Defendant was arrested for disorderly for a “loud altercation” with somebody who ordered him off his property. The officer was justified asking for consent for a patdown for weapons. State v. Gant, 2010 Ore. App. LEXIS 1009 (September 1, 2010).*

Defendant juvenile’s mother and stepfather consented to the search of his bedroom. The consent was truly voluntary despite the threat to get a search warrant, which was not baseless because the officers had probable cause. State v. Reed, 2010 Tenn. Crim. App. LEXIS 715 (August 31, 2010).*

Indian casino security officer was invited into the hotel room by the by registered guest, and that was a valid entry. United States v. Walker, 2010 U.S. Dist. LEXIS 92244 (D.S.D. August 17, 2010).*

Defendant was stopped for reckless driving in a National Forest for cutting donuts with his car in the snow. The officer smelled burnt marijuana while standing at the car window, and that justified the search of the car. United States v. Chelgren, 2010 U.S. Dist. LEXIS 91818 (E.D. Cal. August 9, 2010).*

Officers had an arrest warrant for a man at the defendant’s location, and he let them in, even though he claimed not to live there. The warrant was valid under Steagald, and this case was similar to Conception. defendant’s constructive possession was shown. Commonwealth v. Muniz, 2010 PA Super 160, 2010 Pa. Super. LEXIS 2630 (September 3, 2010).*

Maryland applies Gant good faith to a search that was valid at the time it happened but not now. The stop was based on a DMV return showing that the vehicle was not properly registered, and it was not up to the state to prove that the underlying record was correct [all in the context of whether the exclusionary rule should apply]. McCain v. State, 2010 Md. App. LEXIS 125 (September 3, 2010).*

Where dispatch reports that the vehicle was not properly registered the state of its LP, a stop is justified. Defendants then consented. United States v. Collier, 2010 U.S. Dist. LEXIS 92418 (W.D. Ark. August 9, 2010).*

Defendant had no standing in a desk at work where there was no real control over who had access to it, distinguishing Mancusi and O’Connor. United States v. Asad, 2010 U.S. Dist. LEXIS 92096 (C.D. Ill. September 3, 2010):

The cases cited by Qattoum to support his standing to challenge the search hold only that an employee of a business can have a reasonable expectation of privacy under some circumstances. See O’Connor, 480 U.S. at 718-19, 726-28 (doctor had reasonable expectation of privacy in his desk and file cabinets which were located in his private office; however, question remained whether search by employer was reasonable); Mancusi, 392 U.S. at 368-69 (union official had standing to challenge seizure of records where he had custody of papers at the moment of their seizure and papers were located in private office he shared with other union officers). In this case, this court concludes that Qattoum has not established that he had a legitimate expectation of privacy in the area searched.

This court concludes that Qattoum did not show that he had an actual or subjective expectation of privacy in the area which was searched. The documents seized were located in an unlocked desk in an office area which did not have a door and through which all employees of the store had to go to reach the rest room. While Qattoum has argued that only three employees were working in the back area of the store at the time of the search, no evidence was presented about the number of employees employed by Price Rite who would have had access to the office area and the documents in the unlocked desk. In any case, at least three employees besides Qattoum had access to the area where the unlocked desk was located, as well as Abdallah, the owner of Price Rite. This court additionally notes that Qattoum presented no evidence that he made any efforts to conceal and keep private the documents which were the subject of the search. As noted, the desk was not locked and was located in an open area accessible to Abdallah and the other employees. Qattoum therefore cannot challenge the search and his Motion to Suppress (#76) is DENIED.

The Third Circuit today held that the government need not always show probable cause for a tracking order of a cell phone, but because cell phones provide detailed location, the USMJ can require the government to show probable cause for that information. The case is remanded to the USMJ for further fact finding. This was based on an ex parte application of the government, and EFF participated in the case as amicus, and their brief was important to the decision. In the Matter of the Application Of the United States of America For an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 08-4227 (3d Cir. September 7, 2010):

The Government vigorously objects to treating CSLI from cell phone calls as information from a tracking device. It explains that cellular calls are wire communications, that tracking devices are excluded from the definition of electronic communications but not from the definition of wire communications, and that, in any event, it hasn’t sought records from a tracking device in this case. Section 2510(1) defines “wire communication” as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) ....” 18 U.S.C. § 2510(1). The CSLI requested by the Government consists of records of information collected by cell towers when a subscriber makes a cellular phone call. That historical record is derived from a “wire communication” and does not itself comprise a separate “electronic communication.” Thus, even if the record of a cell phone call does indicate generally where a cell phone was used when a call was made, so that the resulting CSLI was information from a tracking device, that is irrelevant here because the CSLI derives from a “wire communication” and not an “electronic communication.” See id. § 2703(c) (providing that the Government may require “a provider of electronic communication service” to disclose records); id. § 2510(15) (defining “electronic communication service” to include providers of “wire or electronic communications”) (emphasis added).

