A defendant charged with harboring a fugitive under 18 U.S.C. § 1071 could not be convicted solely on testimony that she falsely denied the fugitive was there and then insisted upon her Fourth Amendment rights when the police were trying to get in to arrest the fugitive. United States v. Harris, 2006 U.S. Dist. LEXIS 59406 (D. Ariz. August 21, 2006):

Some might contend that the presence of Briones-Lopez in the apartment for approximately two hours while Ms. Harris refused entry and demanded a warrant constitutes the kind of “physical assistance” sufficient for conviction, but the Court has difficulty distinguishing his presence in the apartment during this period from Ms. Harris’ exercise of her Fourth Amendment rights. Assuming, hypothetically, that Ms. Harris had done nothing more than demand a warrant, and that it had taken officers two hours to obtain a warrant and gain entry to her apartment, the Court could not hold that Ms. Harris violated § 1071 by the presence of Briones-Lopez in her apartment for the two hours. The Ninth Circuit has held that “passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing. If the government could use such a refusal against the citizen, an unfair and impermissible burden would be placed upon the assertion of a constitutional right and future consents would not be freely and voluntarily given.” Prescott, 581 F.2d at 1351 (quotation omitted). In this case, the only conduct engaged in by Defendants in addition to Ms. Harris’ assertion of her Fourth Amendment rights are the false statements made by Defendants to the officers. The Government has conceded this fact and has identified no other evidence that Defendants provided Briones-Lopez with physical assistance in avoiding detection by officers.

Defendant was talkative when being given a warning ticket and the officer surmised that he was nervous. Consent was asked for without reasonable suspicion and without having told the defendant he was free to leave. Motion to suppress should have been granted. Reversed and conviction dismissed. United States v. Jenson, 462 F.3d 399 (5th Cir. August 23, 2006).*

Officers had reasonable suspicion to stop defendant under Adams v. Williams when he was arriving at a prearranged location for an alleged drug deal. Nexus for a search warrant of his house was established by defendant leaving his house to go to the drug deal. United States v. Spaulding, 2006 U.S. Dist. LEXIS 59504 (N.D. Ohio August 23, 2006).

There was PC from a commonsense reading of the affidavit to believe that defendant’s vehicle was involved in getting him to a store for a theft of pseudoephedrine for use in manufacturing meth. While he was arrested in the store for possession of pseudo, that did not mean that there was no probable cause shown. Rather, it was a reasonable inference that defendant was involved in an ongoing crime of acquiring materials for making meth and something would likely be found in the car. United States v. Cancilla, 2006 U.S. Dist. LEXIS 59534 (W.D. Pa. August 23, 2006).*

Informant’s tip that was not corroborated did not amount to PC for issuance of search warrant. The affidavit was so deficient that the GFE did not save it. That search of his house led to a search of his car which was also suppressed. United States v. Snipes, 444 F. Supp. 2d 1203 (M.D. Ala. August 11, 2006):

The affidavit completely fails to link the stolen items to Snipes’s residence. Moreover, it provides no information regarding the reliability, veracity, or basis of knowledge of the informant.

Indeed, this appears to be the prototypical “bare-boned” affidavit because its only two probable-cause facts are conclusory allegations (“someone” told us Snipes bought stolen property, and there is “unusual” activity at Snipes’s house) that do not even link the illegal activity to Snipes’s residence, which was the place the officers sought to search. In short, the affidavit is so obviously lacking in indicia of probable cause that official belief in the validity of the warrant was entirely unreasonable in this case.

The Fourth Amendment cannot be a source of law for a jail suicide case. Smith v. Brevard County, 2006 U.S. Dist. LEXIS 57210 (M.D. Fla. August 14, 2006).

Defendant argued that his arrest had not yet occurred, so he could not be subjected to a SI. The appellate court found, however, that the search was justified under both SI and automobile exception. United States v. Coleman, 458 F.3d 453 (6th Cir. August 10, 2006).*

Health care fraud warrant for “including but not limited to, financial, business, patient, insurance and other records related to the business of Dr. Pradeep Srivastava, to include Drs. Balnath Bhandary and Felipe Robinson, for the period January 1, 1998 to Present, which may constitute evidence of violations of Title 18, United States Code, Section 1347” and “[f]inancial records, including but not limited to accounting records, tax records, accounts receivable logs and ledgers, banking records, and other records reflecting income and expenditures of the business” did not authorize seizure of records to be used in a tax prosecution. United States v. Srivastava, 444 F. Supp. 2d 385 (D. Md. August 4, 2006), relying on United States v. Debbi, 244 F. Supp. 2d 235 (S.D.N.Y. 2003), which is nearly identical.

Defendant’s arrest was justified on at least constructive possession grounds, so a SI was proper. United States v. Reynolds, 2006 U.S. Dist. LEXIS 55010 (M.D. Ala. July 20, 2006).*

RS justified the detention and that ripened into PC with a dog sniff. United States v. Tyler, 2006 U.S. Dist. LEXIS 55115 (S.D. Ga. July 7, 2006).*

In a business records search case, computers and computer media may be searched. “In this computer age, a warrant to search business records logically and reasonably includes a search of computer data.” In the course of that search, officers came upon child porn which was admissible. United States v. Hudspeth, 459 F.3d 992 (8th Cir. August 25, 2006).

California civil parking infraction justified stop on reasonable suspicion. “Because parking infractions constitute traffic violations under California’s Vehicle Code and local laws enacted pursuant to the Vehicle Code, and because the officers had the authority to enforce the particular violation at issue, we hold that a civil parking violation under California’s Vehicle Code falls within the scope of the Supreme Court’s decision in Whren v. United States, 517 U.S. 806 (1996). Accordingly, we conclude that the parking violation provided the officers with reasonable suspicion to conduct an investigatory stop of the vehicle.” United States v. Choudhry, 461 F.3d 1097 (9th Cir. August 25, 2006).

