Search warrant's descriptive phrase "representing the possible exploitation of children" was unconstitutionally overbroad. Also, the good faith exception will not save this warrant. United States v. Tracey, 2008 U.S. Dist. LEXIS 49741 (M.D. Pa. June 30, 2008):

Chief Holler did use language of incorporation but, as noted by Defendant, he incorporated the vague language of the warrant description, describing items to be seized as those "representing the possible exploitation of children," into the affidavit, rather than incorporating into the warrant the possibly limiting language of the affidavit, which referred to the statutory section that was allegedly violated. This was not some clerical error. The point of incorporation by reference is that the warrant becomes limited by incorporation into it of the affidavit's language. That does not happen when the vague language of the warrant is incorporated into the affidavit instead.

We therefore agree with Defendant that we deal here with a general warrant. A warrant that authorizes a search for items "representing the possible exploitation of children" is one that allows a general "rummaging" through the belongings of the defendant, Christine, supra, 687 F.2d at 752, and hence any evidence seized pursuant to that warrant must be suppressed. Id. at 758.

The government argues that the good faith exception to the exclusionary rule allows admission of the evidence seized under the authority of the warrant. In support, it contends that any error Chief Holler made was because of the way the one-page form was drafted. The Chief simply complied with the form, checking the boxes where indicated. Thus, any error in failing to incorporate the affidavit into the warrant would have been the result of the form, which the government characterizes as a clerical one that can be ignored.

We disagree. The Fourth Amendment requires a particular description of the items to be seized. In any event, the form itself instructs the drafting officer "to be as specific as possible" in describing the items, so the form cannot be the cause of the drafting error. In addition, Chief Holler was aware that he was not confined by the options supplied by the form. He actually used incorporation language, albeit opposite the way he should have.

Under the good faith exception to the exclusionary rule, "suppression of evidence 'is inappropriate when an officer executes a search in objectively reasonable reliance on a warrant's authority.'" Ninety-two Thousand, supra, 307 F.3d at 145 (quoting United States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993)). The test is "'whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.'" Id. at 145-46 (quoted case omitted). The warrant here, as it relies on a description of items involving the "exploitation of children," fails this test. This language is so facially defective that no reasonable police officer should have relied on it. Id. at 146 (among other situations in which the good faith exception does not apply is when the warrant "was so facially deficient that it failed to particularize the place to be searched or the things to be seized") (quoted case omitted).

The N.D. Cal. held Wednesday (see NYTimes.com) that FISA is the exclusive means for wiretapping Americans, and the President has no plenary authority over spying on Americans in the name of national security. In Re: National Security Agency Telecommunications Records Litigation (Al-Haramain Islamic Foundation, Inc v. Bush), MDL Docket No 06-1791 (N.D. Cal. July 2, 2008):

For the reasons stated herein, the court has determined that: (1) FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes and would appear to displace the state secrets privilege for purposes of plaintiffs’ claims; and (2) FISA nonetheless does not appear to provide plaintiffs a viable remedy unless they can show that they are “aggrieved persons” within the meaning of FISA. The lack of precedents interpreting the remedial provisions of FISA, the failure of the parties to consider the import of FISA preemption and the undeveloped factual record in this case warrant allowing plaintiffs to attempt to make that showing and, therefore, support dismissal of the FISA claim with leave to amend.

. . .

In the case of FISA, Congress attempted not only to put a stop to warrantless wiretapping by the executive branch but also to establish checks and balances involving other branches of government in anticipation of efforts by future administrations to undertake warrantless surveillance in some other manner:

In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties. This committee is well aware of the substantial safeguards respecting foreign intelligence electronic surveillance currently embodied in classified Attorney General procedures, but this committee is also aware that over the past thirty years there have been significant changes in internal executive branch procedures, and there is ample precedent for later administrations or even the same administration loosening previous standards.

H R Rep No 95-1283(I) at 21. Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near total control over whether the fact of unlawful surveillance could be protected as a secret.

