Grits for Breakfast: Virginia, Utah, require warrants for phone location data, Tennessee bill awaiting gov’s signature:
More states have approved legislation requiring law enforcement to obtain warrants to track cell-phone location data, measure that passed the Texas House last year but didn’t make it all the way through the process.
Network World: No reasonable expectation of privacy when third parties cross the creepy line? by Ms. Smith:
A former DHS official suggests SCOTUS has no business expanding Fourth Amendment protections to protect our privacy from third parties who cross the creepy line.
There’s a “creepy line” when tech conveniences and capabilities seem to push too far into privacy rights; yet not everyone can be trusted to decide whether or not new technology used by the government crosses the “creepy line” and if Fourth Amendment protections should kick in. That includes SCOTUS, according to a former DHS official, who reduced the Supreme Court Justices to “nine Baby Boomers” who wouldn’t know the “creepy line” if it bit them on the butt.
Seven major players in the tech industry recently predicted “a vision of the future” for the New York Times, including tech that is “far off” now but will be “commonplace in a decade.” Sebastian Thrun, a founder of Google X, said as an example, “Implantables, like a chip under your fingernail that unlocks all your devices.”
Jason P. Nance, School Surveillance And The Fourth Amendment, 2014 Wis. L. Rev. 79. Abstract:
In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline.
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WaPo: Volokh: Smith v. Maryland as a good first-order estimate of reasonable privacy expectations by Stewart Baker:
Earlier, I promised a post that would make the positive case for the third-party doctrine and Smith v. Maryland.
The case against it seems pretty obvious. Privacy advocates are glad to tell us that the pace of technological change requires that we expand fourth amendment protections. “We’re putting our entire lives on line,” they say. “The government’s ability to collect and analyze data is growing. Only by expanding the fourth amendment can we even the balance that protects our privacy.”Or more colloquially, “Some new technologies are just plain creepy, especially in the hands of the government, and we want the fourth amendment to save us from them.”
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Oregon Live: Mandatory immigration detainers are unconstitutional: Guest opinion by Elliott Young:
On April 14, a federal magistrate judge in Portland, Janice M. Stewart, ruled that Clackamas County violated Miranda Olivares’ Fourth Amendment rights protecting against “unreasonable searches and seizures.” Olivares was kept in jail based on an Immigration and Customs Enforcement (ICE) detainer for two weeks.
Within days, sheriffs across Oregon (18 at last count) have declared that they will no longer comply with ICE detainer requests. As Sheriff Gary Bettencourt, president of the Oregon State Sheriff’s Association, said, “We will no longer violate anybody’s constitutional rights, I can guarantee that.” This is good news for Olivares and the rest of us.
WaPo: Just another day in the drug war by Radley Balko
Back in 2011, police in Framingham, Massachusetts conducted a drug raid that cost an innocent man his life.
NYTimes: News Analysis: In Surveillance Debate, White House Turns Its Focus to Silicon Valley by David E. Sanger:
Nearly a year after the first disclosures about the National Security Agency’s surveillance practices at home and abroad, the agency is emerging with mandates to make only modest changes: some new limits on what kind of data about Americans it can hold, and White House oversight of which foreign leaders’ cellphones it can tap and when it can conduct cyberoperations against adversaries.
Plaintiff’s fifth amended complaint necessarily implies the invalidity of his conviction and it’s barred by Heck v. Humphrey. Ollie v. Brown, 2014 U.S. App. LEXIS 8302 (3d Cir. May 2, 2014).
