The U.S. Department of Justice website has links on its homepage, at least as of now, of its Inspector General’s findings on abuse of National Security Letters not being used for national security purposes.

• Attorney General’s letter responding to IG

• Attorney General’s speech of March 9

• FBI’s letter responding to IG

• DoJ’s response

• DoJ factsheet on NSLs

Did anybody, DoJ employees included, think that NSLs would not be confined to national security purposes only? Of course not. If history of the power to search and seize has proved anything, it is this: To just grant power to law enforcement insures that it will be exercised to the fullest extreme possible, so Congress in granting the power had to know what was coming.

The Virginia Supreme Court sustained an anticipatory search warrant that potentially failed to satisfy the second Grubbs prong. Since the second question was too difficult to decide, it just punted and went to the good faith exception, and, of course, found the search valid. Ward v. Commonwealth, 2007 Va. LEXIS 4 (January 12, 2007):

This probable cause determination, sufficient to authorize the issuance of an anticipatory search warrant, was then described by the Supreme Court as a two-pronged inquiry by the issuing magistrate:

“[F]or a conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place,’ Gates, [462 U.S. at 238], but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination. See Garcia, [882 F.2d] at 703.

Grubbs, 126 S. Ct. at 1500.

In the present case, it appears self-evident that the first prong of the Grubbs inquiry, the probability that the package would be found at 129 South Old Church Street, was satisfied by the terms of Detective Riley’s affidavit. The second prong of the Grubbs probable cause analysis, where the magistrate determines if “there is probable cause to believe the triggering condition will occur,” is not so easily answered. Grubbs may limit the probable cause analysis only to that information before the magistrate at the time the decision to issue the warrant is made: “The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination.” If that is so, then events ex post the issuance of an anticipatory search warrant could not be used to satisfy the probable cause requirement.

However, it is unnecessary for us to resolve whether the Court of Appeals analysis meets the requirements of Grubbs because the Commonwealth’s assignment of cross error is dispositive in this case. Accordingly, we will assume, but expressly do not decide, that the search warrant in this case failed to meet the second prong of the probable cause analysis in Grubbs and turn our attention to the assignment of cross error.

…

In the present case, the record does not reflect that the executing officers knew or should have reasonably known that their reliance on the warrant was objectively unreasonable. The address listed on the package was very similar to the address searched. Furthermore, the actions of the executing officers in this case were analogous to those described in Polston and Derr. In both cases, the defendant contended the affidavit relied upon by the magistrate lacked a substantial basis to find probable cause to issue the search warrant. Polston, 255 Va. at 502, 498 S.E.2d at 925; Derr, 242 Va. at 419-20, 410 S.E.2d at 665. Nonetheless, the Court held the evidence seized during the search conducted pursuant to the warrants was admissible under the good-faith exception because the officers “acted in good faith, reasonably, and under the authority of an apparently valid search warrant.” Polston, 255 Va. at 504, 498 S.E.2d at 926; Derr, 242 Va. at 422-23, 410 S.E.2d at 667. The officers who conducted the search in the case at bar similarly acted in good faith, based on the authority of an apparently valid search warrant.

Lastly, the Supreme Court in Leon stated the good-faith exception will not apply where a warrant is “so facially deficient – i.e., in failing to particularize the place to be searched or the things to be seized – that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923 (citing Massachusetts v. Sheppard, 468 U.S. 981, 988-991 (1984)). Clearly, this exclusionary circumstance does not apply as the affidavit and search warrant in the case at bar were explicit as to the place to be searched and the items for which a search was to be conducted.

None of the circumstances described in Leon as exclusions to the application of the good-faith exception apply in this case. Moreover, exclusion of the evidence obtained by the search warrant would not further the purposes of the exclusionary rule.

Comment: Another example of the good faith exception causing the development of the law to become stifled. The Virginia Supreme Court practically wrote the second Grubbs requirement out of the law by saying “close enough for government work.”

Anonymous tip was so deficient in information of bad acting by the defendant that it could not support a stop on reasonable suspicion. At best, all the police knew was that defendant was drinking a beer, but he had a drug arrest record so they decided to stop him. State v. Grimes, 2006 Wisc. App. LEXIS 1248 (December 27, 2006).*

Defendant consented to a search of his car, but he withdrew consent to a locked metal briefcase. He was first asked for the key and did not answer. Then he said it was not his and he could not consent to its search and seizure. The Washington Supreme Court found no abandonment of the expectation of privacy, reversing the court of appeals (but agreeing with the court of appeals that the defendant had standing). State v. Evans, 159 Wn.2d 402, 150 P.3d 105 (January 11, 2007), rev’g 129 Wn. App. 211, 221, 118 P.3d 419 (2005):

The Goodman and Zakel decisions suggest to us that a denial of ownership, by itself, did not divest Evans of his privacy interest in the briefcase. But as the Court of Appeals noted, “our courts have not analyzed whether one can disclaim property but still challenge a later search, where the disclaimed property remained in an area where one has a reasonable expectation of privacy.” Evans, 129 Wn. App. at 222. As a result, we consider the guidance offered by Goodman and Zakel in the context of how courts in other jurisdictions have approached a disclaimer of ownership.

A survey of decisions from these other jurisdictions supports a recognition that Evans retained a privacy interest in the briefcase. These courts have concluded that a defendant’s denial of ownership does not divest him or her of a privacy interest in that property, provided the search takes place in an area where the defendant had a privacy interest. For example, in State v. Huether, 453 N.W.2d 778 (N.D. 1990), the defendant denied ownership of a bag that was found stuffed under the front seat of his car. The court noted there that the defendant had not discarded the property in a public area, but rather that it was located in an area in which he retained a privacy interest, his car. The court said, as a result, “[t]here is little doubt that Huether had an expectation of privacy in his vehicle and in every container therein that concealed its contents from plain view.” Id. at 781. Like Huether, Evans did not discard the briefcase and he retained a privacy interest in the car that was searched.