Reynolds itself, holding that the state secrets privilege is part of the federal common law, leaves little room for defendants’ argument that the state secrets privilege is actually rooted in the constitution. Reynolds stated that the state secrets privilege was “well-established in the law of evidence.” 345 US at 6-7. At the time, Congress had not yet approved the Federal Rules of Evidence, and therefore the only “law of evidence” to apply in federal court was an amalgam of common law, local practice a statutory provisions with indefinite contours. John Henry Wigmore (revised by Peter Tillers), I Evidence §6.1 at 384-85 (Little, Brown & Co 1983). The Court declined to address the constitutional question whether Congress could limit executive branch authority to withhold sensitive documents, but merely interpreted and applied federal common law. See Reynolds, 345 US at 6 & n9.

Defendants’ attempt to establish a strict dichotomy between federal common law and constitutional interpretation is, moreover, misconceived because all rules of federal common law have some grounding in the Constitution. “Federal common law implements the federal Constitution and statutes, and is conditioned by them. Within these limits, federal courts are free to apply the traditional common-law technique of decision and to draw upon all the sources of the common law in cases such as the present.” D’Oench, Duhme & Co v FDIC, 315 US 447, 472 (1942) (Jackson concurring). ...

In the specific context of the state secrets privilege, it would be unremarkable for the privilege to have a constitutional “core” or constitutional “overtones.” See Robert M Chesney, State Secrets and the Limits of National Security Litigation, 75 George Wash L Rev 1249, 1309-10 (2007). Article II might be nothing more than the source of federal policy that courts look to when applying the common law state secrets privilege. But constitutionally inspired deference to the executive branch is not the same as constitutional law.

Code enforcement officers did not violate the Fourth Amendment by entering defendant's apartment building property to investigate claims that electrical meters had been bypassed in a way that was dangerous to anybody coming near it. They also have qualified immunity. Lease v. Tyler, 2008 U.S. Dist. LEXIS 49743 (M.D. Pa. June 30, 2008).*

A Toledo Municipal Ordinance requiring convenience stores to make surveillance videos of the activity inside of stores went too far under the Fourth Amendment because the videotaping included when the stores were closed and production of the videotape for the police was required without cause. The ordinance appears to impose unconstitutional conducts, so plaintiffs have shown a likelihood of success on the merits. The purpose of the ordinance to record potential crime was valid, but production of the tapes was not for periodic inspections was not. Midwest Retailer Associated v. City of Toledo, 2008 U.S. Dist. LEXIS 49935 (N.D. Ohio June 30, 2008).*

Defendant's car was blocked in by police officers, so he was not free to leave. United States v. Corvera-Leal, 2008 U.S. Dist. LEXIS 50078 (D. Utah July 1, 2008).*

USMS acted reasonably in mistaking plaintiff for the person they wanted at the address where he was found. El Bey v. Roop, 2008 U.S. App. LEXIS 13776, 2008 FED App. 0234P (6th Cir. July 1, 2008):

We conclude, based on this evidence, that the officers on the scene did not act unreasonably in mistaking El Bey for Ray when El Bey answered their knock on the door. The officers actions, as alleged by El Bey, leave little doubt that they could have acted with more care in determining whether the person who answered the door was actually the subject of the arrest warrant. Nevertheless, we conclude that the officers--who already had reason to believe that Ray would be at 1580 Greenlake Drive--formed a reasonable, albeit mistaken, belief that El Bey was the subject of the arrest warrant in question.

Even after viewing the facts in the light most favorable to El Bey, the officers were therefore justified in entering the residence to execute the arrest warrant, and they did not violate El Bey's constitutional rights when they handcuffed him until they could determine whether or not he was the subject of the valid warrant that they possessed. See Hill v. California, 401 U.S. 797, 802, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971) (concluding that the officers acted reasonably in arresting a person who was in the apartment and fit the general description of a suspect for whom they had probable cause to arrest, and affirming the principle that "[w]hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest" (alteration in original) (internal quotation marks omitted)). The officers are therefore entitled to qualified immunity on this claim. See Saucier, 533 U.S. at 201 ("If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.").

