WaPo: The Fourth Amendment and regional variation by Orin Kerr:
The recent circuit split between the Fifth Circuit and the Eleventh Circuit over collecting cell-site records without a warrant prompts an interesting question about how Fourth Amendment doctrine responds to regional variation. Here’s the question: If two places adopt two different fourth Amendment standards, what law applies when the evidence collection involves both places?
AntiWar.com: Your Local Police May Be Collecting Metadata by Lucy Steigerwald:
When talking of freewheeling domestic spying, it would behoove us to remember that it’s not just the National Security Agency (NSA) that needs reform and a tight leash. Hell, it’s not even just federal agencies who are disinterested in your Fourth Amendment rights. Like the war toys that move from the Pentagon down to myriad local law enforcement agencies, dragnet spying is happening at the state and city level, too.
Last Friday, VICE Motherboard’s Max Cherney reported on the continued, disturbing trend of local police departments acquiring International Mobile Subscriber Identity (IMSI) catchers, more commonly referred to by brand names such as Trigger Fish and Stingray. These suitcase-sized devices act as fake cell phone towers – phones in offices, homes, or pockets connect to them, and then cops can read identifying information, and access metadata such as call length, stored numbers, who you’ve called (even if you’re not calling anyone at the moment), and location data. Cherney notes that the capability for the devices to monitor voice content is (supposedly) disabled domestically, but it can read SMS text messages.
NYT: As Justice Department Scrutinizes Local Police, Cleveland Is Latest Focus by Erik Eckholm:
CLEVELAND — As cries of “shots fired” shrieked from police radios, a caravan that grew to 62 patrol cars chased an old blue Malibu through 20 miles of this city’s streets and highways. The vehicle and its two occupants were surrounded in a school lot, and in a disorienting jumble of sirens and strobes, officers fired 137 rounds at close range.
When the shooting stopped that night in November 2012, a man and a woman, both African-American, were dead, riddled with bullets in the car’s front seat. There was no evidence that either had a gun. Investigations suggested that they had set out to purchase crack cocaine in a car that apparently backfired as it passed an officer, and then panicked when the police tried to pull them over.
Late last month, one officer was indicted on manslaughter charges and five supervisors were charged with criminal dereliction of duty.
Center for Investigative Reporting: Plans to expand scope of license-plate readers alarm privacy advocates by Ali Winston:
Documents obtained by The Center for Investigative Reporting show that a leading maker of license-plate readers wants to merge the vehicle identification technology with other sources of identifying information, alarming privacy advocates. Vigilant Solutions is pushing a system that eventually could help fuse public records, license plates and facial recognition databases for police in the field.
WaPo: Rand Paul’s drug war talk in Iowa was important, but not for the reason you think by Radley Balko:
Iowa leads the country in racially disproportionate pot arrests.
Defendant’s Franks challenge fails because the information omitted isn’t material at all to the outcome. Officers used an arrest warrant to gain entry and they reasonably believed she was there. After all, she answered the door. A protective sweep doesn’t need to end as soon as she was in custody. United States v. Blevins, 2014 U.S. App. LEXIS 11138 (5th Cir. June 16, 2014).*
An attorney’s declaration of defendant’s standing to challenge CSLI is insufficient in the Second Circuit. United States v. Serrano, 2014 U.S. Dist. LEXIS 81478 (S.D. N.Y. June 10, 2014).*
Crossing the white lines on both sides of the road 8 times in 2 miles was justification for a stop. Admission to drinking led to FST which was with reasonable suspicion and you know the rest. State v. Gladman, 2014-Ohio-2554, 2014 Ohio App. LEXIS 2503 (2d Dist. June 13, 2014).*
Even if the New York Sex Offender Registration Act constituted a search and seizure or implicated the Fourth Amendment at all [which is not clear or obvious], it would survive special needs analysis. Doe v. Cuomo, 2014 U.S. App. LEXIS 11198 (2d Cir. June 16, 2014):
Lastly, Doe argues that the registration requirements violate his Fourth Amendment right to be free from unreasonable searches and seizures. Even if we assume for argument that SORA’s requirements subject Doe to a search or seizure for Fourth Amendment purposes, we cannot agree that any such search or seizure is unreasonable. Here, any searches or seizures required by SORA serve special needs—such as the protection of potential future victims and the solving of crimes in the future—and purport neither to facilitate the investigation of any specific crime nor primarily to serve a “general interest in crime control.” See Nicholas v. Goord, 430 F.3d 652, 663, 669 (2d Cir. 2005); Roe v. Marcotte, 193 F.3d 72, 79 (2d Cir. 1999). Moreover, the degree of intrusion on convicted sex offenders is reasonable in relation to the interests advanced by SORA. See Illinois v. Lidster, 540 U.S. 419, 425-26, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004). We therefore conclude that SORA, as amended and as applied to Doe, does not run afoul of the Fourth Amendment.