The holding in Huether is consistent with the rulings of other state courts. The Illinois Supreme Court, for example, has indicated that the court must look at “‘the totality of the circumstances, but pay particular attention to explicit denials of ownership and to any physical relinquishment of the property.'” People v. Pitman, 211 Ill. 2d 502, 813 N.E.2d 93, 105, 286 Ill. Dec. 36 (2004) (quoting United States v. Basinski, 226 F.3d 829, 836-37 (7th Cir. 2000)). But when Illinois courts pay close attention to a disclaimer of ownership, the presence of one is not sufficient, by itself, to demonstrate voluntary abandonment. See, e.g., People v. Lee, 226 Ill. App. 3d 1084, 590 N.E.2d 1000, 1002, 169 Ill. Dec. 81 (1992) (confirming privacy interest for purposes of standing). For example, when a defendant denied ownership of a bag stuffed under the front seat of his car, it did not constitute voluntary abandonment. Id. New York’s highest court has reached a similar conclusion, indicating that “[s]tanding alone, the surrender of control or disclaimer of ownership does not always establish a waiver.” People v. Ramirez-Portoreal, 88 N.Y.2d 99, 666 N.E.2d 207, 213, 643 N.Y.S.2d 502 (1996) (citing 1 LAFAVE, supra, § 2.6(b)).

Holding the same is United States v. Felix, 2007 U.S. Dist. LEXIS 1957 (S.D. Cal. January 9, 2007), posted yesterday.

Prisoner’s claim for damages stemming from an alleged miscalculation of his parole-eligibility date is barred under Heck v. Humphrey, 512 U.S. 477 (1994). Illegal sentence must be challenged in a habeas action. Robertson v. Sumner, 2007 U.S. App. LEXIS ___ (8th Cir. March 12, 2007) (unpbulished).

Plaintiff was arrested under a mistaken belief that she was a person wanted on a warrant for domestic battery: her name was the same as the other person’s alias. Before the strip search, however, officers had subjective information that she was not the same person, and this precluded summary judgment for the defense. Archuleta v. Wagner, 2007 U.S. Dist. LEXIS 14261 (D. Colo. February 27, 2007).

Fellow officer shot during an arrest of a suspect stated no Fourth Amendment claim because he was an unintended victim. Small v. City of Philadelphia, 2007 U.S. Dist. LEXIS 14323 (E.D. Pa. February 26, 2007):

Plaintiff asks us to extend the definition of a Fourth Amendment seizure to encompass the foreseeable, but unintended, victims of deadly force directed toward others. Plaintiff has not identified any authority which supports the proposition that the Fourth Amendment protects individuals who are foreseeable victims of deadly force intentionally used against others and we have found none. Cf. Schultz v. Braga, 455 F.3d 470, 482 (4th Cir. 2006) (noting that “the Fourth Amendment does not protect persons who were merely ‘reasonably foreseeable victims’ of excessive force inflicted upon another”). Indeed, the Third Circuit has explained that, unlike the situation where the police intentionally shoot a person who is mistakenly believed to be a criminal, there is no Fourth Amendment seizure where the police mistakenly shoot an innocent bystander while attempting to shoot a criminal:

“if a police officer fires his gun at a fleeing robbery suspect and the bullet inadvertently strikes an innocent bystander, there has been no Fourth Amendment seizure. If, on the other hand, the officer fires his gun directly at the innocent bystander in the mistaken belief that the bystander is the robber, then a Fourth Amendment seizure has occurred.”

Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000) (citing Medeiros v. O’Connell, 150 F.3d 164, 168-69 (2d Cir. 1998); Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795 (1st Cir.1990); Brower, 489 U.S. at 596). We find, accordingly, that because Plaintiff was not the intended target of Redanauer’s gunshot, he was not subject to a Fourth Amendment seizure. Defendants’ Motion for Summary Judgment is, accordingly, granted with respect to Plaintiff’s Section 1983 claim for violation of his Fourth Amendment rights.

Officer stopped defendant for swerving slightly, and, during the conversation, the defendant offered consent to look in the back of his truck. The officer, however, did not look at that time, and he kept talking to the suspects and reasonable suspicion was building to continue the stop. Ultimately, he found that interior screws were missing, and then he used a drug dog to sniff and drugs and a gun were found hidden there. United States v. Grant, 2007 U.S. Dist. LEXIS 14221 (S.D. Tex. February 28, 2007).*

§ 1983 case was defeated by plaintiff’s admission there was probable cause for arrest. Cox v. Pate, 2007 U.S. Dist. LEXIS 14419 (W.D. Pa. February 27, 2007).*

Defense counsel had no duty to argue every conceivable permutation of his suppression position developed in 20/20 hindsight. United States v. Ringgold, 2007 U.S. Dist. LEXIS 13960 (D. Nev. February 22, 2007):

Finally, Mr. Valladares states in his affidavit that he kept Movant aware of all stages of the criminal proceeding concerning the motion to suppress, especially what issues were going to be raised in the motion, and that Movant agreed that this was the most fruitful course of action. Movant never disputes this. Rather, with 20/20 hindsight, Movant argues that counsel should have raised every conceivable argument, no matter how tenuous, the failure of which allegedly renders counsel’s representation unreasonable. Contrary to Movant’s conclusory arguments, counsel’s performance was reasonable. The Sixth Amendment does not require counsel to raise every conceivable argument during a hearing or in a motion. Here, counsel raised what appeared at the time to be the most fruitful issues well within the confines of the Sixth Amendment.

Some of plaintiffs’ claims as to actions against protestors constituting allegations of herding by force, unreasonable use of tear gas and pepper spray, and shooting them with nonlethal projectiles while they were not doing anything unlawful except not moving survive defendants’ motions for summary judgment. Rauen v. City of Miami, 2007 U.S. Dist. LEXIS 14931 (S.D. Fla. March 2, 2007):

This action arose from the events surrounding the Free Trade of the Americas (“FTAA”) ministerial hearings, which took place in Miami, Florida in November 2003. Plaintiffs, Holly Rauen (“Rauen”) and Nikki Hartman (“Hartman”), contend that a concerted effort by all Defendants to unlawfully limit protest at the FTAA resulted in multiple violations of Plaintiffs’ constitutional rights by various law enforcement agencies and their officers. Plaintiffs also assert state common law tort claims for battery and negligence against the various law enforcement agencies.

. . .

Plaintiffs allege that each of the agencies that was part of the JLEC was instrumental in devising the policies that allegedly resulted in violations of Plaintiffs’ constitutional rights and that those agencies, in essence, acted as a single entity, particularly in their agreed-upon use of force and arrest protocols. (See id. PP 8, 24). Through the implementation of the joint operational security plan, Plaintiffs allege, Defendants intentionally disrupted core political speech and other expressive activity “through the wrongful ‘herding’ of unarmed, peaceful demonstrators, and the systemic use of para-military tactics and offensive weapons.” (Id. P 1). Plaintiffs allege that Defendants’ activities resulted in egregious violations of their First and Fourth Amendment rights and that the implementation of the joint operational security plan resulted in a “de facto suspension of constitutional rights in Miami” during the FTAA meetings. (Id. P 1).