. . .

We cannot reject the hypothesis that CSLI may, under certain circumstances, be used to approximate the past location of a person. If it can be used to allow the inference of present, or even future, location, in this respect CSLI may resemble a tracking device which provides information as to the actual whereabouts of the subject. The Knotts/Karo opinions make clear that the privacy interests at issue are confined to the interior of the home. There is no evidence in this record that historical CSLI, even when focused on cell phones that are equipped with GPS, extends to that realm. We therefore cannot accept the MJ’s conclusion that CSLI by definition should be considered information from a tracking device that, for that reason, requires probable cause for its production.

In sum, we hold that CSLI from cell phone calls is obtainable under a § 2703(d) order and that such an order does not require the traditional probable cause determination. Instead, the standard is governed by the text of § 2703(d), i.e., “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). The MJ erred in allowing her impressions of the general expectation of privacy of citizens to transform that standard into anything else. We also conclude that this standard is a lesser one than probable cause, a conclusion that, as discussed below, is supported by the legislative history.

. . .

A cell phone customer has not “voluntarily” shared his location information with a cellular provider in any meaningful way. As the EFF notes, it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information. Therefore, “[w]hen a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the user that making that call will also locate the caller; when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.” EFF Br. at 21.

The EFF has called to our attention an FCC order requiring cell phone carriers to have, by 2012, the ability to locate phones within 100 meters of 67% of calls and 300 meters for 95% of calls for “network based” calls, and to be able to locate phones within 50 meters of 67% of calls and 150 meters of 95% of calls for “hand-set” based calls. EFF Br. at 12 n.5 (citing 47 C.F.R. § 20.18(h)(1)(2008)). The record does not demonstrate whether this can be accomplished with present technology, and we cannot predict the capabilities of future technology. See Kyllo v. United States, 533 U.S. 27, 36 (2001) (“While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.”); see also id. (“the novel proposition that inference insulates a search is blatantly contrary to [Karo], where the police ‘inferred’ from the activation of a beeper that a certain can of ether was in the home.”).

. . .

Similar reasoning lay behind the MJ’s refusal to grant a § 2703(d) order. In the issue before us, which is whether the MJ may require a warrant with its underlying probable cause standard before issuing a § 2703(d) order, we are stymied by the failure of Congress to make its intention clear. A review of the statutory language suggests that the Government can proceed to obtain records pertaining to a subscriber by several routes, one being a warrant with its underlying requirement of probable cause, and the second being an order under § 2703(d). There is an inherent contradiction in the statute or at least an underlying omission. A warrant requires probable cause, but there is no such explicit requirement for securing a § 2703(d) order. We respectfully suggest that if Congress intended to circumscribe the discretion it gave to magistrates under § 2703(d) then Congress, as the representative of the people, would have so provided. Congress would, of course, be aware that such a statute mandating the issuance of a § 2703(d) order without requiring probable cause and based only on the Government’s word may evoke protests by cell phone users concerned about their privacy. The considerations for and against such a requirement would be for Congress to balance. A court is not the appropriate forum for such balancing, and we decline to take a step as to which Congress is silent.

Because the statute as presently written gives the MJ the option to require a warrant showing probable cause, we are unwilling to remove that option although it is an option to be used sparingly because Congress also included the option of a § 2703(d) order. However, should the MJ conclude that a warrant is required rather than a § 2703(d) order, on remand it is imperative that the MJ make fact findings and give a full explanation that balances the Government’s need (not merely desire) for the information with the privacy interests of cell phone users.

We again note that although the Government argues that it need not offer more than “specific and articulable facts showing that there are reasonable grounds to believe that the ... information sought … [is] relevant and material to an ongoing criminal investigation,” 18 U.S.C. § 2703(d), the MJ never analyzed whether the Government made such a showing. We leave that issue for the MJ on remand.

EFF story here, NLJ here, CNET here.

The Virginia Court of Appeals today upheld GPS tracking of a suspected serial rapist's car against a Fourth Amendment and a state constitutional challenge. Merely placing the GPS device on the defendant's truck bumper in a public place was not a seizure and neither was monitoring it. Foltz v. Commonwealth, 2010 Va. App. LEXIS 359 (Va. App. September 7, 2010):

The GPS system did not take pictures nor allow the police to hear any conversations. It could not track particularly well “in a covered parking area,” but could provide general information in any place with cell phone service and could send a signal through glass and plastic. The system archived the information that it collected, but the police could also track the GPS device in real time.