Record supporting finding of consent despite a translation error in the consent form. “Number one. I have been consulted to permit the agents from the Department of Narcotics and Drugs to search.” Rest of form was clear on right to refuse, and defendant’s claim he did not read the entire form because he was nervous was rejected as being a lack of consent. United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. August 25, 2006).

Officers were executing an arrest warrant, and they were also looking for a child in a drug house. One person in the front room was in gang colors, but the defendant was not. After finding meth on the floor, the officer could reasonably believe that somebody might be armed, and a patdown of everybody in the room was reasonable. United States v. Garcia, 459 F.3d 1059 (10th Cir. August 25, 2006).*

Officer located place to be searched for child porn via checking IP number and found it was being used at defendant’s house. A search warrant was obtained and executed on the home. The 21 year old defendant lived with his parents, but he paid no rent. His mother took care of the property, but she respected his privacy and did not enter the room which was locked with the typical bedroom door lock without a key. One internet access line came into the house. A separate search warrant was not required for his bedroom. Also, 31 days was not stale in a child porn investigation. United States v. Flyer, 2006 U.S. Dist. LEXIS 67958 (D. Ariz. May 26, 2006).*

Defendant lived with his grandmother, and that was reason enough to enter the house under an arrest warrant for him under Payton. Baker v. Snyder, 2004 U.S. Dist. LEXIS 30056 (E.D. Tenn. May 11, 2004).*

Additional testimony would have helped, but the trial court’s findings are supported by the evidence that the defendant received a copy of the search warrant at the time the warrant was served. State v. Linder, 2006 Tenn. Crim. App. LEXIS 730 (September 22, 2006).*

In a significant e-mail privacy case, the Court of Appeals of the Armed Forces held in United States v. Long, 64 M.J. 57 (Ct. App. Armed Forces September 27, 2006), that a service member had a reasonable expectation of privacy in her e-mail in a government computer as to all but the system administrator. [Many footnotes are omitted, and a lot of the opinion is quoted.]

This case presents us with questions certified by the Judge Advocate General of the Navy regarding the reasonable expectation of privacy a military person has in e-mail messages sent and stored on a government computer system. Lance Corporal Long, in a cross-petition, questions the holding by the lower court that the search and seizure violation it found was harmless beyond a reasonable doubt. We conclude that based on the particular facts of this case, Appellee did have a subjective expectation of privacy in these e-mails, that her expectation of privacy was objectively reasonable, and that the error in admitting these e-mails was not harmless beyond a reasonable doubt.

…

THE SUBJECTIVE EXPECTATION OF PRIVACY

This Court previously considered military members’ subjective expectations of privacy in Maxwell and Monroe. In Maxwell, the accused used America Online’s (AOL) e-mail service to communicate with another junior Air Force officer about the accused’s sexual interests and to send and receive obscene material and child pornography. This Court concluded that Maxwell possessed a subjective expectation of privacy where it was AOL’s policy to offer “contractual privacy protection,” including nondisclosure of e-mail without a court order.

In Monroe, this Court concluded that, in contrast to Maxwell, the e-mail system in question was owned by the government. We noted that Monroe’s subjective expectation of privacy was not governed by contractual agreement, as in Maxwell, and we concluded that, based on the totality of the circumstances, Monroe had no expectation of privacy, at least from persons maintaining the electronic mail host system.

In making the case that she had an expectation of privacy, Appellee argues that access to her computer and therefore her e-mail account was protected by a password known only to her. Indeed, the network administrator testified that he did not know her password.

In response to the argument that Appellee’s password created an expectation of privacy, the Government points out that the passwords are required as a part of the government computer security concerns in order to limit unauthorized access to the government system. Accordingly, the Government concludes that passwords protect governmental interests, not individual privacy concerns.

The Government relies most heavily on the log-on banner to support its notion that Appellee could not have believed her e-mail communications were private. The Government argues that courts have looked at similar warnings and policies, and found them sufficient to establish that the employee had no expectation of privacy. Conversely, Appellee argues that the language of the banner is not sufficient to remove her expectation of privacy from unreasonable, warrantless searches conducted for law enforcement purposes.

In light of the particular facts of this case, we conclude that the lower court was not clearly erroneous in its determination that Appellee had a subjective expectation of privacy in the e-mails she sent from her office computer and in the e-mails that were stored on the government server.

We conclude that the testimony of the network administrator is the most compelling evidence supporting the notion that Appellee had a subjective expectation of privacy. …

. . .

THE REASONABLENESS OF THE PRIVACY EXPECTATION

In O’Connor, the Supreme Court recognized that there may be an expectation of privacy in a government workplace but that there is no talisman for determining the reasonableness of such an expectation in cases involving public employees. Instead, the reasonableness of a privacy expectation will differ according to the context, and the “operational realities of the workplace.” M.R.E. 314 discusses searches not requiring probable cause, and subsection (d) of M.R.E. 314 deals specifically with searches of government property. M.R.E. 314(d), which is consistent with the holding in O’Connor, indicates that searches of government property may be made without probable cause unless an individual has a reasonable expectation of privacy in that property and that the determination of the reasonableness of an expectation of privacy “depends on the facts and circumstances at the time of the search.”