The government’s keeping three hard drives for 2½ years including many files that were not responsive to the search warrant was unreasonable because it became a de facto general warrant. “Instead, we consider a more limited question: whether the Fourth Amendment permits officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on that computer for use in future criminal investigations. We hold that it does not.” United States v. Ganias, 2014 U.S. App. LEXIS 11222 (2d Cir. June 17, 2014):
These Fourth Amendment protections apply to modern computer files. Like 18th Century “papers,” computer files may contain intimate details regarding an individual’s thoughts, beliefs, and lifestyle, and they should be similarly guarded against unwarranted Government intrusion. If anything, even greater protection is warranted. See, e.g., Galpin, 720 F.3d at 446 (“[A]dvances in technology and the centrality of computers in the lives of average people have rendered the computer hard drive akin to a residence in terms of the scope and quantity of private information it may contain.”); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009) (“The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs ….”); Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 569 (2005) (explaining that computers have become the equivalent of “postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more”).
Not surprisingly, the ability of computers to store massive volumes of information presents logistical problems in the execution of search warrants. It is “comparatively” commonplace for files on a computer hard drive to be “so intermingled that they cannot feasibly be sorted on site.” Tamura, 694 F.2d at 595. As evidenced by this case, forensic analysis of electronic data may take months to complete. It would be impractical for agents to occupy an individual’s home or office, or seize an individual’s computer, for such long periods of time. It is now also unnecessary. Today, advancements in technology enable the Government to create a mirror image of an individual’s hard drive, which can be searched as if it were the actual hard drive but without interfering with the individual’s use of his home, computer, or files.
The Hill: Senators: No ‘watered down’ NSA reform by Julian Hattem
Three senators are doubling down on their call for a sweeping end to the National Security Agency’s “dragnet surveillance.”
Sens. Rand Paul (R-Ky.), Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) pledged on Tuesday to fight against “limited” and “watered down” legislation to reform the spy agency, which they said includes the bill that passed the House last month.
Just because defense counsel has security clearance, he doesn’t get to see all the material used in a FISA warrant for a Franks challenge. Balancing is required. On de novo review, defense counsel doesn’t get it. United States v. Daoud, 2014 U.S. App. LEXIS 11140 (7th Cir. June 16, 2014):
Everyone recognizes that privacy is a legally protectable interest, and it is not an interest of private individuals alone. The Foreign Intelligence Surveillance Act is an attempt to strike a balance between the interest in full openness of legal proceedings and the interest in national security, which requires a degree of secrecy concerning the government’s ef-forts to protect the nation. Terrorism is not a chimera. With luck Daoud might have achieved his goal of indiscriminately killing hundreds of Americans–whom he targeted because, as he explained in an email, civilians both “pay their taxes which fund the government’s war on Islam” and “vote for the leaders who kill us everyday.”
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The U.S. Marshals had an arrest warrant for Nolan, and they put out word on the street. A CI reported that Nolan was at defendant’s house playing video games, so they went there and entered to arrest him. The entry into the defendant’s home was without a search warrant and clearly illegal under Steagald (1981), and drugs found there were suppressed. Benson v. State, 2014 Ala. Crim. App. LEXIS 40 (June 13, 2014):
Here, the State failed to meet its burden of demonstrating that the entry into Benson’s house in order to effectuate the lawful arrest of Nolan was justified by exigent circumstances. At the suppression hearing, the evidence indicated that the sole basis for entering Benson’s house was the confidential tip that a suspected felon was inside the house at the time. The State presented no evidence indicating that Nolan was aware that police were on his trail. There was no evidence showing that Nolan was about to leave Benson’s house. The State also failed to demonstrate that the officers had insufficient time to get a warrant under the circumstances. Although Nolan had an arrest warrant against him for attempted murder, the State did not present any evidence that indicated danger to officers or the public. Although there might have been enough evidence to give officers probable cause for a search warrant, there was not sufficient evidence of exigent circumstances to justify a warrantless entry and search of the house. Accordingly, the evidence seized from the illegal search of Benson’s house must be suppressed. Because Benson’s statement was made as a result of the illegal search it too must be suppressed. See Foldi v. State, 861 So. 2d 414, 419 (Ala. Crim. App. 2002) (“[T]he use of derivative evidence can be barred if the evidence is discovered by the exploitation of a prior police illegality, if the primary taint has not been purged by some intervening act or event.”).
