Defendant did not state enough to get a Franks hearing. The application for the search warrant was a product of “cutting and pasting” from prior warrants, and the inclusion of marijuana on the things to be searched for was obviously a mistake and ignored by the issuing magistrate and ADA that looked at it. United States v. Gocha, 2007 U.S. Dist. LEXIS 48667 (N.D. Iowa July 3, 2007):

If anything, this mixup is an indictment of the over-reliance by law enforcement on form attachments and on “cutting and pasting” in the preparation of search warrant applications. This is understandable in light of the time pressures inherent in obtaining search warrants, where often a large number of law enforcement officials are waiting, sometimes late into the night, for the issuance of a warrant so they can begin their work. Incidents like this one would not occur, however, if more care were taken in the preparation, review, and issuance of warrant papers.

Although there certainly was negligence in the preparation of the search warrant application, the court cannot find on this record that the error was deliberate or reckless. Franks does not apply to negligent misrepresentations. See United States v. Schmitz, 181 F.3d 981, 986 (8th Cir. 1999). Even though this case was, from the beginning, about methamphetamine and guns, and never about marijuana, it is obvious that no one, including the state court judge and the Assistant County Attorney who reviewed the search warrant application, noticed the mistake.

“Dillon, as the officers knew, was on probation or parole, forbidden to carry a weapon. Without his consent, on reasonable suspicion alone, the police could search him and the car he drove. United States v. Knights, 534 U.S. 112, 122, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001). On any of the above grounds, the police permissibly searched the entire car including the dashboard panel where the drugs were found. United States v. Gutierrez-Mederos, 965 F.2d 800, 804 (9th Cir. 1992).” United States v. Dillon, 223 Fed. Appx. 687 (9th Cir. 2007)* (unpublished).

The Eleventh Circuit holds that the exclusionary rule would not be applied because of the good faith exception to a situation where the police in one jurisdiction called another to ask about a warrant on the defendant, and they were told that there was a warrant. It turned out, however, that the warrant had been recalled. The court engaged in a sensitive discussion of the issues and comes out in favor of the government and engaging in a cost-benefits analysis and applying the good faith exception because Leon counseled its application. The District Court sustained the search. United States v. Herring, 492 F.3d 1212 (11th Cir. 2007). The court states the issue:

The facts of this case present an interesting issue involving whether to apply the exclusionary rule. Officers in one jurisdiction check with employees of a law enforcement agency in another jurisdiction and are told that there is an outstanding warrant for an individual. Acting in good faith on that information the officers arrest the person and find contraband. It turns out the warrant had been recalled. The erroneous information that led to the arrest and search is the result of a good faith mistake by an employee of the agency in the other jurisdiction. Does the exclusionary rule require that evidence of the contraband be suppressed, or does the good faith exception to the rule permit use of the evidence?

For want of another way to put it, I’ll call this “Arizona v. Evans once removed”:

There is also the unique circumstance here that the exclusionary sanction would be levied not in a case brought by officers of the department that was guilty of the negligent record keeping, but instead it would scuttle a case brought by officers of a different department in another county, one whose officers and personnel were entirely innocent of any wrongdoing or carelessness. We do not mean to suggest that Dale County law enforcement agencies are not interested in the successful prosecution of crime throughout the state, but their primary responsibility and interest lies in their own cases. Hoping to gain a beneficial deterrent effect on Dale County personnel by excluding evidence in a case brought by Coffee County officers would be like telling a student that if he skips school one of his classmates will be punished. The student may not exactly relish the prospect of causing another to suffer, but human nature being what it is, he is unlikely to fear that prospect as much as he would his own suffering. For all of these reasons, we are convinced that this is one of those situations where “[a]ny incremental deterrent effect which might be achieved by extending the rule … is uncertain at best,” Calandra, 414 U.S. at 348, 94 S. Ct. at 620, where the benefits of suppression would be “marginal or nonexistent,” Leon, 468 U.S. at 920-22, 104 S. Ct. at 3420, and where the exclusionary rule would not “pay its way by deterring official lawlessness,” Gates, 462 U.S. at 257-58, 103 S. Ct. at 2342.