The e-mails seized in this case were originally prepared in an office in HQMC on a computer owned by the Marine Corps and issued to Appellee. They were transmitted over the HQMC network system, stored on the HQMC server, and retrieved by the HQMC network administrator. Each of those factors might arguably fit a situation where society would be unwilling to recognize an individual expectation of privacy. Other evidence in this case, however, convinces us that Appellee’s subjective expectation of privacy in these e-mails is one that society is prepared to accept as reasonable.

We consider the testimony of Mr. Asesor, the network administrator, describing the agency practices and policies to be most persuasive. We look to office practices because the Supreme Court in O’Connor indicated that privacy expectations in the workplace may be reduced by virtue of office practices, procedures, or regulation. In this case, the policies and practices of HQMC reaffirm rather than reduce the expectations regarding privacy on office computers. These policies, among other things, require individual users to have passwords known only to themselves and to change their passwords periodically to ensure privacy. Additionally, these policies limit outside network access to the network administrator and describe very limited conditions under which he would monitor the network for unauthorized use.

The testimony of the Government’s witness about policies and practices is strong evidence that Appellee’s subjective expectation of privacy was objectively reasonable. Mr. Asesor explained that HQMC’s policy regarding using the network to send personal e-mails had always been lenient and that such use of the network was considered authorized. Mr. Asesor further testified that when doing the testing and monitoring of the network, he did not monitor individual accounts because “it’s a privacy issue.”

The totality of the circumstances in this case leads us to conclude that, unlike in Monroe, Appellee’s expectation of privacy was objectively reasonable. The HQMC log-on banner explained that the network administrator had access to Appellee’s computer as a “monitoring” function. The e-mails retrieved in this case were from Appellee’s account on an unclassified government computer system on which she was authorized limited personal use and were not obtained for maintenance or monitoring purposes.

Delay in booking time on a shoplifting was shown to be pretextual for narcs. State v. Perez, 141 P.3d 1039 (Haw. August 28, 2006):

Here, the prosecution does not challenge the circuit court’s finding that normal processing time for shoplifting arrests runs from one to two hours, but is one hour if things are running smoothly. It is also undisputed that Perez’s detention ran into a second hour not because things were not running smoothly, but because his processing had ceased while waiting for the narcotics detectives. Accordingly, given that the second hour of Perez’s detention was concededly pretextual, it cannot be justified under Vance and Langley.

No IAC where it was obvious that any motion to suppress would have failed. Branch v. State, 2006 Fla. LEXIS 1825 (August 31, 2006).*

Defendant was found slumped behind the wheel of his car, and it was no violation of defendant’s rights to run the tags and the driver’s information derived therefrom which found a warrant out for the defendant that led to his arrest. State v. Kelley, 934 So. 2d 51 (La. July 10, 2006).*

The affidavit for a search warrant in a 78 count white collar case from the Virgin Islands was held by the District Court to be so infused with reckless information that it suppressed the search, effectively ending the government’s case. On appeal, the Third Circuit independently reviewed the evidence and concluded that the affiant officer earnestly tried to corroborate information from other governmental sources and provide the best possible information he could. Therefore, the officer was not reckless under Franks. The government argued, without success, as quoted below, that the product of the search could prove the affiant correct, but the court could not accept that argument because it would justify the search based on evidence never presented to the Magistrate Judge, and the “tail would wag the dog.” United States v. Yusuf, United States v. Yusuf, (3d Cir. August 24, 2006):

Finally, a review of the record reveals a reasonably plausible explanation for the incorrect information provided by VIBIR [Virgin Islands Bureau of Internal Revenue] at the time that Agent Petri submitted the affidavit to the magistrate judge: that United had underreported its gross receipts to VIBIR for 1998 through 2000. Our review demonstrates that Petri undertook his investigation with some skepticism, but that he and his fellow agents were assured at every possible investigatory avenue that the records provided by VIBIR were accurate. Agent Petri and his fellow officers did not simply “go through the motions,” but diligently pressed VIBIR to ensure that the information was correct. Agent Petri testified at the Franks hearing that he attempted to disprove the validity of the figures provided by VIBIR. (App. 557.) After being assured repeatedly by VIBIR that the information was accurate, Agent Petri was left with the eminently plausible conclusion at that point in the investigation that United had underreported its gross receipts returns. That this information later turned out to be incorrect because of VIBIR’s internal mistakes is not determinative, as we focus our analysis under Franks on whether a reasonable officer in Agent Petri’s position would have had an obvious reason at the time he submitted the affidavit to doubt the accuracy of the information. No such reason existed in this case.

. . .

n11 Defendants argue, and the District Court agreed, that Agent Petri omitted material information in the affidavit: namely, that he did not inform the magistrate judge that he was uncomfortable with the discrepancies in the data. We disagree. Agent Petri’s purported omission consists of his alleged subjective misgivings regarding the quality of the information he received from VIBIR. A review of the affidavit reveals, however, that Agent Petri did not omit any material information in the affidavit, as paragraph 23 contains the discrepancy between the income tax filings and the gross receipts. Our cases dealing with purported material omissions have not recognized that an agent is required to set forth his subjective misgivings regarding information in the affidavit; rather, those decisions have focused on whether the agent recklessly omitted objective information that is material to the magistrate judge’s determination of probable cause. See Wilson v. Russo, 212 F.3d 781, 791 (3d Cir. 2000) (omitting fact that eyewitness spotted defendant in a different location while a crime was ongoing); Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir. 1997) (omitting fact that officer directed third-party to make drug purchase); United States v. Frost, 999 F.2d 737, 743-44 (3d Cir. 1993) (omitting fact that drug dog was not “alerted” to alleged courier’s suitcase).