Although the TAC [Third Amended Complaint] alleges that the entire operational plan was unlawful, it primarily focuses upon the activities surrounding the “herding” of protestors and the unprovoked attack by law enforcement officers upon peaceful protestors on Biscayne Boulevard and near the Bayfront Amphitheater on November 20, 2003. Specifically, Plaintiffs allege that they were subjected to “herding,” “political profiling,” and unreasonable force, in violation of the First and Fourth Amendments, all without individualized suspicion. (Id. P 20).

. . .

C. Existence of Fourth Amendment “Seizure”

The [Third Amended Complaint] contains eleven counts predicated upon what Plaintiffs assert were actions by the Defendants that constituted “herding” of the Plaintiffs and the use of force and excessive force in violation of the Fourth Amendment’s proscription against unreasonable seizure. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” U.S. Const. amend. IV. The eleven counts are grouped into four categories: Monell liability against the Municipal Defendants, supervisory liability against specific Individual Defendants for directing acts that resulted in alleged violations of the Fourth Amendment, supervisory liability against specific Individual Defendants for failure to intervene to prevent alleged violations of the Fourth Amendment, and conspiracy by the Municipal Defendants to violate Plaintiffs’ Fourth Amendment rights.

. . .

In Coles, plaintiffs were at an anti-war demonstration and alleged that Oakland police officers used excessive force without warning, firing projectiles, including wooden dowels, using, often at close range, “flexible batons” or bean bags, clubs, and sting ball grenades filled with rubber pellets and tear gas, and charging plaintiffs with motorcycles. See No. C03-2962 TEH at 2. The allegations stated that police herded plaintiffs from the port area to a station more than a mile away. See id. The court addressed whether plaintiffs had sufficiently alleged an “other seizure” sufficient to trigger Fourth Amendment protections. See id. at 4 (citing Graham v. Connor, 490 U.S. 386, 395 (1989) (“other seizure” to trigger the Fourth Amendment and its “reasonableness” standard) and County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (where there is no search or seizure, use of force is unconstitutional only if it “shocks the conscience” under the Fourteenth Amendment)).

In its review of applicable law, the court in Coles found persuasive the statement in Brower, 489 U.S. at 596-97, that a Fourth Amendment seizure occurs “only when there is a governmental termination of freedom of movement through means intentionally applied.” In agreeing with the analysis employed by the court in Marbet, and consistent with the Brower definition of a seizure, the court in Coles found that defendants had allegedly terminated plaintiffs’ freedom of movement through means intentionally applied. See No. C03-2962 TEH at 10-11. It was not fatal to the sufficiency of the Fourth Amendment claims that plaintiffs were not rendered completely immobile or forced to remain in one location; what was required was that a person’s freedom of movement had been terminated, not that the person’s movement itself had been terminated. See id. at 8.

Marbet and Coles present factual scenarios virtually indistinguishable from the allegations asserted by Plaintiffs here. The TAC alleges that Defendants employed a tactic of “herding” in which they created a large “encirclement perimeter” and used hundreds of heavily-armed, riot gear-clad officers in SWAT units and FTAA-specific “field forces” in a skirmish line to force demonstrators in a desired direction through use of intensely excessive force. (See TAC P 40). During the course of Defendants’ activities, Hartman was allegedly engaged in a prayer vigil on the lawn on the east side of Biscayne Boulevard and was shot without reason on multiple occasions by law enforcement officers. (See id. P 6). Rauen was allegedly standing peacefully on the grass near the Bayfront Amphitheater when she was shot without reason by officers. (See id. P7).

The encirclement perimeter consisted of the following: on the southern boundary, the skirmish line formed from Biscayne Bay on the east to the buildings on Biscayne Boulevard on the west side, with a huge FTAA-specific security fence surrounding the Intercontinental Hotel to the rear of the skirmish line. (See id. P 41). The eastern boundary was Biscayne Bay near the Intercontinental Hotel, a little north of that the Bayfront Amphitheater was the eastern boundary, and north of the Amphitheater, several armored personnel carriers and the Hialeah Police Department field force blocked off access to Bayside and the port area to the east. (See id.). The western boundary of this encirclement perimeter was a line of riot police and bicycle response platoons blocking movement. (See id.). Finally, the northern boundary consisted of the Miami-Dade County Police Department blocking movement. (See id.).

In the process of herding the demonstrators, the officers used batons to beat them and sprayed pepper spray up and down the lines, while using bean bags, pepper spray balls, OC spray rounds, and tear gas. (See id. P 43). Hartman, who was praying while seated in the lotus position on the grass, was shot in the head, back and legs on multiple occasions. (See id.). Hartman submitted to the show of authority after being shot by moving northbound in an effort to retreat from the oncoming skirmish line. (See id.). An officer shot Rauen in the chest at close range with a projectile. (See id.). She, too, submitted to Defendants’ show of authority by moving eastbound, closer to the Amphitheater, as police began shooting demonstrators and discharging chemical weapons. (See id.).

It can hardly be disputed that the TAC sufficiently alleges that Plaintiffs’ freedom of movement was terminated by the deliberate use of force and skirmish lines to herd and then encircle Plaintiffs in an area in which they otherwise would not have been. Construing the allegations in the light most favorable to Plaintiffs, the undersigned finds that Plaintiffs have sufficiently alleged an unreasonable seizure within the meaning of the Fourth Amendment.

Defendant officers were entitled to qualified immunity from suit for detaining plaintiff under California Welfare & Institutions Code § 5150 where a 911 call from an interested third party alleged that plaintiff was a danger to herself. Officers picked her up and delivered her for a mental examination. Section 5150 has been on the books for 40 years, requires probable cause, and is presumptively constitutional, and plaintiff’s claim it was unconstitutional was undeveloped and got nowhere. Duarte v. Begrin, 2007 U.S. Dist. LEXIS 14872 (N.D. Cal. March 1, 2007):

Additionally, plaintiff faults the officers for not making an independent evaluation of plaintiff’s mental state once they arrived at her apartment. Specifically, plaintiff claims that she was calm in her home, that she denied being suicidal, and that the officers did not personally observe anything that would give rise to probable cause. Again, plaintiff mischaracterizes the applicable legal requirements. The officers acted reasonably in relying on Petrillo’s emergency call. Section 5150 does not mandate that police officers second-guess the evaluation of a trained healthcare provider by verifying the provider’s claims with their own independent assessment. See Peng v. Mei Chin Penghu, 335 F.3d 970,977-78 (9th Cir. 2003) (“[T]he business of policemen and firemen is to act, not to speculate or meditate on whether the report [of recent crime] is correct.”) (internal quotations omitted).