Turning to the third Leon condition, any minimal deterrence that might result from applying the exclusionary rule in these circumstances would not outweigh the heavy cost of excluding otherwise admissible and highly probative evidence. Leon, 468 U.S. at 910, 104 S. Ct. at 3413.

In closing, we note, as the Supreme Court did in Leon, that the test for reasonable police conduct is objective. 468 U.S. at 919 n.20, 104 S. Ct. at 3419 n.20. The district court found that “there [was] no credible evidence of routine problems with disposing of recalled warrants” and updating records in Dale County, and Herring does not contest that finding. If faulty record-keeping were to become endemic in that county, however, officers in Coffee County might have a difficult time establishing that their reliance on records from their neighboring county was objectively reasonable. The good faith exception to the exclusionary rule does not shelter evidence that was obtained in an unconstitutional arrest or search that was based on objectively unreliable information. See Evans, 514 U.S. at 17, 115 S.Ct. at 1194-95 (O’Connor, J., concurring).

The title of this post is argumentative, and you will see why:

Defendant was stopped for a traffic offense, and he was nervous. The officer asked for consent, and defendant refused. A drug dog was called which arrived 20 minutes later. This was within the period required to fill out the paperwork on the traffic ticket, so the continuation of the stop was reasonable. State v. Hisel, 2007 Ohio 3808, 2007 Ohio App. LEXIS 3476 (2d Dist. July 27, 2007). Comment: So, all the officer has to do is drag out completing the paperwork until the dog arrives and everything is OK? This is gross manipulation of the situation by the officer just to make time for the drug dog to arrive and provide cover for extending the stop. And, the appellate court bought into it. Traffic tickets take 2-3 minutes, tops.

Deference to the trial court by the appellate court was lacking. While there was a videotape with audio of the stop, the camera was in a fixed position and could not record everything and the audio was incomplete. The trial court held that the troopers’ encounter with defendants quickly escalated from community caretaking–responding to a disabled vehicle to provide assistance–to an investigative detention. The judge’s findings were close calls. Based on its review of the record, the Supreme Court cannot conclude, however, that those findings were so clearly mistaken that an appellate court should substitute its own judgment for that of the initial factfinder. State v. Elders, 192 N.J. 224, 927 A.2d 1250 (2007), rev’g 386 N.J. Super. 208, 899 A.2d 1037 (2006).

Defendant pulled into the parking lot of the patrol post of the state police at 3 a.m., and two occupants went inside. An officer was curious, so he walked over to the car and it was apparent that the driver was under the influence. This was not a “stop.” State v. Phipps, 2007 Ohio 3842, 2007 Ohio App. LEXIS 3495 (11th Dist. July 27, 2007).*

North Carolina holds that a failure to properly announce was not a “substantial violation” of the state search rule, and it was not the cause of finding the evidence inside under an otherwise valid search warrant. Hudson is cited in passing, but the case was decided under state law that the violation did not advantage the police any, so suppression was not the appropriate remedy. State v. White, 2007 N.C. App. LEXIS 1475 (July 3, 2007):

In the present case, the State and defendant both agree that a substantial violation of G.S. § 15A-251 [the state’s knock and announce statute] occurred because there was no evidence as to why the SIRT team was given the command to execute a forced entry into defendant’s dwelling. However, not all infringements of G.S. § 15A-251 require the suppression of evidence.

G.S. § 15A-974 provides, in pertinent part, that evidence must be suppressed if:

(2) It is obtained as a result of a substantial violation of the provisions of this Chapter. In determining whether a violation is substantial, the court must consider all the circumstances, including:

a. The importance of the particular interest violated;

b. The extent of the deviation from lawful conduct;

c. The extent to which the violation was willful;

d. The extent to which exclusion will tend to deter future violations of this Chapter.

Our Supreme Court has articulated that:

G.S. 15A-974(2) provides that evidence obtained as a result of a substantial violation of the provisions of Chapter 15A must, upon timely motion, be suppressed. The use of the term result in this statute indicates that a causal relationship must exist between the violation and the acquisition of the evidence sought to be suppressed. … [E]vidence will not be suppressed unless it has been obtained as a consequence of the officer’s unlawful conduct …. The evidence must be such that it would not have been obtained but for the unlawful conduct of the investigating officer.