Defendant’s guilty plea waived any claim that the consent search of his bedroom was premised on immunity from the New Orleans Police Department if he consented. United States v. Harris, 2014 U.S. Dist. LEXIS 60059 (E.D. La. April 29, 2014).*
Defendant claimed that the Fire Marshal illegally handled his boots before the arrest. That couldn’t have happened because defendant was wearing them when he was arrested. The sole print matched up with an arson scene. State v. Rodriguez, 2014 Del. Super. LEXIS 210 (April 14, 2014).*
A Baton Rouge police employee was justifiably terminated for telling a friend by text message when he was pulled over “Do not let them search.” Officers at the scene saw the message on the phone and it was usable in the termination hearing for conduct unbecoming. She was also associating with a known felon in violation of department policy. Moore v. City of Baton Rouge, 2014 La. App. LEXIS 1135 (La.App. 1 Cir. May 2, 2014).*
Officers could perform a search incident of defendant’s vehicle because a shot was fired from it in flight. This was not a violation of Gant. The search could also be justified by inventory. Hinchey v. Commonwealth, 2014 Ky. App. LEXIS 70 (May 2, 2014).*
The fact the county name on a license plate was covered up is justification for a stop under Iowa law. State v. Harrison, 2014 Iowa Sup. LEXIS 47 (May 2, 2014).*
Defendant was in the middle of three vehicles driving together. The front vehicle had its headlights off at 1 am. The officer pulled in behind and turned on his lights. The back vehicle pulled over, but the officer didn’t stop. The two stopped together, and the officer pulled behind defendant so his back wouldn’t be on anybody. He asked defendant for his ID and papers, and it was all without reasonable suspicion. Defendant didn’t do anything to justify producing his papers. State v. Reiss, 2014 Kan. LEXIS 183 (May 2, 2014).*
Defendant argued the search of her bedroom was without consent, therefore invalid. The trial court found probable cause and sustained the search. Reversed: Without an exception to the warrant requirement, the search was invalid, and the state argues none. State v. Groling, 262 Or. App. __, 2014 Ore. App. LEXIS 614 (April 30, 2014).
Officers had probable cause to stop and search defendant’s car, including a brown pouch found inside. They had information about the pouch already, but they didn’t expect to find it in the car when it was stopped. But they did, and that’s good enough for the automobile exception. United States v. Mapuatuli, 2014 U.S. Dist. LEXIS 61299 (D. Haw. May 2, 2014).*
Fleeing a traffic stop at high speeds and finally bailing out of the car and running away carrying a bag is reasonable suspicion. United States v. Williams, 2014 U.S. Dist. LEXIS 61358 (M.D. Fla. April 3, 2014).*
A white man coming from an African-American neighborhood, profiling him as a drug buyer, was a pretextual stop based on pattern of activity rather than particularized suspicion. His stop violated the Fourth Amendment. Williams v. State, 2014 Ga. App. LEXIS 307 (April 30, 2014):
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The police here were held liable in a § 1983 case in state court for overseizure beyond the scope of the search warrant. They brought along the alleged victim who told them what else to seize and none of it qualified under “plain view.” The fact that the officers got advice from a county attorney, “a part of the prosecution team,” before the overseizure didn’t give them qualified immunity. Debower v. County of Bremer, 2014 Iowa App. LEXIS 509 (April 30, 2014):
This case involves various liability issues arising from the execution of a search warrant and subsequent immediate release of the seized property to the alleged victim. The defendants—Bremer County, Duane Hildebrandt, and Dennis Miller—appeal from the jury verdicts entered in favor of Mark DeBower in this 42 U.S.C. § 1983 and state law conversion action. DeBower cross-appeals from the court’s post-trial rulings. For the reasons that follow, we affirm on both appeals and assess $10,000 in attorney fees against the defendants.
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Defendant had a rental car one month past its three day rental period, and it had been reported stolen. He had no standing or reasonable expectation of privacy in the car. United States v. Brown, 2014 U.S. Dist. LEXIS 59747 (D. Ore. April 30, 2014).
The drug dog officer testified to the dog’s certification, so it wasn’t necessary to produce the logs. Defendant’s search after the dog alert produced 30 credit cards, some of which proved to be reprogrammed. His guilty plea waived any issue with the search warrant for a computer found in the vehicle. United States v. Burrows, 2014 U.S. App. LEXIS 8226 (11th Cir. May 1, 2014).*
“We conclude the court properly found, ‘The Defendant cannot maintain a reasonable expectation of privacy in garbage that has been set out to be picked up by a public agency and is thereafter available for public scrutiny at that point.’” Even if defendant’s old convictions in the search warrant affidavit were considered stale and not considered, probable cause remains on the rest. State v. May, 2014 Iowa App. LEXIS 475 (April 30, 2014).