In conclusion, the officers acted fully within the bounds of the law prescribed by Section 5150, and are entitled to qualified immunity for their detention of plaintiff.

B. Search

Plaintiff claims that the warrantless search of her purse and residence violated her constitutional rights. Having arrived at plaintiff’s apartment on a showing of probable cause that plaintiff was suicidal, the officers performed a brief and limited search for weapons in order to protect plaintiff. This search was justified by the perceived exigency of the situation and was therefore reasonable as a matter of law. See United States v. Black, 466 F.3d 1143, 1145 (9th Cir. 2006) (where a warrantless “welfare search” was directed at rescue, rather than a search for evidence of a crime, the court would not “second-guess the officers [sic] objectively reasonable decision” in performing the search).

C. Excessive Force

In determining whether the application of force in effecting a seizure is excessive, “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). In making this determination, “the ‘calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments–in circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that is necessary in a particular situation.'” Robinson v. Solano County, 278 F.3d 1007, 1009 (9th Cir. 2002) (quoting Graham, 490 U.S. at 396-97). With respect to qualified immunity in the excessive force context, “the standard of reasonableness for purposes of qualified immunity is distinct from the standard of reasonableness embodied in the Fourth Amendment.” Robinson, 278 F.3d at 1012 (9th Cir. 2002) (citing Saucier, 533 U.S. at 206). As with other qualified immunity cases, qualified immunity is vitiated only if the violated constitutional right was clearly established at the time of the violation.

Plaintiff’s sole allegation of excessive force is that the officers “grabbed [her] by the arms and took [her] out of the apartment.” Duarte Dec. P 16. Plaintiff’s declaration indicates that this application of force was in response to some degree of resistance by plaintiff–plaintiff demanded, in Spanish, that the officers show her a warrant, asked them to leave, told them that she could drive herself to see the doctor and told them that she did not want to go with them. Id. P 14. In light of the officers’ reasonable belief in the urgent need to get plaintiff to a medical facility where she could be evaluated, taking her by the arms into a police car in response to her resistance was not so unreasonable as to defeat qualified immunity, or amount to a constitutional violation.

Two reasons:

1. Lexis the last few days has been sending the cases after 8 a.m. CT, not the usual 4:45 a.m. Whether this is now a regular time, I do not know.

2. I am in court everyday for the next several weeks, so postings occur when I can get to them.

Federal abstention barred federal jurisdiction under the Younger doctine for a suit concerning the validity of search warrants and investigative subpoenas duces tecum. Fieger v. Cox, 2006 U.S. Dist. LEXIS 88845 (E.D. Mich. December 8, 2006).*

Qualified immunity cannot be granted officers who strip searched protestors arrested at the International Monetary Fund session in D.C. Too many fact questions remain as to whether they were justified at all and who knew what. Bame v. Clark, 466 F. Supp. 2d 105 (D. D.C. December 11, 2006).*

Exigent circumstances justified police chase and entry into an apartment because of an obvious risk of destruction of evidence. The person fleeing was yelling to the occupants of the apartment that the police were there. Verelli v. City of Garfield, 2006 U.S. Dist. LEXIS 91265 (D. N.J. December 6, 2006):

Second, the officers reasonably concluded that the drugs would be destroyed or removed if they waited to obtain a search warrant. The officers knew that Verelli lived in the apartment. When it became apparent that he was about to be arrested, Shanks ran into the GHA complex, towards Verelli’s apartment, screaming Verelli’s name “at the top of his lungs.” The only reason Shanks did not actually reach Verelli’s apartment is because Detective Martino was able to apprehend him first. The officers had reason to believe that Verelli knew of Shanks’s drug distribution activities, giving further legitimacy to their fear that she might remove or destroy narcotics that might be in the apartment. n5 Though it does not appear that the officers knew whether Verelli heard Shanks’s screams, the agents in Rubin also did not know whether someone at the gas station had in fact alerted the defendant’s brother to destroy the hashish at the place of the search. Nonetheless, the Third Circuit found that the agents had a reasonable belief, based on the defendant’s actions, that this could be so. See Rubin, 474 F.2d at 269. Following Rubin, the Court finds here that the officers could reasonably have believed that Shanks’s actions were designed to signal Verelli to destroy or remove drugs from the apartment. A knock on Verelli’s door by the officers revealed that Verelli was in fact home. Accordingly, exigent circumstances justifying a warrantless search existed.

Defendant was believed to be a pedophile who traveled to the Phillipines nine times in five years for sex with minors. At Customs, he was found in possession of a journal describing sex with minors, and he had photographs in his possession of nude adults. The way he answered the questions, he took pictures but only brought back pictures of adults. Officers believed, however, that it might be likely that digital pictures of minors had been shipped via the internet to himself. The magistrate could fairly conclude on the totality that child porn would be found on the defendant’s home computer, and that justified issuance of the search warrant. United States v. Kaechele, 466 F. Supp. 2d 868 (E.D. Mich. November 29, 2006):

Turning to this substantive inquiry, the Court finds that Magistrate Judge McCoun had a substantial basis for concluding that a search of Defendant’s residence would uncover evidence of a violation of the federal child pornography statute, 18 U.S.C. § 2252A. This statute, as pertinent here, prohibits the shipment in interstate or foreign commerce, receipt, distribution, or reproduction of child pornography. As noted by the Government, the following facts of relevance to the magistrate’s probable cause inquiry were set forth in Special Agent Rankin’s affidavit: (i) that journals had been found among Defendant’s possessions upon his return from overseas travel, in which he graphically detailed sexual encounters with numerous females, including young girls between the ages of 8 and 15; (ii) that Defendant also was found in possession of several photographs (some nude) of his sexual partners, with log numbers corresponding to entries in his journals; (iii) that, upon being interviewed by customs agents, Defendant admitted “that he takes numerous photographs of females while abroad, but indicated that he does not bring back photos of young girls with him for fear of getting in trouble with U.S. Customs,” (Defendant’s Motion, Ex. B, Search Warrant Aff. at P 6); and (iv) that Defendant further acknowledged that he had a computer at his residence, that he had used this computer to book his latest overseas travel, and that he had an Internet service provider that he had used to view nude images online and to establish an e-mail account. Thus, as stated by the Government, “the magistrate had before him information detailing a computer-savvy, photograph-taking individual, who in writing, detailed his sexual exploits with children.” (Government’s Response Br. at 11.)