State v. Richardson, 295 N.C. 309, 322-23, 245 S.E.2d 754, 763 (1978)(internal quotation marks and citations omitted). As long as “[t]he evidence at issue was not discovered as a direct result of the entry but as a result of the later search conducted pursuant to the valid search warrant”, the evidence is admissible despite a substantial violation of G.S. § 15A-251. State v. Knight, 340 N.C. 531, 548, 459 S.E.2d 481, 492 (1995).

Here, the search was conducted sometime after the forced entry, and only after the occupants were secured and defendant was read a copy of the warrant and his Miranda rights. It was only then that the search of the premises revealed contraband inside two deep fryers in a room not connected to the point of entry. Defendant does not challenge the search warrant as unsupported by probable cause. And the cocaine would have likely been located even in the absence of the forced entry. See State v. Vick, 130 N.C. App. 207, 219, 502 S.E.2d 871, 879 (1998).

We conclude that the contraband was not subject to suppression because it was not obtained “as a result of” the improper entry. The trial court erred by suppressing the contraband and defendant’s inculpatory statement.

Reversed.

The 10th Cir. decides that a defendant’s barricading himself in a house was not an express rejection of a co-tenant’s consent under Randolph; indeed, Randolph does not even apply. Defendant was futilely attempting to avoid arrest, not object to a search. United States v. McKerrell, 491 F.3d 1221 (10th Cir. 2007):

The factual distinctions between this case and Randolph call into doubt Randolph‘s applicability. McKerrell urges this court to apply Randolph, and exclude the evidence obtained from his home, after deflecting our attention from these distinctions to the instant he shut the door when the officers first arrived at his house. McKerrell contends that his only concern at that moment was to prevent the officers from entering his home–the functional equivalent of expressly refusing to consent to a search of the home. Principal Brief of Defendant/Appellant at 11 (citing United States v. Henderson, 2006 WL 3469538, at *1, *2 (N.D. Ill. 2006) (stating that the defendant “surely included a direction that … [the police] refrain from searching [his] residence” when he said “[g]et the fu*k out of my house”)). To be sure, the district court could have inferred that shutting a door in the face of an imminent arrest amounts to an implied directive to the officers to stay out. Regardless, we conclude that Randolph’s narrow holding does not apply here.

First, unlike in Henderson, the district court here found that McKerrell’s sole concern was to avoid arrest, not to avoid arrest and prevent the officers from entering his home to search. The evidence supports this finding: McKerrell never told the officers to stay out of his home when they arrived; McKerrell discussed the arrest warrants when speaking on the phone with the police, but never expressed concern over the possibility of a search; and McKerrell never told the officers to stay out of his home after he surrendered and the police arrested him, arguably because his concern about being arrested dissipated upon his arrest.

While McKerrell asks us to infer that he impliedly refused to consent when he closed his doors to the police, the parties legitimately dispute whether this conduct related to McKerrell’s desire to avoid arrest or to his desire to direct the officers to leave his property and refrain from searching, or both. Although McKerrell testified that he objected to a search, the district court did not clearly err by finding that McKerrell acted solely to avoid arrest.

Second, whatever meaning we could decipher from McKerrell’s actions, Randolph explicitly declined to conduct this inquiry when it required the defendant to have expressly objected to the search. See Randolph, 126 S. Ct. at 1519. While McKerrell characterizes Randolph as a sweeping pronouncement because Randolph’s introductory paragraph stated that “a physically present co-occupant’s stated refusal to permit entry prevails [over his co-occupant’s consent],” id., McKerrell’s argument ignores that this statement was tethered to the immediately preceding sentence (which asked whether a present co-tenant’s express objection vitiated his co-tenant’s consent), that Randolph carefully delineated the narrow circumstances in which its holding applied, and that Randolph consciously employed a rule requiring an express objection by a present co-tenant. See id. at 1527 (stating that “[t]his is the line we draw, and we think the formalism is justified … [because] there is value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it”) (emphasis added). McKerrell asks us to ignore the Supreme Court’s plain language, reject its consciously-imposed formalism, and apply a rule likely to beget the type of confusion Randolph intended to avoid. We reject this approach.