The court added interesting language about the purpose of the Franks doctrine about reformulating PC with additional information derived from the search:

The disconcerting part of our analysis of the District Court’s decision is that the ultimate determination of whether the assertions in paragraphs 23 and 24 were made with reckless disregard for the truth is inconsequential. The reformulated affidavit clearly establishes probable cause to authorize the search warrants. n12 Even if this Court were to strike paragraphs 23 and 24 from the affidavit, there are sufficient factual allegations of money laundering to support a finding of probable cause to search the three Plaza Extra supermarkets for corporate business records.

n12 We note that it would be improper to reformulate the affidavit with the “correct” gross receipts figures reported in United’s 1998 through 2000 Virgin Islands tax returns to show a $7.16 million difference between what was reported on United’s Virgin islands gross receipts returns and what was reported on its 1998 through 2000 U.S. corporate income tax returns. The Government contends that information allegedly indicating that United had underreported its gross income by $7.16 million would have established probable cause to issue the warrants. Defendants, in contrast, assert that it would be improper to reformulate the affidavit with the “corrected” figures because the Government would not be deterred by its own misconduct.

We agree with defendants. The purpose of Franks and its progeny is to deter law enforcement personnel from including recklessly false information in affidavits of probable cause. If an agent provides recklessly false information, the government should not get the benefit of the fortuitous circumstance that evidence obtained as a result of the defective search warrant would have been sufficient to establish probable cause had it been contained in the original affidavit. The Government’s argument assumes that the tail can wag the dog, i.e., that we can consider the corrected information. This argument is flawed, however, because the magistrate judge is limited to the facts submitted in the affidavit in making a determination of probable cause. United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001). Indeed, in reviewing whether the magistrate had a “substantial basis” to issue the warrant, we are limited to reviewing the affidavit and cannot “consider information from 28 other portions of the record.” Id.; see also United States v. Button, 653 F.2d 319, 326 n.8 (8th Cir. 1981). If we were to “correct” the affidavit as suggested by the Government, we would not only be infusing extraneous information into the probable cause determination, but we would also allow the Government to receive the benefit of its misconduct. See Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984) (explaining that the purpose of the exclusionary rule is to ensure that “the prosecution is not put in a better position than it would have been in if no illegality had transpired”); see also Baldwin v. Placer County, 418 F.3d 966, 971 (9th Cir. 2005) (holding that a reformulated affidavit must be based upon information already contained in the warrant); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.4(c) (4th ed. 2004) (stating that an affidavit that contains knowing falsehoods “should not be open to rehabilitation by a process of substituting for the affiant’s lies other information which is really the truth from which he deliberately departed”). That result is not endorsed by Franks, which requires courts to “set to one side” the affirmative misstatements and determine whether the remaining information in the affidavit supports a finding of probable cause. 438 U.S. at 155; see also Baldwin, 418 F.3d at 971.

Additional information may be incorporated into an affidavit only if we determine that a government agent made a material omission. The reason for the distinction between omissions and misrepresentations is that an omission cannot be excised; rather, the omitted information is introduced into the affidavit in order to determine whether the omission was material. See Sherwood, 113 F.3d at 400. See also 2 LaFave, supra, § 4.4(c) (noting that the outcome in Franks challenges may turn on whether the defect is a material omission or a misstatement). Because the alleged misconduct in this case focuses on misstatements by a government agent, rather than omissions, we will not reformulate the affidavit with the “corrected” gross tax receipts information.

Today’s will appear in parts because I’m in court early.

During a home visit, parole officer saw the handle of a machete sticking out from under defendant’s mattress. That justified a further search that revealed a firearm. The search was valid under Samson, likely even without that added justification. United States v. Massey, 461 F.3d 177 (2d Cir. August 22, 2006).*

Pro se target of search warrant sought return of property under Rule 41(g) on two grounds, failure to show PC and seizure of evidence beyond the scope of the warrant. The affidavit did show PC and the evidence seized was within the warrant. There is no requirement that the warrant specify the crime under investigation. In re 22 Blackwatch Trail Apt. No. 8, 2006 U.S. Dist. LEXIS 59151 (W.D. N.Y. August 22, 2006).

City code enforcement officer entered on plaintiff’s driveway to take pictures for a city court case. Plaintiff had no REP in the driveway area. Boren v. City of Nampa, 2006 U.S. Dist. LEXIS 58955 (D. Idaho August 18, 2006).

Hospital physician was not acting under color of law when he conducted a rectal exam of the plaintiff looking for hidden drugs. The police believed that plaintiff had swallowed baggies of cocaine, but an x-ray was negative. Plaintiff was brought in because of fear of an overdose. Williams v. Brann, 2006 U.S. Dist. LEXIS 58578 (E.D. Wisc. August 18, 2006).

NYPD acted reasonably in entering plaintiff’s apartment without a warrant to seize a 450 pound tiger that bit off part of plaintiff’s leg. Yates v. City of New York, 2006 U.S. Dist. LEXIS 54199 (S.D. N.Y. August 4, 2006)* (see story on CNN.com).

IRS SW for records of defendant’s business there and at his home were supported by PC. It was apparent from mail covers that some business records were at home. In the course of the search, officers found defendant was FIPF. United States v. Rankin, 442 F. Supp. 2d 225 (E.D. Pa. August 4, 2006).*

When defendant was stopped for traffic offense, officers had already heard from the DEA that he travelled with armed body guards, so it was reasonable to get him out of the car and frisk him. United States v. Gomez, 2006 U.S. Dist. LEXIS 54180 (S.D. Tex. August 4, 2006).*

Although defendant did not own a car parked on his property that was being linked to an arson, it was on his curtilage, and that gave him standing. From the car, the officer could smell kerosene. While a SW had not been obtained, inevitable discovery was shown, and the kerosene odor would have been found anyway. State v. Stallings, 2006 Tenn. Crim. App. LEXIS 603 (July 26, 2006)* (this case is almost one that justifies the search by the result to find it harmless).