Defendant's arrest in his residence driveway for DUI did not violate the Fourth Amendment because it was not curtilage. His "No Trespassing" sign did not make it curtilage. State v. Kolb, 2008 Ohio 3265, 2008 Ohio App. LEXIS 2766 (6th Dist. June 30, 2008).*

The police could search sweatpants handed to them to give to an arrested person when he was arrested outside his house. [Here it was treated as an abandonment, but it is a demonstrable showing of no reasonable expectation of privacy.] People v. Henry, 2008 N.Y. Misc. LEXIS 3741, 239 N.Y.L.J. 116 (Nassau Co. April 25, 2008).*

Informants provided detailed information about the defendants' taping drugs to their genitals for transport, and the defendants consented to a search of their car and a strip search that produced them. State v. Hillman, 2008 Ohio 3204, 2008 Ohio App. LEXIS 2739 (9th Dist. June 30, 2008).*

Asking for consent while the defendant was still seated in the patrol car, just as paperwork was returned was not consent. People v. Bernstein, 2008 Ill. App. LEXIS 637 (June 26, 2008):

The circumstances in the case at bar establish that Blanks began questioning Bernstein at the same time he returned Bernstein's documents and the warning citation. The trial court determined that the traffic stop concluded when Blanks gave Bernstein back his documents and the warning citation. We disagree. We do not consider Blanks' superficial termination of the traffic stop to have concluded it. Blanks returned the documents and immediately began posing questions to Bernstein. Blanks inserted his request to ask more questions in the "seamless transition between mandatory and 'consensual' interaction." People v. LaPoint, 353 Ill. App. 3d 328, 333, 818 N.E.2d 865, 869, 288 Ill. Dec. 930 (2004). There was an insufficient passage of time or a perceivable shift in Blanks' authoritative stance such that a reasonable person in Bernstein's position would have recognized that the traffic stop had ended and a consensual encounter begun. ...

Trial court erroneous ended the proof on the motion to suppress before all the proof was in. Both sides had an opportunity to make their cases. The trial court erroneously believed that the U.S. Marshal's Service did not have jurisdiction to make an arrest, but it did. State v. Aikens, 2008 N.J. Super. LEXIS 142 (June 30, 2008).*

Commentary: How dare they rip the Fourth Amendment?, by Joseph L. Galloway in McClatchy Newspapers, on the coming FISA bill:

Early next week the U.S. Senate will vote on an extension of the Foreign Intelligence Surveillance Act, with a few small amendments intended to immunize telecommunications corporations that assisted our government in the warrantless and illegal wiretapping it has grown to love.

That such a gutting of the Fourth Amendment to the Constitution even made it out of committee is yet another stain on the gutless and seemingly powerless Democratic majority in both houses of Congress.

That a majority on both sides of the aisle — not least of them the presumptive nominees for president of both political parties — intend to vote for such a violation of Americans' right to privacy and of the sanctity of their personal communications is a stunning surrender to those who want us to live in fear forever.

We are living in a time when the right of habeas corpus — which simply put is your right to be brought before a proper court of law where the government is made to prove that there is good and legal reason to detain you — recently survived by a margin of only one vote at the U.S. Supreme Court.

Now these bad actors are prepared to set aside your right to privacy — written into the Constitution as a key part of our Bill of Rights — with hardly a nod in the direction of the true patriots who rebelled against an English king and his army to guarantee those rights.

That they will do this while the last empty phrases of the political windbags at the Fourth of July celebrations are still echoing across a thousand city parks and the bright red, white and blue bunting and blizzard of American flags still flap in the breeze is little short of breath-taking.

How dare they?

This is just the first fourth of the article.