Although, as Defendant points out, there is no indication that the photographs in his possession were digital, such that they (or others like them, depicting underage girls) could readily be transmitted to his home computer, this is offset by Special Agent Rankin’s description in his affidavit, based on his training and experience, of behaviors and activities common to child pornographers. In particular, Special Agent Rankin explained that “[c]omputers and computer technology have revolutionized the way in which” such activities are carried out, with child pornographers now able to “transfer photographs from a camera onto a computer-readable format with a device known as a scanner,” making computers “an ideal repository for child pornography.” (Defendant’s Motion, Ex. B, Search Warrant Aff. at PP 13-16.) Special Agent Rankin further stated that “[b]ased on my knowledge and experience, persons involved in foreign travel for sex with minors document and maintain evidence of these encounters in the form of photographs, video recordings, diaries, etc. as prized possessions or trophies,” and he noted that Defendant “possessed notebooks explicitly detailing sex acts with young minor children with log numbers such as those used for digital photos kept on computers as files, indicating the picture files may be maintained on a computer hard drive or software or otherwise available via computer.” (Id. at P 9.) Finally, the agent characterized as “deceptive” Defendant’s statement to customs agents that “he does not bring back photos of young girls with him for fear of getting in trouble with U.S. Customs,” noting that Defendant “would not indicate if pictures of minors were sent to the United States by other means,” and that “[i]t has been a technique of previous violators to send prohibited pictures of minors from foreign countries via electronic means to the United States rather than have them in their possession while clearing U.S. Customs.” (Id. at P 6.) Under these circumstances, the magistrate had a substantial basis for finding probable cause to search Defendant’s residence for evidence of child pornography offenses.

Officers were not justified in entering defendants’ backyard and then house for shooting off fireworks. When officers arrived, nothing was happening, but people were standing around and one ducked behind a tree. Still, there was no emergency justification for entering into either. Commonwealth v. Kirschner, 67 Mass. App. Ct. 836, 859 N.E.2d 433 (December 20, 2006).

Statute of limitations for unlawful search claim ran from the date the New York appellate courts reversed his conviction based on the search. After the charge was dismissed on remand, the statute of limitations began to run. The search was in 1994 and reversal came in 2001, and suit was filed a few months later. Perez v. City of New York, 2006 U.S. Dist. LEXIS 94211 (E.D. N.Y. December 29, 2006).

Removal: A Fourth Amendment claim brought in state court is removable to federal court because federal courts have jurisdiction over Fourth Amendment claims under 28 U.S.C. § 1331. Donaldson v. City of Walterboro Police Dep’t., 466 F. Supp. 2d 677 (D. S.C. November 28, 2006).

Defendant who lived with a woman with whom he had a rocky relationship still had standing to challenge seizure of things from her property because he still retained an expectation of privacy in the premises. United States v. Brown, 2006 U.S. Dist. LEXIS 94224 (N.D. Ga. September 12, 2006):

Although a close question, the court finds that Defendant had a reasonable expectation of privacy in Ms. Moore’s residence on October 7, 2005, which he had not abandoned at the time of the search. While it is evident that Defendant was not a fulltime resident at Ms. Moore’s home, the court finds that she and Defendant had a long-term relationship which included having had a child together who also resided in the home. (Tr. at 15-16, 46, 110-11, 113-14, 112-23). And, while it appears that Ms. Moore’s and Defendant’s relationship was undergoing difficult times, as it had apparently in the past, the relationship obviously was not over as evidenced by the fact Ms. Moore had just leased a vehicle for Defendant’s use. (Tr. at 16-17, 110). Defendant also had clothing and other items in the residence, which Ms. Moore, and not he, had begun to pack. (Tr. at 16, 21, 110-11, 122). Even assuming that Defendant’s visits to the residence were more sparse than claimed by Ms. Moore and that he had not, contrary to her claims, spent the night before at the residence, Defendant had a sufficient relationship to the home and its occupants to assert a reasonable expectation of privacy therein.

Nor does the court find that Defendant had, at the time of the search, abandoned his expectation of privacy in the residence. In arguing that Defendant abandoned his property left in Ms. Moore’s residence, the Government points to the facts that his relationship with Ms. Moore was breaking up, that she was packing up his belongings, that there was only a possibility that she would allow him to return, and that he was located months later with his girlfriend in North Carolina. [Doc. 27 at 12]. None of these factors demonstrate that on October 7, 2005, Defendant had abandoned his property or severed his relationship to the residence. In fact, Ms. Moore testified that if Defendant sought to return, there was a “big possibility” that she would allow him to do so. (Tr. at 111). Defendant’s association with the residence followed the pattern, as Ms. Moore explained, of being there and then not being there. (Tr. at 16, 122). Although Ms. Moore was equivocal about her relationship with Defendant, she denied that he had moved out of the residence as of October 7, 2005. (Tr. at 110-11, 122-23).

As to the car defendant recently leased for his paramour, the defendant lacked standing in that vehicle. As to consent, the heat of the moment of the arrest had dissipated by the time consent was granted, so did the show of force and authority. Consent was valid. Id.

Defendant arrived at premises when a search warrant was being executed, and he asked to be able to retrieve his son. The officers ran his name and found a warrant for his arrest. The officers conducted a search incident, and they found a hard object which they thought was conceivably a weapon. It was a meth pipe. The search was valid. State v. Cooney, 2006 MT 318, 335 Mont. 55, 149 P.3d 554 (December 5, 2006).

Search warrant based on 45 day old information of a drug buy was stale, and search was suppressed. State v. Jendrusik, 2006 Ohio 7062, 2006 Ohio App. LEXIS 6983 (7th Dist. December 29, 2006).

Hudson excused state’s failure to properly knock and announce, so exclusionary rule did not apply. State v. Marcum, 2006 Ohio 7068, 2006 Ohio App. LEXIS 6995 (7th Dist. December 28, 2006).