Police received a citizen informant’s report that a car with a specific Montana plate had left a motel, and the hallway and two rooms smelled like marijuana. The police found the car and pulled it over. The only corroboration was of the license number. Nothing out of the ordinary was going on, and the driver and occupants were acting normally. The stop and ordering them out of the car and then searching it was unreasonable. State v. Sweedland, 2006 SD 77, 721 N.W.2d 409 (August 16, 2006).

Defendant was clocked at 88 in a 65, and that was reason for his stop. While checking the license, the officer found out defendant had an outstanding warrant. Defendant’s admission that he had a gun was pre- and post-Miranda, therefore not suppressed, and the gun would have inevitably been found in an inventory search of the car. United States v. Smith, 2006 U.S. Dist. LEXIS 58172 (N.D. Ohio August 18, 2006).*

Parole officer’s home visit led to finding of a gun, and it is clear under Knights and Samson that parolees have a far lesser expectation of privacy than the general public. United States v. Stuckey, 2006 U.S. Dist. LEXIS 58173 (S.D. N.Y. August 8, 2006).*

The Sixth Circuit granted a stay pending appeal yesterday in the NSA wiretapping case in ACLU v. National Security Agency/National Security Service, 2006 WL 2827166 (6th Cir. October 4, 2006):

The government moves for a stay pending appeal of the district court’s order holding the Terrorist Surveillance Program unconstitutional and permanently enjoining the Government from utilizing the Program “in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of [FISA and Title III].”

In considering whether a stay pending appeal should issue, we balance the traditional factors governing injunctive relief: (1) whether the applicant has demonstrated a substantial likelihood of success on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other interested parties; and (4) where the public interest lies. Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir. 2002); Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). This court, in Grutter v. Bollinger, 247 F.3d 631, 633 (6th Cir. 2001), noted that

“Michigan Coalition said that the success on the merits which must be demonstrated is inversely proportional to the harm. More than a possibility of success must be shown, and ‘even if a movant demonstrates irreparable harm that decidedly outweighs any potential harm to the nonmoving party if a stay is granted, he is still required to show, at a minimum, “serious questions going to the merits.”‘ (edits and citations omitted).”

After careful review, we conclude that this standard has been met in this case. Accordingly, the motion for a stay pending appeal is GRANTED.

Stop based on car stopping on the stop line was valid and not shown to be pretextual. Drug dog alert after that was valid. Arguments about the dog’s qualifications go to the weight of the evidence of PC, not lack of PC per se. United States v. Smith, 2006 U.S. Dist. LEXIS 53693 (M.D. Fla. August 3, 2006).

Defendant was visited by two officers in a child porn investigation who talked with him for two hours, and he was cooperative. They even let him take a telephone call he was expecting. Finally, the Mirandized him and asked to search the computer, and he let them. “Polk’s own testimony supports the conclusion that at the time of the interview in February 2005 Polk wanted very much to fully cooperate with the officers and was willing to consent to a search of the computer.” United States v. Polk, 2006 U.S. Dist. LEXIS 53662 (D. Me. August 2, 2006) [one cannot say that the defendant’s testimony at the suppression hearing lost the motion; it looked like he was going to lose it anyway, so there was nothing to lose].*

Defendant whose corporation bought limos that he rode in did not have standing to challenge their search. His use was hardly exclusive. United States v. Smith, 2006 U.S. Dist. LEXIS 53649 (D. Minn. August 2, 2006).

Defendant having pled guilty was not entitled to return of seized firearms under Rule 41(g), even for delivery to others, because he was no longer entitled to own them. United States v. Garman, 2006 U.S. Dist. LEXIS 53616 (W.D. Wash. August 2, 2006).

Officers did not violate Randolph in gaining entrance into defendant’s home to question him about an anthrax scare. Indeed, Randolph does not even apply because there was no one vetoing consent except defendant, and it came too late. There was no attempt to withdraw consent until after defendant confessed and was arrested. United States v. Dixon, 2006 U.S. Dist. LEXIS 53842 (E.D. La. July 20, 2006).*

Federal courts are not sitting today. Many state courts are, such as mine, but my state appellate courts do not hand down opinions on Mondays.

The Second Circuit upholds random suspicionless NYC subway searches in MacWade v. Kelly, 460 F.3d 260 (2d Cir. August 11, 2006) (free link at ca2.uscourts.gov, recent decisions, MacWade). See NY Times article and AP article on Findlaw.

Remember, the program was instituted right after the London subway bombings, and the Second Circuit’s opinion comes 48 hours after British police break up a conspiracy to bomb airliners bound for the U.S. from London.

We consider whether the government may employ random, suspicionless container searches in order to safeguard mass transportation facilities from terrorist attack. The precise issue before us is whether one such search regime, implemented on the New York City subway system, satisfies the special needs exception to the Fourth Amendment’s usual requirement of individualized suspicion. We hold that it does.

Plaintiffs timely appealed, raising three claims: (1) the special needs doctrine applies only in scenarios where the subject of a search possesses a diminished expectation of privacy, and because subway riders enjoy a full expectation of privacy in their bags, the District Court erred in applying the special needs exception here; (2) the District Court erred in finding that the search program serves a “special need” in the first instance; and (3) even if the search program serves a special need, the District Court erred in balancing the relevant factors because (a) the searches are intrusive; (b) there is no immediate terrorist threat; and (c) the City’s evidence fails as a matter of law to establish that the Program is effective.