Wired: Cops Must Swear Silence to Access Vehicle Tracking System by Kim Zetter:
Vigilant Solutions, founded in 2009, claims to have the nation’s largest repository of license-plate images with nearly 2 billion records stored in its National Vehicle Location Service (NVLS). Despite the enormous implications of the database for the public, any law enforcement agency that signs up for the service is sworn to a vow of silence by the company’s terms of service.
WaPo: Volokh: Woman jailed two weeks for recording Chicago P.D.’s internal affairs officers can sue for a Fourth Amendment violation by Eugene Volokh:
From Moore v. City of Chicago (N.D. Ill. Apr. 28, 2014) — it’s a long excerpt, but it’s hard for a summary to do justice to the allegations (and the uncontested facts). Cases like this make me enthusiastic about Glenn Reynolds’s and John Steakley’s argument for “A Due Process Right to Record the Police”, though I think there’s a First Amendment right to do so, too. Have a look, and you’ll see what I mean (some paragraph breaks added, emphasis added) …
. . .
Why? Because ‘A reasonable jury could … find that … the officers took a substantial step toward thwarting a criminal investigation,’ and thus themselves committed a crime.
Business Insider: Liberal Supreme Court Justice Comes To The Defense Of Scalia by Corey Aawar
Liberal U.S. Supreme Court Justice Ruth Bader Ginsburg made some surprisingly positive comments about fellow Justice Antonin Scalia during a recent Wall Street Journal interview.
When asked about polarization between justices, Ginsburg said that liberals who criticize the conservative Scalia forget that he “is one of the most pro-Fourth Amendment judges on the court.” The Fourth Amendment protects U.S. citizens from unreasonable searches and seizures. Here is an excerpt from that interview:
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WaPo: Apple, Facebook, others defy authorities, notify users of secret data demands by Craig Timberg:
Major U.S. technology companies have largely ended the practice of quietly complying with investigators’ demands for e-mail records and other online data, saying that users have a right to know in advance when their information is targeted for government seizure.
SCOTUSBlog: Commentary: From the bench to the podium by Lyle Denniston:
In ways large and small, the idealized expectation that the Supreme Court will stay outside the political arena continues to diminish in a country with polarized partisanship and fragmented cultural values. One reason is that those on opposite sides of the divide increasingly seek to use the Court to advance their own agendas – and, increasingly, succeed at it.
No-knock and nighttime search warrant to gather DNA from person is excessive and suppressed as a violation of the Fourth Amendment. It wasn’t going anywhere. A Yankees cap was left at the scene of a robbery and shooting, and the DNA on the cap matched the DNA on defendant’s cell phone, also left at the scene. People v. Walker, 2014 NY Slip Op 2975, 2014 N.Y. App. Div. LEXIS 2907 (3d Dept. May 1, 2014):
The DNA evidence taken from defendant in April 2010 via a no-knock search warrant issued without notice to him when he was a suspect should have been suppressed. “[A] search warrant authorizing an intrusion into the human body for the purpose of obtaining corporeal evidence, such as bodily fluids for DNA analysis, is subject to the constraints of the Fourth Amendment” (People v Fomby, 103 AD3d 28, 29 [2012], lv denied 21 NY3d 1015 [2013]; see People v Smith, 95 AD3d 21, 24 [2012]). The guidelines for obtaining a search warrant for corporeal evidence are well established (see Matter of Abe A., 56 NY2d 288, 291 [1982]; People v Oliver, 92 AD3d 900, 901 [2012], lv denied 19 NY3d 965 [2012]; People v Pryor, 14 AD3d 723, 725 [2005], lvs denied 6 NY3d 779 [2006]; People v King, 232 AD2d 111, 116 [1997], lv denied 91 NY2d 875 [1997]). Significantly, where “there is ‘no exigency, … [then] frustration of the purpose of the application is not at risk’ and, in that case, ‘it is an elementary tenet of due process that the target of the application be afforded the opportunity to be heard in opposition before his or her constitutional right to be left alone may be infringed'” (People v Fomby, 103 AD3d at 30, quoting Matter of Abe A., 56 NY2d at 296; see People v Smith, 95 AD3d at 25; see also Matter of Ford v Vaughan, 196 AD2d 869, 869 [1993]).
