The District of Montana has held that a judge's oversight in not signing a search warrant in a child porn case, although the judge signed the application for the warrant made before the judge, voided the warrant. Also, the good faith exception could not save the search for an unsigned search warrant. United States v. Evans, 469 F. Supp. 2d 893 (D. Mont. 2007):

Judge Erickson may very well have intended to sign the search warrant at issue in this case. Nevertheless, the fact remains the warrant was not signed and there was no ten-day limit posted on its face. This Court is unwilling to accept the potential repercussions of adopting the forgiving interpretation of the Fourth Amendment urged by the government. If a reviewing court can speculate about what a magistrate intended to do, what prevents it from surmising what a magistrate would have done? Why not permit officers to come before this Court after a search has been conducted to seek admission of seized evidence on the ground that if a warrant had been presented to a magistrate before the search, the magistrate would have issued the warrant? Absent an exception, the Fourth Amendment requires a probable cause determination to be made and issued by a magistrate before officers invade a person's privacy. If the right to privacy is too precious to entrust to the discretion of officers who detect crime, it is similarly too precious to entrust to after-the-fact conjecture about a magistrate's intentions. McDonald, 335 U.S. at 455-56; see also Robinson, CR 04-32-BU-DWM, 358 F. Supp. 2d 975 at 10. Because the warrant in this case did not provide any indication that it was officially authorized, the search of Defendants' residence was warrantless in violation of the Fourth Amendment.

. . .

Even if the search of Defendants' residence was not warrantless, the Leon good faith exception does not apply. An officer's reliance on an invalid warrant (as opposed to no warrant at all) must be objectively reasonable before the government can claim the benefit of the good faith exception. Reliance on an unsigned warrant is not objectively reasonable. Groh is again instructive in this regard. After determining the warrant in Groh, which completely failed to describe the items to be seized, was unconstitutional, the Court concluded the officer's reliance on the warrant was not objectively reasonable. 540 U.S. at 563-65. The Court observed "even a cursory reading of the warrant in this case--perhaps just a simple glance--would have revealed a glaring deficiency that any reasonable police officer would have known was constitutionally fatal." Id. at 564. The Court refused to apply the Leon good faith exception under such circumstances. Id. at 565 (noting the exception does not apply when a warrant is "so facially deficient ... that the executing officers cannot reasonably presume it to be valid"). The Court also rejected the officer's argument, based on Sheppard, that he was immune from liability because any constitutional error was committed by the magistrate. The Court reasoned, the warrant in Groh was so patently defective, it was unreasonable for the officer to rely on it. Id. at 561 n.4. In so holding, the Court acknowledged officers executing a search warrant have a duty to "make sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct." Id. at 563 n.6.

Massachusetts courthouse entry search was valid, and it was treated as an administrative search. The fact he could not leave the courthouse to avoid the search did not void it. Commonwealth v. Roland R., 448 Mass. 278, 860 N.E.2d 659 (January 30, 2007).

Declining to find presumptive exigent circumstances in the need for a blood draw in an alcohol related automobile death, the Utah Supreme Court still finds exigent circumstances under the totality of the circumstances presented. State v. Rodriguez, 2007 UT 15, 156 P.3d 771, 570 Utah Adv. Rep. 55 (2007), rev'g 2004 UT App 198, 501 Utah Adv. Rep. 8, 93 P.3d 854 (2004).*

The defendant's employer found child porn on his workstation computer. While the defendant had standing, the employer was directed by the police to copy the hard drive, and they could do so because they owned the computer. United States v. Ziegler, 474 F.3d 1184 (9th Cir. January 30, 2007). As to standing:

The threshold question then is whether Ziegler had a legitimate expectation of privacy in the area searched or the object seized. If he had no such expectation, we need not consider whether the search was reasonable.

1

The government does not contest Ziegler's claim that he had a subjective expectation of privacy in his office and the computer. The use of a password on his computer and the lock on his private office door are sufficient evidence of such expectation. See United States v. Bailey, 272 F. Supp. 2d 822, 835 (D. Neb. 2003) (citation omitted).