As set forth more fully below, we hold that the special needs doctrine may apply where, as here, the subject of a search possesses a full privacy expectation. Further, we hold that preventing a terrorist attack on the subway is a “special” need within the meaning of the doctrine. Finally, we hold that the search program is reasonable because it serves a paramount government interest and, under the circumstances, is narrowly tailored and sufficiently effective.

After finding the “special needs” exception applies, the court applies it to the facts:

Having concluded that the Program serves a special need, we next balance the factors set forth above to determine whether the search is reasonable and thus constitutional.

(i) The government interest is immediate and substantial

Given the “enormous dangers to life and property from terrorists” bombing the subway, “we need not labor the point with respect to need . . . .” United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974). As they must, plaintiffs concede that the interest in preventing such an attack is “paramount” but contend that the lack of “any specific threat to the subway system” weakens that interest by depriving it of immediacy. Plaintiffs again overstate the relevance of a specific, extant threat.

The Supreme Court, citing Edwards as “a leading case,” noted that no express threat or special imminence is required before we may accord great weight to the government’s interest in staving off considerable harm. See Von Raab, 489 U.S. at 675 n. 3 (noting that “a demonstration of danger as to any particular airport or airline” is not required since “[i]t is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from spreading”). All that is required is that the “risk to public safety [be] substantial and real” instead of merely “symbolic.” Chandler v. Miller, 520 U.S. 305, 322-23 (1997) (“[W]here the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’ – for example, searches now routine at airports and at entrances to courts and other official buildings.”); see also Bd. of Educ. v. Earls, 536 U.S. 822, 835-36 (2002) (noting that “the need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy” and that the school district need not await a “particularized or pervasive drug problem before . . . conduct[ing] suspicionless drug testing”).

Pursuant to this standard, the threat in this case is sufficiently immediate. In light of the thwarted plots to bomb New York City’s subway system, its continued desirability as a target, and the recent bombings of public transportation systems in Madrid, Moscow, and London, the risk to public safety is substantial and real. Cf. Hartwell, 436 F.3d at 179 (“[T]here can be no doubt that preventing terrorist attacks on airplanes is of paramount importance.”); Marquez, 410 F.3d at 618 (“It is hard to overestimate the need to search air travelers for weapons and explosives before they are allowed to board the aircraft. As illustrated over the last three decades, the potential damage and destruction from air terrorism is horrifically enormous.”). The District Court did not err in according this factor substantial weight in support of constitutionality.

(ii) A subway rider has a full expectation of privacy in his containers

Although not a dispositive, threshold consideration, the nature of the privacy interest compromised by the search remains an important balancing factor. Whether an expectation of privacy exists for Fourth Amendment purposes depends upon two questions. “First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy . . . .” Bond v. United States, 529 U.S. 334, 338 (2000). “Second, we inquire whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.” Id. (internal quotation marks omitted). As to the first question, a person carrying items in a closed, opaque bag has manifested his subjective expectation of privacy by keeping his belongings from plain view and indicating “that, for whatever reason, [he] prefer[s] to keep [them] close at hand.” Id. Further, the Supreme Court has recognized as objectively reasonable a bus rider’s expectation that his bag will not be felt “in an exploratory manner” from the outside, id. at 338-39, let alone opened and its contents visually inspected or physically manipulated. See generally New Jersey v. T.L.O., 469 U.S. 325, 338 (1985) (“[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.” (internal quotation marks omitted)). Accordingly, a subway rider who keeps his bags on his person possesses an undiminished expectation of privacy therein. We therefore weigh this factor in favor of plaintiffs.

(iii) The search is minimally intrusive

Although a subway rider enjoys a full privacy expectation in the contents of his baggage, the kind of search at issue here minimally intrudes upon that interest. Several uncontested facts establish that the Program is narrowly tailored to achieve its purpose: (1) passengers receive notice of the searches and may decline to be searched so long as they leave the subway, see Hartwell, 436 F.3d at 180-81; Marquez, 410 F.3d at 617-18; Edwards, 498 F.2d at 500; (2) police search only those containers capable of concealing explosives, inspect eligible containers only to determine whether they contain explosives, inspect the containers visually unless it is necessary to manipulate their contents, and do not read printed or written material or request personalinformation, see Marquez, 410 F.3d at 617; (3) a typical search lasts only for a matter of seconds, see Illinois v. Lidster, 540 U.S. 419, 427 (2004); (4) uniformed personnel conduct the searches out in the open, which reduces the fear and stigma that removal to a hidden area can cause, see United States v. Martinez-Fuerte, 428 U.S. 543, 558 (1976); Hartwell, 436 F.3d at 180; and (5) police exercise no discretion in selecting whom to search, but rather employ a formula that ensures they do not arbitrarily exercise their authority, see Von Raab, 489 U.S. at 667; United States v. Green, 293 F.3d 855, 860 (5th Cir. 2002). Although defendants need not employ “the least intrusive means,” Earls, 536 U.S. at 837, to serve the state interest, it appears they have approximated that model. Given the narrow tailoring that the Program achieves, this factor weighs strongly in favor of defendants, as the District Court properly concluded.

(iv) The Program is reasonably effective

In considering the “degree to which the seizure advances the public interest,” we must remember not to wrest “from politically accountable officials . . . the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger.” Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 453-54 (1990) (internal quotation marks omitted). That decision is best left to those with “a unique understanding of, and responsibility for, limited public resources, including a finite number of police officers.” Id. at 454. Accordingly, we ought not conduct a “searching examination of effectiveness.” Id. at 454 (internal quotation marks omitted); see also Hartwell, 436 F.3d at 179-80 n. 9 (recognizing the court’s limited role in gauging efficacy). Instead, we need only determine whether the Program is “a reasonably effective means of addressing” the government interest in deterring and detecting a terrorist attack on the subway system. Earls, 536 U.S. at 837; Maxwell v. City of New York, 102 F.3d 664, 667 (2d Cir. 1996).