Another remarkable holding yesterday: New York’s Third Appellate Department held in People v. Ming, 35 A.D.3d 962, 825 N.Y.S.2d 825 (3d Dept. December 14, 2006), that a search warrant directed to all occupants of a car associated with drugs permitted a strip search of all persons found with the car. An overbreadth challenge was rejected:

Next, defendant contends that the cocaine found upon his person in the course of the strip search should have been suppressed because the search exceeded the scope of the search warrant and, therefore, violated his constitutional rights against unreasonable searches and seizures. Specifically, he claims that the warrant was overly broad because it allowed a search of anyone present in the described vehicle without specifically identifying or naming him as one of the suspected drug dealers. We are unpersuaded. Notably, search warrants that direct a search of a particular place or vehicle, “may also direct a search of any person present thereat or therein” (CPL 690.15 [2]; see People v Vanderpool, 217 A.D.2d 716, 718, 629 N.Y.S.2d 307 [1995], lv denied 86 N.Y.2d 847, 658 N.E.2d 235, 634 N.Y.S.2d 457 [1995]), as long as the search warrant application establishes probable cause for the search (see People v Nieves, 36 N.Y.2d 396, 401, 330 N.E.2d 26, 369 N.Y.S.2d 50 [1975]).

Here, the application for the search warrant clearly established probable cause inasmuch as it demonstrated that, among other things, the specific 1994 red Lincoln vehicle was being used in the possession or sale of cocaine and, therefore, it was permissible for the issuing judge to “infer that anyone present was involved in the ongoing illegal activity” (People v Neish, 232 A.D.2d 744, 746, 649 N.Y.S.2d 48 [1996], lv denied 89 N.Y.2d 927, 677 N.E.2d 301, 654 N.Y.S.2d 729 [1996]; see People v Williams, 284 A.D.2d 564, 565, 726 N.Y.S.2d 740 [2001], lv denied 96 N.Y.2d 909, 756 N.E.2d 95, 730 N.Y.S.2d 807 [2001]). Accordingly, we find no basis to conclude that the suppression motion was improperly denied.

Defendant was a suspect in a murder in Maryland, and a search warrant was obtained in West Virginia. Maryland officers and a crime scene unit came to the scene to assist in the execution of the warrant because they were familiar with the facts of the case. There was no prohibition under West Virginia law for Maryland officers to “assist” (or actually do it) as long as West Virginia officers were there. Also, defendant had no right to see the search warrant for another person and his premises to see if there was anything in there that was exculpatory to the defense. The trial judge did look in camera and found nothing which aided the defense. It was clear that the defendant had no standing in the search of the other person. Daniels v. State, 172 Md. App. 75, 913 A.2d 617 (December 26, 2006).

Summary judgment denied officers because of a factual dispute on the questions of probable cause and exigent circumstances. Hopkins v. Bonvicino, 2006 U.S. Dist. LEXIS 93131 (N.D. Cal. December 21, 2006).

Stop was justified because the defendant matched the general description of a man wanted in an assault with a firearm. This included a frisk of his vehicle that produced a gun. United States v. Yarbrough, 2005 U.S. Dist. LEXIS 44167 (N.D. N.Y. January 4, 2005).*

New Jersey holds in two cases that the state DNA act can be applied to crimes occurring before its effective date and it applies to juveniles, even under 14, who have committed acts which would be a felony if committed by an adult. A.A. v. Attorney General of New Jersey, 189 N.J. 128, 940 A.2d 260 (N.J. January 24, 2007), aff’g 384 N.J. Super. 67, 894 A.2d 31 (2006); State v. O’Hagen, 189 N.J. 140, 914 A.2d 267 (N.J. January 24, 2007).

Defendant was arrested in his house, but the search incident did not occur for twenty minutes after the officer called to talk to others. There is no time limit on when a search incident can occur, and there was no intervening act of consequence, so the search incident was valid. United States v. Wong, 2007 U.S. Dist. LEXIS 4468 (N.D. Cal. January 9, 2007):

Based upon the record before the Court, the Court finds that the search of defendant’s bedroom was “roughly contemporaneous” with his arrest. Cagney’s phone call to Martinovich was not an intervening act, but rather was “part of a continuous, uninterrupted course of events” of conducting the search. McLaughlin, 170 F.3d at 893. Cagney called Martinovich to inform him that he had found marijuana and a shotgun in defendant’s bedroom, and Martinovich told Cagney that he had found an operating marijuana grow to which defendant was believed to be connected. The call took place during the course of the search, and was topically related to the search. Accordingly, the Court finds that the call to Martinovich did not invalidate the search incident to arrest.

Although it is a closer call, the Court concludes that based upon the evidence submitted, the alleged questioning of defendant also did not constitute an intervening act. Defendant states that officers questioned him for 15 to 20 minutes after he was arrested. Significantly, however, defendant does not state that officers questioned him before conducting the search of his bedroom; defendant’s reply declaration is silent on when the alleged questioning took place. Defendant’s reply declaration also does not provide any specific information regarding what allegedly transpired during the questioning. Because there is no evidence before the Court that defendant was questioned prior to the commencement of the search, the Court finds that there was no intervening act to invalidate the search of defendant’s bedroom as a search incident to arrest.

Scott v. Harris, No. 05-1631.

Questions presented:

1. Whether a law enforcement officer’s conduct is “objectively reasonable” under the Fourth Amendment when the officer makes a split-second decision to terminate a high-speed pursuit by bumping the fleeing suspect’s vehicle with his push bumper, because the suspect had demonstrated that he would continue to drive in a reckless and dangerous manner that put the lives of innocent persons at serious risk of death.

2. Whether, at the time of the incident, the law was “clearly established” when neither this Court nor any circuit court, including the Eleventh Circuit, had ruled the Fourth Amendment is violated when a law enforcement officer uses deadly force to protect the lives of innocent persons from the risk of dangerous and reckless
vehicular flight.

Decision below: Harris v. Coweta County, Ga., 433 F.3d 807 (11th Cir. 2005).

The brief for Petitioner Scott is here, and the brief for Respondent Harris is here.

Summary from the Willamette University College of Law:

The issue in this case is whether a police officer reasonably used deadly force under the Fourth Amendment to stop a traffic offender driving and fleeing at excessive speeds, and whether that conduct entitled the officer to qualified immunity against a lawsuit brought under 42 U.S.C. § 1983.