The police had no policy regarding the use of GPS devices, in part because the devices were not used particularly often. The police did not predetermine how long they would track appellant. The police also did not develop a policy to avoid following the van into private areas.

. . .

The police did not examine any data from the GPS until the afternoon of February 5, 2008, when they observed, in real time via a computer screen with a map, that the van was driven in and out of various neighborhoods. This pattern of driving concerned the officers, who characterized the pattern as hunting behavior. The officers watched the data stream for about 30 to 40 minutes – as the van was driving around.

On the evening of February 5, 2008, another sexual assault occurred. The police checked the GPS log to determine if appellant’s work van was in the area at the time of the attack. They discovered that the van was parked about a block or two away from the scene of the attack at the time it occurred. The police decided to follow appellant themselves on February 6, 2008, the next day.

While actually following appellant on February 6, 2008, the police observed him park his vehicle,4 get out, and put on a jacket and gloves. Two officers then followed appellant on foot. They observed him run, grab a woman who was walking down the street, and knock her to the ground. Appellant then pulled his victim under a tree, pinned her down, and tried to unbutton her pants. The police stopped the assault and arrested appellant.

. . .

In the case before this Court, as in McIver [9th Cir. 1999] and Garcia [9th Cir. 2007], the installation of the GPS device in no way interfered with appellant’s ability to operate the vehicle. The police did not damage the van by installing the GPS device in the bumper. No private information was exposed by the act of simply installing the device. In addition, as noted supra, appellant’s possessory interest in the vehicle was limited, as the van belonged to his employer, not to him. We, therefore, conclude that any interference with appellant’s limited possessory interest in the van was not a “‘meaningful interference’” by the police. Karo, 468 U.S. at 712. Thus, the installation in this case did not constitute a seizure for Fourth Amendment purposes.

. . .

Appellant claims that he manifested a subjective expectation of privacy with his “hunting” behavior, i.e., by driving around in the van looking for victims. While we believe that appellant wanted this behavior to remain undetected, this “hunting” behavior on the public streets did not indicate a subjective expectation of privacy. See Class, 475 U.S. at 114.

The police tracked appellant as he drove a van that was emblazoned with his employer’s logo, which helped advertise the company’s name to people who observed the van going by them on the public streets. The van itself, therefore, suggested that people would observe its movements. Appellant did nothing to minimize the visibility of the logo or the van in general. In addition, nothing in this record suggests that appellant attempted to hide the movement of the van or “sneak” it down the road. He did nothing to prevent people from observing him as he drove on the public streets. In fact, the officers described his “hunting” behavior as driving slowly through the same areas, repeating a pattern – actually making it easier rather than harder for someone to observe the van’s movements. This kind of behavior does not indicate that appellant actually attempted to prevent people from observing his actions. Compare Katz v. United States, 389 U.S. 347, 352 (1967) (explaining that when an individual enters a phone booth, closes the door, and pays to make a call, the individual has evidenced an expectation that his conversation will not be heard by an “uninvited ear”). Appellant did not exhibit a subjective expectation of privacy while he was driving the work van down public streets.

Bad cases make bad law. The court's description of this guys behavior that warranted them following him is really creepy. But, all defense lawyers have represented creepy people before. My friend John Zweiling's office was on the brief.

NACDL and ACLU sue of suspicionless laptop searches at the border. See the Press Release on NACDL's website; ACLU's is here. See also articles in the Washington Post and The Hill.

On the Secrecy News blog: FISA Court Proposes New Court Rules, with many links to rules:

The Foreign Intelligence Surveillance Court has proposed new rules to comply with the provisions of the FISA Amendments Act of 2008. The Court reviews government applications for intelligence surveillance and physical search under the Foreign Intelligence Surveillance Act (FISA).

The proposed FISA Court rules (pdf) provide new procedures by which telecommunications companies can petition the Court to modify or dismiss a court order or a directive from the Attorney General or the DNI requiring them to assist in electronic surveillance, to provide “any tangible thing,” or to adhere to a nondisclosure requirement concerning intelligence surveillance. Meanwhile, other procedures would permit the government to petition the Court to compel cooperation by a non-compliant telecommunications provider. A new section in the proposed FISA Court rules accordingly addresses the conduct of “adversarial proceedings,” a term that does not appear in the current rules (last modified in 2006).