The District Court credited the expert testimony of Sheehan, Cohen, and Clarke concerning the Program’s deterrent effect. Plaintiffs neither contest their expertise nor directly attack the substance of their testimony. Instead, plaintiffs claim that the Program can have no meaningful deterrent effect because the NYPD employs too few checkpoints. In support of that claim, plaintiffs rely upon various statistical manipulations of the sealed checkpoint data. We will not peruse, parse, or extrapolate four months’ worth of data in an attempt to divine how many checkpoints the City ought to deploy in the exercise of its day-to-day police power. Counter-terrorism experts and politically accountable officials have undertaken the delicate and esoteric task of deciding how best to marshal their available resources in light of the conditions prevailing on any given day. We will not – and may not – second-guess the minutiae of their considered decisions. Sitz, 496 U.S. at 453.

Defendant was in the premises of a third person, and police had an arrest warrrant for him. The entry was valid under Steagald, and it is illogical to grant the defendant more standing than he would be entitled under Payton. RS that the person named in the warrant is required, not PC. “[T]he Government argues that while a circuit-split does exist, a majority of the circuits that have ruled on the issue have determined that a lesser reasonable belief standard, and not probable cause, is sufficient to allow officers to enter a residence to enforce an arrest warrant, and that the officers here had adequate information in this case to meet this standard. We agree.” United States v. Pruitt, 458 F.3d 477 (6th Cir. August 11, 2006).

Habeas and procedural default: Changing the issue between the trial court and the appeals court constitutes procedural default for habeas purposes. Simpson v. Battaglia, 458 F.3d 585 (7th Cir. August 11, 2006).

SW for seizure of all computer media was not overbroad under the facts of this case. United States v. Hill, 459 F.3d 966 (9th Cir. August 11, 2006).

We agree with the district court that under the circumstances here, the warrant was not fatally defective in failing to require an onsite search and isolation of child pornography before removing storage media wholesale. That does not mean, however, that the government has an automatic blank check when seeking or executing warrants in computer-related searches. Although computer technology may in theory justify blanket seizures for the reasons discussed above, the government must still demonstrate to the magistrate factually why such a broad search and seizure authority is reasonable in the case at hand. There may well be situations where the government has no basis for believing that a computer search would involve the kind of technological problems that would make an immediate onsite search and selective removal of relevant evidence impracticable. Thus, there must be some threshold showing before the government may “seize the haystack to look for the needle.”

The Fourth Circuit, recognizing a split with most other circuits, determines that incorporation by reference of a list of the “things to be seized” does not require physical attachment, finding refuge in one sentence of Groh v. Ramirez. United States v. Hurwitz, 459 F.3d 463 (4th Cir. August 22, 2006):

We recognize that a majority of our sister Circuit Courts of Appeals appear to require the satisfaction of both conditions before allowing a separate document to be read as part of the search warrant. See Bartholomew v. Pennsylvania, 221 F.3d 425, 428-29 (3rd Cir. 2000); United States v. McGrew, 122 F.3d 847, 849-50 (9th Cir. 1997); United States v. Dahlman, 13 F.3d 1391, 1395 (10th Cir. 1993); United States v. Dale, 301 U.S. App. D.C. 110, 991 F.2d 819, 846-47 (D.C. Cir. 1993) (per curiam); United States v. Morris, 977 F.2d 677, 681 n.3 (1st Cir. 1992); United States v. Curry, 911 F.2d 72, 77 (8th Cir. 1990). In this circuit, however, it is sufficient either for the warrant to incorporate the supporting document by reference or for the supporting document to be attached to the warrant itself. See Washington, 852 F.2d at 805 (concluding that warrant was sufficiently particular where the warrant completely failed to refer to the supporting affidavit listing items to be seized but the affidavit was attached, and explaining that “[a]n affidavit may provide the necessary particularity for a warrant if it is either incorporated into or attached to the warrant”) (emphasis added) (internal quotation marks omitted). At least one other circuit subscribes to this view. See Baranski v. Fifteen Unknown BATF Agents, 452 F.3d 433 (6th Cir. 2006) (en banc).

. . .

These policy aims, as important as they may be, do not reflect a constitutional mandate that an executing officer possess or exhibit the affidavit or any other document incorporated into the warrant at the time of the search in order for the warrant to be valid. The Fourth Amendment does not require an officer to serve a search warrant before executing it. See Groh, 540 U.S. at 562 n.5. In fact, the Fourth Amendment is not offended where the executing officer fails to leave a copy of the search warrant with the property owner following the search, see United States v. Simons, 206 F.3d 392, 403 (4th Cir. 2000), or fails even to carry the warrant during the search, see Mazuz v. Maryland, 442 F.3d 217, 229 (4th Cir. 2006). “[T]he requirement of particular description does not protect an interest in monitoring searches” or “engag[ing] the police in a debate” about the warrant. United States v. Grubbs, 126 S. Ct. 1494, 1501 (2006). Rather, “[t]he Constitution protects property owners . . . by interposing, ex ante, the deliberate, impartial judgment of a judicial officer” and “by providing, ex post, a right to suppress evidence improperly obtained.” Id. (internal quotation marks omitted). These protections are sufficient to ensure that the officer’s search is properly limited and to provide assurance to the property owner that the executing officer enjoys the lawful authority to search for specific items. Indeed, Hurwitz was able to examine Agent Lucas’s affidavit and its attachment and raise a full and complete challenge to the validity of the warrant after the search. We see nothing in the Constitution requiring that an officer possess or exhibit, at the time of the search, documents incorporated into a warrant as an additional safeguard for the particularity requirement. See Baranski, 452 F.3d at 443. Accordingly, the district court did not err by rejecting Hurwitz’s claim that the absence of the Attachment at the time of the search rendered the warrant invalid.