2

But Ziegler's expectation of privacy in his office and workplace computer must also have been objectively reasonable. The seminal case addressing the reasonable expectations of private employees in the workplace is Mancusi v. DeForte, 392 U.S. 364, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968). In Mancusi, the Supreme Court addressed whether a union employee had a legitimate expectation of privacy, and therefore Fourth Amendment standing, in the contents of records that he stored in an office that he shared with several other union officials. The Court held that DeForte had standing to object to the search and that the search was unreasonable, noting that it was clear that "if DeForte had occupied a 'private' office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing." Id. at 369. That was so because he could expect that he would not be disturbed except by business or personal invitees and that the records would not be taken except with the permission of his supervisors. Id. The Court thought the fact that the office was shared with a few other individuals to be of no constitutional distinction.

Mancusi compels us to recognize that in the private employer context, employees retain at least some expectation of privacy in their offices. Id. See also Ortega v. O'Connor, 480 U.S. 709, 716, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987) (noting that in Mancusi "this Court ... recognized that employees may have a reasonable expectation of privacy against intrusions by police."); id. at 730 (Scalia, J., concurring) ("In Mancusi v. DeForte, we held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with two other employees, even though we acknowledged that those other employees, their personal or business guests, and (implicitly) 'union higher-ups' could enter the office.") (internal citations omitted).

Furthermore, Ziegler's expectation of privacy in his office was reasonable on the facts of this case. His office was not shared by co-workers, and kept locked. See Schowengerdt v. United States, 944 F.2d 483, 487 (9th Cir. 1991) ("Schowengerdt would enjoy a reasonable expectation of privacy in areas given over to his exclusive use, unless he was on notice from his [government] employer that searches of the type to which he was subjected might occur from time to time for work-related purposes."); United States v. Taketa, 923 F.2d 665, 672-73 (9th Cir. 1991). And while there was a master key, the existence of such will not necessarily defeat a reasonable expectation of privacy in an office given over for personal use. See Taketa, 923 F.2d at 673 (noting that allowing the existence of a master key to overcome the expectation of privacy would defeat the legitimate privacy interest of any hotel, office, or apartment occupant).

Because Ziegler had a reasonable expectation of privacy in his office, any search of that space and the items located therein must comply with the Fourth Amendment. n9

n9 Had the company computer assigned to Ziegler for his business-use only been physically located outside a private office, we might have had to consider whether Ziegler had reasonable expectation of privacy in the device itself, in the face of a corporate policy of monitoring the corporate computers. See Muick v. Glenayre Elecs., 280 F.3d 741, 743 (7th Cir. 2002). However, we leave that question for another day.

As to the consent to search:

IV

A

The remaining question is whether the search of Ziegler's office and the copying of his hard drive were "unreasonable" within the meaning of the Fourth Amendment. As in Mancusi, the government does not deny that the search and seizure were without a warrant, and HN5"it is settled for purposes of the Amendment that 'except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant.'" Mancusi, 392 U.S. at 370 (quoting Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967)).

One well-settled exception is where valid consent is obtained by the government. Davis v. United States, 328 U.S. 582, 593-594, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). In proving voluntary consent, the government "is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); see also United States v. Davis, 332 F.3d 1163, 1168-69 (9th Cir. 2003). Common authority to authorize a search rests upon the premise that one "[has] assumed the risk that one of [his] number might permit the common area to be searched." Matlock, 415 U.S. at 171 n. 7.

B

We first consider whether Frontline exercised common authority over the office and the workplace computer such that it could validly consent to a search. Mancusi is again instructive. In Mancusi, the Supreme Court recognized that in his office, DeForte retained an expectation "that records would not be taken [by the police] except with his permission or that of his union superiors." 392 U.S. at 369. The Court continued: "It is, of course, irrelevant that the Union or some of its officials might validly have consented to a search of the area where the records were kept, regardless of DeForte's wishes, for it is not claimed that any such consent was given, either expressly or by implication." Id. at 369-70; see also United States v. Carter, 569 F.2d 801, 804 (4th Cir. 1978), cert. denied 435 U.S. 973, 98 S. Ct. 1618, 56 L. Ed. 2d 66 (1978). Mancusi thus establishes that even where a private employee retains an expectation that his private office will not be the subject of an unreasonable government search, such interest may be subject to the possibility of an employer's consent to a search of the premises which it owns.