On March 29, 2001, petitioner Victor Harris was traveling approximately 73 miles per hour in a 55 mile-per-hour zone. A Coweta County Deputy clocked Harris’ speed and initiated pursuit, but Harris continued, increasing his speed and driving in a reckless and dangerous fashion. Eventually, Coweta County Deputy Timothy Scott took over the pursuit, and requested permission to make use of a “precision intervention technique” (PIT), a
maneuver in which the pursuer stops a fleeing vehicle by striking it in a specific manner, throwing the car into a spin and bringing it to a stop. Despite having received no training in the technique, Scott received approval, but later determined Harris’ speed precluded use of the PIT. Scott instead rammed his cruiser directly into Harris’ vehicle, ultimately rendering Harris quadriplegic. Harris filed suit against Scott in the United States District Court for the Northern District of Georgia under § 1983, claiming a seizure by excessive force in violation of his Fourth Amendment rights.

Scott moved for summary judgment on grounds of qualified immunity, which the District Court denied. The United States Court of Appeals for the Eleventh Circuit affirmed the denial, stating that under Tennessee v. Garner, 471 U.S. 1 (1985), Scott’s deadly force was clearly excessive because a traffic pursuit is not a crime involving a threat of serious physical harm and therefore Scott was not entitled to summary judgment on qualified immunity grounds. Scott will argue to the United States Supreme Court that reasonableness is the appropriate Fourth Amendment standard and that in using this standard he is entitled to qualified immunity because he reasonably believed his actions would avoid a greater risk of serious injury or death. He further argues that even if his actions were not reasonable, he is still entitled to qualified immunity because a reasonable officer in the same position would have believed his conduct lawful given the information possessed and clearly established law regarding excessive force and vehicle contacts. [Summarized by Ian Jeffrey
Slavin.]

Entry into plaintiff’s alleged crack house by city building inspectors was not an unconstitutional entry as an administrative search. Anderson v. Morrow, 2007 U.S. Dist. LEXIS 13028 (W.D. Pa. February 26, 2007):

It is undisputed that the warrantless search of Plaintiff’s alleged home did in fact take place. While municipal searches of residential structures for code violations typically requires that a search warrant be obtained, Camara, 387 U.S. at 533, defendants “may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164 (1974). Furthermore, the Supreme Court has noted that, “as a practical matter and in light of the Fourth Amendment’s requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused unless there has been a citizen complaint or there is other satisfactory reason for securing immediate entry.” Camara, 387 U.S. at 539-40 (1967) (emphasis added). Here, entry to 7428 Monticello Street was never refused (in fact, the record evidence shows that the door was open), and there were numerous “satisfactory reason[s] for securing immediate entry” – namely the numerous housing code violations and complaints from neighbors that the residence was operating as a “crack house.” Under these circumstances, there were exigencies which excused the entry without a warrant.

As the decision not to obtain a warrant for the search at issue was based upon a “special government need beyond that of normal law enforcement,” e.g., the need to protect public safety, it was appropriate for the inspectors to proceed to inspect the premises without obtaining a warrant, and this decision comported with the requirement of reasonableness mandated by the Fourth Amendment. Neumeyer, 421 F.3d at 214.

To reiterate, the authority pursuant to which employees of BBI conducted the warrantless search of 7428 Monticello Street is found in Section 104.6 of the BOCA Building Code, which permits inspections when necessary to enforce other provisions of the Code, or where there is reasonable cause to believe that a code violation or safety risk exists. The BBI had reasonable cause to believe that an unsafe and dangerous condition existed in violation of the code that made 7428 Monticello Street unsafe, dangerous or hazardous (see Sworn Affidavit of Kathleen Kraus, Exhibit D, Doc. No. 41 at 9); and as the residence was unoccupied, the Defendants made reasonable efforts to locate the owner of the property (id. at 11-12).

Here, entry to 7428 Monticello Street was never refused (in fact, the door was open), and there were numerous “satisfactory reason[s] for securing immediate entry” – namely the litany of housing code violations and complaints from neighbors that the residence was operating as a “crack house.” See Sworn Affidavit of Paul Loy, Exhibit B, Doc. No. 41-6 at 1-2. Under these circumstances, there were exigencies which excused the entry without a warrant.

Informants provided credible information that defendant was selling drugs from his home. Also, “[t]here is no question that there was a substantial basis for the state judge to conclude that probable cause existed for the search of defendant’s laptop” for child porn. United States v. Kain, 2007 U.S. Dist. LEXIS 12735 (E.D. Mo. February 23, 2007).*

Plaintiff held for four days on a mistakenly issued arrest warrant had no cause of action. At worst, the people causing the mistake were negligent, and that is an insufficient basis to state a constitutional claim. Aing v. City of Philadelphia, 2007 U.S. Dist. LEXIS 12910 (E.D. Pa. February 23, 2007).*

Plaintiff who prevailed in his habeas case that defense counsel was ineffective for not challenging his search who was discharged and not retried loses his civil rights case against the arresting and searching officers on qualified immunity grounds. Howie v. Hawk, 2007 U.S. Dist. LEXIS 12845 (W.D. N.C. February 22, 2007):

With regard to defendants Pierce and McAllister, as has been noted, the plaintiff clearly is entitled to be free of unlawful searches and seizures. However, because the undersigned finds that the Officers reasonably believed–albeit erroneously–that they were entitled to search the plaintiff’s room, they are entitled to qualified immunity from this action for damages.

To be sure, the doctrine of qualified immunity should be applied where, like here, a reasonable person in the Officers’ position would have known that his or her actions violated the plaintiff’s constitutional rights. Smith v. Reddy, 101 F.3d 351, 355 (4th Cir. 1995). Here, it stands to reason that if numerous State courts reviewed the conduct of the Officers and did not find it to be unconstitutional, the Officers clearly could have reasonably believed that their conduct was lawful. Consequently, the plaintiff also cannot prevail on either his Fourth or Eighth Amendment claims against the defendant Officers.

The defendant’s employer found child porn on his workstation computer. While the defendant had standing, the employer was directed by the police to copy the hard drive, and they could do so because they owned the computer. United States v. Ziegler, 474 F.3d 1184 (9th Cir. January 30, 2007). As to standing:

The threshold question then is whether Ziegler had a legitimate expectation of privacy in the area searched or the object seized. If he had no such expectation, we need not consider whether the search was reasonable.

1

The government does not contest Ziegler’s claim that he had a subjective expectation of privacy in his office and the computer. The use of a password on his computer and the lock on his private office door are sufficient evidence of such expectation. See United States v. Bailey, 272 F. Supp. 2d 822, 835 (D. Neb. 2003) (citation omitted).