Report of ten possible illegal aliens entering back of house brought Border Patrol for a knock and talk. The person consenting to the entry had apparent authority to consent to the entry, despite voicing her reservations. She had been living there about a week, she answered the officers’ knock, and she offered water to the people inside. United States v. Salazar-Vasquez, 2006 U.S. Dist. LEXIS 58349 (S.D. Tex. August 18, 2006).*

Traffic stop ripened to reasonable suspicion as the facts developed during the conversation about the stop. United States v. Villalovos, 2006 U.S. Dist. LEXIS 58541 (W.D. La. July 21, 2006).*

Hudson v. Michigan cuts off an IAC claim against defense counsel for not challenging an alleged failure to knock and announce. In re Frank S., 142 Cal. App. 4th 145 (1st Dist. August 21, 2006).*

Cases will be late today because of a trial. In the meantime:

Attorney General Gonzales appeared before Congress yesterday to urge them to require Internet service providers (ISPs) to keep content longer for child porn investigations. See Gonzales Urges Preserving Internet Records on NYTimes.com.

Attorney General Alberto R. Gonzales said Congress should require Internet providers to preserve customer records, adding that prosecutors need them to fight child pornography. Testifying to a Senate committee, Mr. Gonzales acknowledged concerns that such legislation might be overly intrusive and encroach on privacy rights. But he said the government’s lack of access to such information was the biggest obstacle to deterring child pornography.

Testifying to a Senate panel, Gonzales acknowledged the concerns of some company executives who say legislation might be overly intrusive and encroach on customers’ privacy rights. But he said the growing
threat of child pornography over the Internet was too great.

“This is a problem that requires federal legislation,” Gonzales told the Senate Banking Committee. “We need information. Information helps us makes cases.”

He called the government’s lack of access to customer data the biggest obstacle to deterring child porn.

“We have to find a way for Internet service providers to retain information for a period of time so we can go back with a legal process to get them,” he said.

Child porn is, I submit, a cover story because it will make Congress do what the Administration wants.

Next, instead of subpoenas or search warrants for ISP records, national security letters (NSLs) will be used to mine ISP data for any other crime that the government wants to investigate. Alleged terrorism will be the first, then everything else will be subject to seizure. Will a Republican Congress limit such efforts to these crimes alone? Doubtful, but the Administration has had no success thus far. Before an election, however, anything is possible. Republicans (and Democrats, but the Republicans seem to have first dibs) always want to roll out their “tough on crime” banner.

Overnight I received an e-mail from the Youth Policy Action Center: Say “No” to More Student Searches /
Posted by: Students for Sensible Drug Policy.

Students for Sensible Drug Policy is asking for your help to stop a bill that would further curtail the rights of students in public schools all across the country. The so-called “Student and Teacher Safety Act of 2006” (H.R. 5295) would make it easier for teachers and school administrators to search students’ lockers and bags for drugs and other contraband. SSDP needs your help to make sure that this bill never becomes law.

H.R. 5295 would allow school officials to search dozens or even hundreds of students based on the mere suspicion that just one student brought drugs to school. This kind of justification allowed police officers to storm a high school in Goose Creek, SC, in 2003, forcing dozens of students to the ground and pointing guns directly at their faces during a misguided raid in which no drugs were found.

This bill is nothing more than another attack on the constitutional rights of young people by the federal government. Students should never have to check their constitutional rights at the schoolhouse door.

The bill can be found on thomas.gov. It was introduced on May 4, 2006. The “congressional findings” are in § 2.

SEC. 3. SEARCHES ON COLORABLE SUSPICION.

(a) In General– Each State, local educational agency, and school district shall have in effect throughout the jurisdiction of the State, agency, or district, as the case may be, policies that ensure that a search described in subsection (b) is deemed reasonable and permissible.

(b) Searches Covered– A search referred to in subsection (a) is a search by a full-time teacher or school official, acting on any colorable suspicion based on professional experience and judgment, of any minor student on the grounds of any public school, if the search is conducted to ensure that classrooms, school buildings, and school property remain free of all weapons, dangerous materials, or illegal narcotics.

SEC. 4. ENCOURAGEMENT TO PROTECT STUDENTS AND TEACHERS.

(a) In General- A State, local educational agency, or school district that fails to comply with section 3 shall not, during the period of noncompliance, receive any Safe Schools and Citizenship Education funds after fiscal year 2008.

The sponsor is Geoff Davis, R-KY4, and his home page today shows a news release posting from September 15 about hearings this week.

First question: Where is the federal interest? Another Republican interested in more federal interference in our lives? No, re-election politics. He has an opponent for re-election. Just Google him.

Second question: When his staffers wrote this thing, why did they use “colorable suspicion” instead of reasonable suspicion? Do they intend it be defined to provide less protection than the Fourth Amendment, which already permits broad searches in schools?

A person leaving the U.S. and denied entry into Canada is subject to a border search the same as a traveler who was accepted into Canada. Canadian authorities suspected defendant had child porn on his laptop computer, found it, and detained him until he could fly back to Seattle. On reentry into the U.S., Customs could search his computer as a part of the border search. He was given away by his browser history, too. United States v. Romm, 455 F.3d 990 (9th Cir. July 24, 2006).