We are also convinced that Frontline could give valid consent to a search of the contents of the hard drive of Ziegler's workplace computer because the computer is the type of workplace property that remains within the control of the employer "even if the employee has placed personal items in [it]." Ortega, 480 U.S. at 716. In Ortega, the Supreme Court offered an analogy that is helpful to our resolution of this question. Ortega, 480 U.S. at 716. The Court posited a situation where an employee brings a piece of personal luggage to work and places it within his office. The Court noted that "[w]hile . . . the outward appearance of the luggage is affected by its presence in the workplace, the employee's expectation of privacy in the contents of the luggage is not affected in the same way." Id. (emphasis in original). The Court further explained that "[t]he appropriate standard for a workplace search does not necessarily [*19] apply to a piece of closed personal luggage, a handbag or a briefcase that happens to be within the employer's business address." Id.

The workplace computer, however, is quite different from the piece of personal luggage which the Court described in Ortega. Although use of each Frontline computer was subject to an individual log-in, Schneider and other IT-department employees "had complete administrative access to anybody's machine." The company had also installed a firewall, which, according to Schneider, is "a program that monitors Internet traffic ... from within the organization to make sure nobody is visiting any sites that might be unprofessional." Monitoring was routine, and the IT department reviewed the log created by the firewall "[o]n a regular basis," sometimes daily if Internet traffic was high enough to warrant it. Finally, upon their hiring, Frontline employees were apprised of the company's monitoring efforts through training and an employment manual, and they were told that the computers were company-owned and not to be used for activities of a personal nature.

In this context, Ziegler could not reasonably have expected that the computer was his personal property, free from any type of control by his employer. The contents of his hard drive, like the files in Mancusi, 392 U.S. at 369, were work-related items that contained business information and which were provided to, or created by, the employee in the context of the business relationship. Ziegler's downloading of personal items to the computer did not destroy the employer's common authority. Ortega, 480 U.S. at 716. Thus, Frontline, as the employer, could consent to a search of the office and the computer that it provided to Ziegler for his work.

Thus, the employer could and did consent to the search.

Overbroad business records warrant challenge failed because the government showed a prima facie case for the "permeated with fraud" doctrine that permits wholesale seizures of records. United States v. Bernardini, 2005 U.S. Dist. LEXIS 44409 (W.D. Va. October 18, 2005).*

Officers were executing an arrest warrant and they did an intensive protective sweep that even went into the crawl space of the building and evidence was found. This was not an unreasonable protective sweep. United States v. Stover, 474 F.3d 904 (6th Cir. January 30, 2007):

The inquiry therefore becomes whether the officers had "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Buie, 494 U.S. at 334. We answer this question in the affirmative. The fact that police identified a car registered to a local criminal who did not live at Defendant Hinton's address is sufficient to justify a quick and limited protective sweep. That Defendant Hinton lived in a duplex is of no moment. The local criminal who owned the car in Defendant Hinton's driveway was as likely to be visiting Defendant Hinton as he was to be visiting Defendant Hinton's neighbor. This probability is sufficient to justify a protective sweep. See United States v. Biggs, 70 F.3d 913, 916 (6th Cir. 1995) (upholding a sweep of defendant Biggs' motel room where police had received information that Biggs was meeting someone at the motel, Biggs had left the motel door open so that anyone inside could see out, and, on two previous occasions, Biggs had been arrested in the presence of persons armed with firearms).

Defendant Hinton argues, however, that because of the remoteness of the crawl space and the size of the door, the officers nevertheless exceeded their authority to conduct a protective sweep. These arguments are without merit. Under the second prong of Buie, there is no requirement that the area searched be immediately adjacent to the area where the defendant was arrested. See Buie, 494 U.S. at 334. Although discovering the crawl space where the marijuana was found required officers to go through the kitchen, an attached garage, and the laundry room, it was nevertheless a part of the premises in which a potentially dangerous individual could be found. See id. at 335. Nor is the size of the opening of the door important. It is undisputed that the crawl space could hold a person. A small, out-of-the-way space makes a good hiding place for a dangerous individual; it is implausible to think that the persons who are the object of the protective sweep would limit themselves to large, open areas where they could be easily spotted. We therefore conclude that the district court properly denied Defendant Hinton's motion to suppress.