Third, even if we interpreted the district court’s opinion as finding that McKerrell attempted to avoid arrest by impliedly directing the officers not to enter his residence to arrest him, the police were under no obligation to obey McKerrell’s implied request.

A sufficient factual dispute was shown for plaintiff to survive summary judgment on a claim that her home was entered without a warrant. Officers who provided mere backup could not be sued for a § 1983 violation. Thompson v. Goins, 2007 U.S. Dist. LEXIS 48088 (S.D. Ohio July 2, 2007).*

The First Appellate District of California Tuesday upheld the San Francisco 49ers patdown policy adopted by the NFL. The challenge was under the California Privacy Initiative to avoid the Fourth Amendment. Sheehan v. The San Francisco 49ers, Ltd., 153 Cal. App. 4th 396, 62 Cal. Rptr. 3d 803 (1st Dist. 2007):

In the fall of 2005, in response to an inspection policy promulgated by the NFL, the 49ers instituted a patdown inspection of all ticket holders attending the 49ers’ home games at Monster Park as a condition for entry to the games. The patdowns were conducted by private screeners who, according to the NFL mandate, were instructed to physically inspect by “touching, patting, or lightly rubbing” all ticket holders entering the stadium. The 49ers’ specific practice consisted of screeners running their hands around ticket holders’ backs and down the sides of their bodies and their legs. Officers of the San Francisco Police Department stood nearby during these inspections. The Sheehans are 49ers season ticket holders and were subject to patdowns throughout the 2005 season before each game at Monster Park.

. . .

We concur with the trial court’s decision that the Sheehans have no reasonable expectation of privacy because, by attending the 2005 season games, they had advance notice of the patdown policy and thereafter impliedly consented to the patdowns by voluntarily purchasing the 2006 season tickets. In assessing whether one has a reasonable expectation of privacy, we are mindful that this “is an objective entitlement founded on broadly based and widely accepted community norms.” (Hill, supra, 7 Cal.4th at p. 37.) Thus, customs and physical settings of certain activities may impact an individual’s reasonable expectation of privacy. (Id. at p. 36.) Moreover, a plaintiff’s expectation of privacy may be diminished by advance notice of a potential invasion of a privacy interest and by subsequent voluntary consent to the privacy invasion. Further, “[i]f voluntary consent is present, a defendant’s conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as to justify tort liability.” (Id. at p. 26.)

In this case the Sheehans were subject to the patdowns by private screeners when they attended 49ers’ games in the 2005 season. Because the season had ended by the time the demurrer was heard, a standing issue developed. Without objection, the Sheehans amended their complaint, affirming that they had bought tickets for the upcoming 2006 season. Thus, there is no question that they had full notice of the patdown policy and the requirement of consenting to a patdown prior to entering the stadium for a game. With notice and knowledge of this prospective intrusion, they nevertheless made the decision to purchase the 2006 season tickets. By voluntarily re-upping for the next season under these circumstances, rather than opting to avoid the intrusion by not attending the games at Monster Park, the Sheehans impliedly consented to the patdowns. On these undisputed facts we determine, as a matter of law, that the Sheehans have no reasonable expectation of privacy. Furthermore, the trial court did not abuse its discretion by not allowing leave to amend because there is no reasonable possibility that the Sheehans could amend their complaint to state sufficient facts to establish this element.

It also bears noting that the Johnston II court [the Tampa stadium case from the 11th Cir.], although resolving a Fourth Amendment challenge to the NFL patdown policy, not a Privacy Initiative claim, specifically took issue with the district court’s finding that the plaintiff did not voluntarily consent to the patdown searches: “[T]he Court concludes that Johnston voluntarily consented to pat-down searches each time he presented himself at a Stadium entrance to attend a game. The record is replete with evidence of the advance notice Johnston was given of the searches including preseason notice, pregame notice, and notice at the search point itself. It was clear error for the district court to find that Johnston did not consent to the pat-down searches which were conducted.” Johnston II, supra, ___ F.3d at p. ___ [2007 WL 1814197,*4].)

(Hat tip to reader Jeffrey Lewis, Palos Verdes Peninsula, CA, blog.jefflewislaw.com)