AP: GPS Tracking Case Has Left Unsettled Questions by Eric Tucker:
Judges around the country are grappling with the ripple effects of a 2-year-old Supreme Court ruling on GPS tracking, reaching conflicting conclusions on the case’s broader meaning and tackling unresolved questions that flare in a world where privacy and technology increasingly collide.
The January 2012 opinion in United States v. Jones set constitutional boundaries for law enforcement’s use of GPS devices to track the whereabouts of criminal suspects. But the different legal rationales offered by the justices have left a muddled legal landscape for police and lower-court judges, who have struggled in the last two years with how and when to apply the decision — especially at a time when new technologies are developed at a faster rate than judicial opinions are issued.
ACLU: Stingray Tracking Devices: Who’s Got Them?
The map below tracks what we know, based on press reports and publicly available documents, about the use of stingray tracking devices by state and local police departments. Following the map is a list of the federal law enforcement agencies known to use the technology throughout the United States. But because many agencies continue to shroud their purchase and use of stingrays in secrecy, this map dramatically underrepresents the actual use of stingrays by law enforcement agencies nationwide.
Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity”, Josh Bowers, 66 Stan. L. Rev. 987 (2014). Abstract:
A police officer needs probable cause to make an arrest. But, almost always, he needs no more. In this way, an arrest may be constitutionally reasonable, even if it is entirely unreasonable by any plausible moral or instrumental measure. Indeed, the Court has upheld even an arrest that it termed a “gratuitous humiliation” and a “pointless indignity.” In this article, I examine what accounts for the Court’s prevailing methodological approach to Fourth Amendment reasonableness, and I evaluate whether the Court’s reasoning withstands scrutiny. Specifically, I trace the Court’s methodology back to a particular conception of the legality principle, whereby formalistic measures are crafted around suspicion of guilt and are treated as exclusive. I offer contrary reasons, however, to conclude that the legality principle’s chief purpose (as a safeguard against the arbitrary exercise of executive discretion) is better served by a two-ply constitutional test that would demand both probable cause and general reasonableness. That is, I submit that probable cause might work best as a special supplement to otherwise relevant qualitative considerations (and not as a special substitute). To support this claim, I focus narrowly on one particular qualitative consideration that probable cause has almost completely cannibalized. That consideration is dignity. It is not my purpose, however, to see the Fourth Amendment reoriented around dignity. Dignity matters, but neither it nor probable cause (nor anything else) is all that matters. I rely upon dignity as a placeholder for any of the many qualitative considerations that a quantitative proxy for constitutional reasonableness has unjustifiably ignored.
[Law review articles are reviewed by Prof. Andrew G. Ferguson, UDC School of Law.]
AP: Microsoft: US seizure of cloud data threatens Fourth Amendment:
Microsoft Corp. and four other large American technology companies are using a Manhattan court case to draw a line in the cloud, saying the US government has no right to seize computer data stored outside the country.
US companies that host services over the Internet and sell remote data storage — a concept broadly known as “cloud computing” — say they stand to lose billions of dollars in business if emails and other files they house overseas are seen vulnerable to US snooping.
Chicagoist: Peoria Mayor Is Still Unclear On How The First Amendment Works:
Peoria Mayor Jim Ardis, made famous briefly for overreacting over a parody Twitter account, now faces a lawsuit from the account’s creator. The Illinois ACLU is suing Ardis on behalf of Jon Daniel for violating Daniel’s First and Fourth Amendment rights, after Ardis ordered police to raid his home.
Peoria police executed a search warrant on Daniel’s home under orders from Ardis two months after Twitter suspended the @Peoriamayor parody account, which Daniel created. Police raided the home, confiscated several computers and smartphones and detained five people. Michelle Pratt, who told reporters she “was brought in like a criminal,” was detained for several hours. Another individual was booked on an unrelated pot charge.
There is no reasonable expectation of privacy in a public office holder’s official email accounts under the state public records act. Quon is distinguished, and the email policies show no expectation of privacy. Adkisson v. Abbott, 2014 Tex. App. LEXIS 6411 (Tex. App. – Austin June 13, 2014), modified on rehearing on other grounds Adkisson v. Paxton, 2015 Tex. App. LEXIS 2167 (Tex. App. – Austin March 6, 2015).