The officer applied no physical power of arrest over the defendant by approaching him. Defendant's flight under Wardlaw only added to the reasonable suspicion that the officer already had when he approached him. United States v. Moore, 2007 U.S. Dist. LEXIS 5892 (E.D. Wis. January 26, 2007).*

Telling a traffic detainee that he was "good to go," but "can I ask a few questions" did not unreasonably prolong the stop. United States v. Meraz, 2007 U.S. Dist. LEXIS 5973 (E.D. Wis. January 26, 2007).*

School strip search that was obviously invasive but based on near probable cause was still insufficient to state a claim in the face of a qualified immunity defense and lack of development of the law. Phaneuf v. Cipriano, 2007 U.S. Dist. LEXIS 5963 (D. Conn. January 25, 2007).*

The oral argument in American Civil Liberties Union v. National Security Agency is being argued at 3 p.m. Eastern before the Sixth Circuit in Cincinnati.

The oral argument is here.

An anonymous 911 call about a home invasion robbery by two men and a woman brought the police who were able to corroborate essential details at the scene, and the corroboration was sufficient for the entry and subsequent search that led to syringes in plain view. State v. Wilson, 2007 Ohio 353, 2007 Ohio App. LEXIS 299 (12th Dist. January 29, 2007):

The caller indicated that two white men and a white female were breaking into a specific apartment, and police arrived to find evidence of a forced entry into that apartment. A white male came to the door as police were reacting to what they perceived to be a discovered forced entry. Some, and eventually all, of the statements of the anonymous caller were corroborated by police observation or investigation. Further, the evidence supported the belief by the police that the exigent circumstances continued and an additional suspect and weapon were still inside the residence.

Consent for search of defendant's home was not shown to be voluntary. Officer asked three times and defendant insisted on talking on the porch. The officer demanded to speak inside, and defendant let him, but it was not consensual. People v. Plante, 308 Ill. Dec. 856, 862 N.E.2d 1059 (3d Dist. 2007):

Defendant did not consent to Bass's third entry into the home. Defendant never told Bass that he may enter the home on his third attempt and specifically asked if they could speak outside. The State relies on defendant's "nonverbal conduct" in walking back into the home after Bass demanded to speak inside to support its theory of consent. While "'there is little authority as to what constitutes consent in the absence of an express verbal statement'" (Anthony, 198 Ill. 2d at 202, quoting People v. Henderson, 142 Ill. 2d 258, 298, 568 N.E.2d 1234, 154 Ill. Dec. 785 (1990)) the supreme court has recognized that "'mere acquiescence to apparent authority is not necessarily consent'" (Anthony, 198 Ill. 2d at 202, quoting People v. Kelly, 76 Ill. App. 3d 80, 87, 394 N.E.2d 739, 31 Ill. Dec. 537 (1979)). Bass admitted that he told defendant "I am going to talk to you inside." This is not a request. It is an evident display of "apparent authority" to which defendant merely acquiesced.

The State's repeated assertion that Bass never "yelled, screamed, *** threatened [or] touched" defendant is both unavailing and misplaced. Consent may not be "extracted 'by explicit or implicit means, by implied threat or covert force." (Emphasis added.) Anthony, 198 Ill. 2d at 202, 761 N.E.2d at 1192, quoting Bustamonte, 412 U.S. at 228, 36 L. Ed. 2d at 863, 93 S. Ct. at 2048 (1973). Bass's tactics were more than "subtly coercive." Bass at minimum implied that force would be employed to secure his final entry when he blocked defendant in the door to the residence and stated affirmatively his intent to enter in spite of defendant's request to speak outside.

Dirty license plate was not cause for a stop that led to the defendant being ordered out of the car and the officer seeing drug paraphernalia. 75% of the license plate was visible [and a computer check would verify its validity]. State v. Brooks, 2007 Ohio 344, 2007 Ohio App. LEXIS 302 (11th Dist. January 26, 2007).