2

But Ziegler’s expectation of privacy in his office and workplace computer must also have been objectively reasonable. The seminal case addressing the reasonable expectations of private employees in the workplace is Mancusi v. DeForte, 392 U.S. 364, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968). In Mancusi, the Supreme Court addressed whether a union employee had a legitimate expectation of privacy, and therefore Fourth Amendment standing, in the contents of records that he stored in an office that he shared with several other union officials. The Court held that DeForte had standing to object to the search and that the search was unreasonable, noting that it was clear that “if DeForte had occupied a ‘private’ office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing.” Id. at 369. That was so because he could expect that he would not be disturbed except by business or personal invitees and that the records would not be taken except with the permission of his supervisors. Id. The Court thought the fact that the office was shared with a few other individuals to be of no constitutional distinction.

Mancusi compels us to recognize that in the private employer context, employees retain at least some expectation of privacy in their offices. Id. See also Ortega v. O’Connor, 480 U.S. 709, 716, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987) (noting that in Mancusi “this Court … recognized that employees may have a reasonable expectation of privacy against intrusions by police.”); id. at 730 (Scalia, J., concurring) (“In Mancusi v. DeForte, we held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with two other employees, even though we acknowledged that those other employees, their personal or business guests, and (implicitly) ‘union higher-ups’ could enter the office.”) (internal citations omitted).

Furthermore, Ziegler’s expectation of privacy in his office was reasonable on the facts of this case. His office was not shared by co-workers, and kept locked. See Schowengerdt v. United States, 944 F.2d 483, 487 (9th Cir. 1991) (“Schowengerdt would enjoy a reasonable expectation of privacy in areas given over to his exclusive use, unless he was on notice from his [government] employer that searches of the type to which he was subjected might occur from time to time for work-related purposes.”); United States v. Taketa, 923 F.2d 665, 672-73 (9th Cir. 1991). And while there was a master key, the existence of such will not necessarily defeat a reasonable expectation of privacy in an office given over for personal use. See Taketa, 923 F.2d at 673 (noting that allowing the existence of a master key to overcome the expectation of privacy would defeat the legitimate privacy interest of any hotel, office, or apartment occupant).

Because Ziegler had a reasonable expectation of privacy in his office, any search of that space and the items located therein must comply with the Fourth Amendment. n9

n9 Had the company computer assigned to Ziegler for his business-use only been physically located outside a private office, we might have had to consider whether Ziegler had reasonable expectation of privacy in the device itself, in the face of a corporate policy of monitoring the corporate computers. See Muick v. Glenayre Elecs., 280 F.3d 741, 743 (7th Cir. 2002). However, we leave that question for another day.

As to the consent to search:

IV

A

The remaining question is whether the search of Ziegler’s office and the copying of his hard drive were “unreasonable” within the meaning of the Fourth Amendment. As in Mancusi, the government does not deny that the search and seizure were without a warrant, and HN5″it is settled for purposes of the Amendment that ‘except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.'” Mancusi, 392 U.S. at 370 (quoting Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967)).

One well-settled exception is where valid consent is obtained by the government. Davis v. United States, 328 U.S. 582, 593-594, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). In proving voluntary consent, the government “is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); see also United States v. Davis, 332 F.3d 1163, 1168-69 (9th Cir. 2003). Common authority to authorize a search rests upon the premise that one “[has] assumed the risk that one of [his] number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n. 7.

B

We first consider whether Frontline exercised common authority over the office and the workplace computer such that it could validly consent to a search. Mancusi is again instructive. In Mancusi, the Supreme Court recognized that in his office, DeForte retained an expectation “that records would not be taken [by the police] except with his permission or that of his union superiors.” 392 U.S. at 369. The Court continued: “It is, of course, irrelevant that the Union or some of its officials might validly have consented to a search of the area where the records were kept, regardless of DeForte’s wishes, for it is not claimed that any such consent was given, either expressly or by implication.” Id. at 369-70; see also United States v. Carter, 569 F.2d 801, 804 (4th Cir. 1978), cert. denied 435 U.S. 973, 98 S. Ct. 1618, 56 L. Ed. 2d 66 (1978). Mancusi thus establishes that even where a private employee retains an expectation that his private office will not be the subject of an unreasonable government search, such interest may be subject to the possibility of an employer’s consent to a search of the premises which it owns.

We are also convinced that Frontline could give valid consent to a search of the contents of the hard drive of Ziegler’s workplace computer because the computer is the type of workplace property that remains within the control of the employer “even if the employee has placed personal items in [it].” Ortega, 480 U.S. at 716. In Ortega, the Supreme Court offered an analogy that is helpful to our resolution of this question. Ortega, 480 U.S. at 716. The Court posited a situation where an employee brings a piece of personal luggage to work and places it within his office. The Court noted that “[w]hile . . . the outward appearance of the luggage is affected by its presence in the workplace, the employee’s expectation of privacy in the contents of the luggage is not affected in the same way.” Id. (emphasis in original). The Court further explained that “[t]he appropriate standard for a workplace search does not necessarily [*19] apply to a piece of closed personal luggage, a handbag or a briefcase that happens to be within the employer’s business address.” Id.

The workplace computer, however, is quite different from the piece of personal luggage which the Court described in Ortega. Although use of each Frontline computer was subject to an individual log-in, Schneider and other IT-department employees “had complete administrative access to anybody’s machine.” The company had also installed a firewall, which, according to Schneider, is “a program that monitors Internet traffic … from within the organization to make sure nobody is visiting any sites that might be unprofessional.” Monitoring was routine, and the IT department reviewed the log created by the firewall “[o]n a regular basis,” sometimes daily if Internet traffic was high enough to warrant it. Finally, upon their hiring, Frontline employees were apprised of the company’s monitoring efforts through training and an employment manual, and they were told that the computers were company-owned and not to be used for activities of a personal nature.

In this context, Ziegler could not reasonably have expected that the computer was his personal property, free from any type of control by his employer. The contents of his hard drive, like the files in Mancusi, 392 U.S. at 369, were work-related items that contained business information and which were provided to, or created by, the employee in the context of the business relationship. Ziegler’s downloading of personal items to the computer did not destroy the employer’s common authority. Ortega, 480 U.S. at 716. Thus, Frontline, as the employer, could consent to a search of the office and the computer that it provided to Ziegler for his work.

Thus, the employer could and did consent to the search.

Overbroad business records warrant challenge failed because the government showed a prima facie case for the “permeated with fraud” doctrine that permits wholesale seizures of records. United States v. Bernardini, 2005 U.S. Dist. LEXIS 44409 (W.D. Va. October 18, 2005).*