The informant hearsay in this case was sufficient to cause a search warrant to issue, and the officers get immunity for executing it. Regets v. City of Plymouth, 2014 U.S. App. LEXIS 11076, 2014 FED App. 0420N (6th Cir. June 10, 2014).*
The Supreme Court Goes to the Dogs: Reconciling Florida v. Harris and Florida v. Jardines, Brian L. Owsley, 77 Alb. L. Rev. 349 (2014). Abstract:
In the most recent Term, the United States Supreme Court has issued rulings affecting criminal investigations and Fourth Amendment rights in two cases involving the use of drug-detection dogs: Florida v. Harris and Florida v. Jardines. These otherwise unrelated appeals from the Supreme Court of Florida both address overlapping issues concerning the use of such dogs by police officers. Although the United States Supreme Court has previously addressed a criminal defendant’s rights in cases involving drug-detection dogs, these two decisions will significantly influence such jurisprudence going forward.
It has long been accepted “that dogs have the ability to detect the smallest traces of odors and to perceive these scents much better than human beings.” Indeed, dogs have been used for their ability to detect scents for over 200 years. This article provides a brief description of the development of the Fourth Amendment jurisprudence regarding sniff tests by drug-detection dogs in Part I. Specifically, it discusses United States v. Place, City of Indianapolis v. Edmond, and Illinois v. Caballes, which were the three leading Supreme Court decisions on these issues prior to the most recently concluded Term. Taken as a whole these three decisions establish that just a sniff by a drug detection dog does not violate the Fourth Amendment. In Part II, the factual and procedural background of Harris as well as its legal analysis is discussed. Next, Part III provides a similar background and analysis for Jardines. Part IV analyzes the differences between Jardines and Harris. This discussion reconciles their differences by finding not only consistency with existing Supreme Court jurisprudence, but also wisdom in both decisions. In Part V, the importance of the reconciliation and the applicability of Harris and Jardines are discussed in the context of cases faced in the United States District Court for the Southern District of Texas. In particular, this section focuses on a month of drug smuggling cases and examines how drug dogs are imperative to the interdiction.
[Law review articles are reviewed by Prof. Andrew G. Ferguson, UDC School of Law.]
While firearms are implicitly involved in drug transactions, the smaller the dealer, the less likely the inference. The search warrant here didn’t specify firearms, and, in drug distribution cases, it’s usually likely a gun will be found. Here, officers thought the firearms were for hunting. Nevertheless, defendant was a felon, and the seizure of the firearms is valid under plain view. United States v. Folk, 2014 U.S. App. LEXIS 10929 (11th Cir. June 12, 2014):
First, we consider Folk’s argument that the firearms fell outside the scope of the warrant. This circuit has routinely recognized that firearms can be so connected to the sale of narcotics that their seizure is implicitly authorized by a warrant to search for narcotics. See, e.g., United States v. Prather, 279 Fed. App’x 761, 766 (11th Cir. 2008) (unpublished) (“When law enforcement officers stumble across hidden guns during a lawful search for drugs, they are allowed to draw the reasonable inference that the guns may be related to drug trafficking occurring at the location.”); United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990) (“The firearms were not improperly seized, though not named in the warrant. They are ‘tools of the drug trade.'”); United States v. Terzado-Madruga, 897 F.2d 1099, 1120 (11th Cir. 1990) (“It is uniformly recognized that weapons are often as much ‘tools of the trade’ as the most commonly recognized narcotics paraphernalia.”); United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986) (“Of course, numerous cases have recognized that guns are a tool of the drug trade. There is a frequent and overpowering connection between the use of firearms and narcotics traffic.”).
Despite this recognized connection between drugs and firearms, the facts in this case give us pause. Vitola admitted that he had no suspicion that Nicholas Brandow was armed while he engaged in his drug transactions or that he was storing firearms in his residence. When he saw the firearms, Vitola believed they were probably used for hunting rather than as tools of the drug trade. The small scale of Nicholas Brandow’s observed drug transactions further differentiates them from larger operations, where the ownership and use of firearms can be more readily inferred. See United States v. Perez, 648 F.2d 219, 224 (5th Cir. 1981) (“[E]xperience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent that they keep scales, glassine bags …, cutting equipment, and other narcotic equipment.”) (emphasis added) (citation omitted) (internal quotation marks omitted).
Ultimately, we need not address whether the search warrant implied authorization to seize the firearms because we hold that the seizure was valid under the plain view doctrine.
