The defendant argued that a search warrant was required for the police to send an informant in to make a buy. This was rejected. State v. Prestwich, 2007 UT App 206, 2007 Utah App. LEXIS 212 (June 14, 2007):

Defendant first argues that the trial court erred in failing to suppress evidence seized in violation of his Fourth Amendment right against unreasonable searches and seizures when a confidential informant entered Defendant's home without a search warrant. "However, the Fourth Amendment has no application to the actions of invited and authorized persons, even when, unbeknownst to the unwary, they are acting as police agents." State v. McArthur, 2000 UT App 23, P20, 996 P.2d 555 (emphasis omitted). "It is not illegal for a private individual, even if acting as a government agent, to enter another's home if he or she does so with the owner's permission." State v. Koury, 824 P.2d 474, 478 (Utah Ct. App. 1991). Here, the confidential informant initiated contact with Defendant, made arrangements to buy marijuana from Defendant, and went to Defendant's residence to conduct the purchase. The confidential informant asked Defendant if she could enter his apartment, and Defendant allowed her in the residence. Based on this evidence, we conclude that the confidential informant's entry was permissive and that the trial court did not err in ruling that the warrantless entry did not implicate the Fourth Amendment.

The defendant was ordered out of his vehicle by an officer who came upon his parked vehicle. "In the instant case, defendant was directed to exit his vehicle, subjected to a pat-down search, instructed to perform field sobriety tests and then told to sit down on the police vehicle before the officer asked him to sign the consent form authorizing a search of the interior of the vehicle. Defendant was treated as if he was not free to leave .... We note that, although not mandatory, the People did not establish that defendant was advised that he could refuse to consent to the search .... In view of the foregoing, we conclude that defendant's consent was not voluntary." People v. Keesler, 2007 NY Slip Op 27247, 16 Misc. 3d 45 (2d Dept. 2007).*

Franks hearing denied where the affidavits offered did not make it impossible for the drug deal to have gone down as the informant said it did. The affidavits were from biased witnesses who were related to the defendant. People v. Gorosteata, 374 Ill. App. 3d 203, 312 Ill. Dec. 492, 870 N.E.2d 936 (6th Dist. 2007).*

Defense counsel was not ineffective for not challenging a search that was uniformly testified to be consensual. People v. Starnes, 2007 Ill. App. LEXIS 652 (2d Dist. June 12, 2007), released for publication July 17, 2007.*

Officers showed probable cause to seize photographs of nude young boys from defendant's house based on his own admissions there would be photographs. His staleness argument was not raised in the trial court and was waived. Commonwealth v. Tiffany, 2007 PA Super 162, 926 A.2d 503 (2007).*

In the past, I have occasionally ranted in comments that some appellate courts lack common sense in their determination that a motorist is free to leave after having been pulled over. Prosecutors have argued this with some success, considering that appellate courts with their heads in the sand (or elsewhere) have bought into the argument that a detention became consensual at some point even though the police car still had its lights on and the officer was standing around. Coercion is implicit, and no reasonable person could feel free to leave. The rub comes when the motorist is told that he is free to leave and the officer reinitiates questioning. The motorist is already stopped. Is the reinitiation of questioning a part of the original detention or not? To argue that it is not is, to me anyway, pure sophistry. How can a motorist feel free to leave? At best, the officer has sent grossly conflicting signals. "You may go, but one more thing...." This is a continuation of the detention under any reasonable person's view. If this means that appellate courts that buy into the prosecution argument that it is consent are "unreasonable," so be it. They are.

Yesterday's holding in Brendlin v. California, 2007 U.S. LEXIS 7897 (June 18, 2007), previously posted here, adds weight to my argument, 2007 U.S. Lexis 7897, *16-18:

A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on "privacy and personal security" does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976). An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. Cf. Drayton, supra, at 197-199, 203-204 (finding no seizure when police officers boarded a stationary bus and asked passengers for permission to search for drugs).

It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson, 519 U.S. 408 (1997), we held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. Id., at 414-415; cf. Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that "'[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.'" Wilson, supra, at 414 (quoting Michigan v. Summers, 452 U.S. 692, 702-703 (1981)). What we have said in these opinions probably reflects a societal expectation of "'unquestioned [police] command'" at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission. Wilson, supra, at 414.

It all boils down to using the last sentence in context. So, readers, the Supreme Court has given a way to put this appellate sophistry to an end. Brendlin should be applied to attempt to direct courts to hold that a highway stop is legally coercive in its nature, since the motorist was stopped under color of law, and to argue that a person can just drive off when the officer keeps talking is just contrary to all normal human experience. The fact the officer says the motorist can go and then keeps talking tells the motorist he cannot leave. It is implicit coercion, if not explicit.

The E.D. Pa. discusses the circuit split on the question of whether a person driving a rental car rented by another has standing to contest a search of the car. The court divines that the Third Circuit would follow the totality of circumstances test and find standing. The car was reasonably impounded on the request of the owner because the owner was unaware of the defendant's permission to drive the car. United States v. Kennedy, 2007 U.S. Dist. LEXIS 43511 (E.D. Pa. June 15, 2007):

1. Defendant Has Standing to Contest the Searches of the Car

As mentioned above, to contest the legality of a search an individual must establish both a subjective expectation of privacy in the place searched and that such expectation is objectively reasonable. Carter, 525 U.S. at 88. The Third Circuit has not addressed standing in the context of rental cars driven by unauthorized drivers. In a case involving a borrowed car, however, the Third Circuit noted that "whether the driver of a car has the reasonable expectation of privacy necessary to show Fourth Amendment standing is a fact-bound question dependent on the strength of his interest in the car and the nature of his control over it; ownership is not necessary." United States v. Baker, 221 F.3d 438, 442 (3d Cir. 2000).

The circuits that have addressed the issue are split. The Fourth, Fifth, and Tenth Circuits have adopted a bright-line rule, holding that if an individual is not listed on the rental agreement, then he does not have a reasonable expectation of privacy in the rented vehicle. See United States v. Thomas, 447 F.3d 1191, 1197 (9th Cir. 2006) (collecting cases). Even an unauthorized driver who had permission from an authorized user has no legitimate expectation of privacy in the car. Despite the laudable qualities of this standard--including ease of applicability--it is a blunt instrument, particularly in an area of law that usually calls for a fact-specific analysis.

Perhaps for this reason, other circuits have decided against applying this test. For example, the Eighth and Ninth Circuits have adopted a modified bright-line rule that allows standing to unauthorized drivers who can show permission to use the car from an authorized driver. Id. (citing United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995)). Yet another approach examines the totality of the circumstances and considers a range of factors including: "(1) whether the defendant had a driver's license; (2) the relationship between the unauthorized driver and the lessee; (3) the driver's ability to present rental documents; (4) whether the driver had the lessee's permission to use the car; and (5) the driver's relationship with the rental company ...." Id. (citing United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001)).

It is an open question in the Third Circuit whether unauthorized drivers can ever establish a legitimate expectation of privacy in a rental car. The framework set forth in Baker, however, may be read as an implicit endorsement of either the modified bright-line rule or the totality of the circumstances test. In Baker, the court noted that a "fact-bound" inquiry assessing "the strength of [the driver's] interest in the car and the nature of his control over it" is necessary in determining whether someone who borrowed a car had a reasonable expectation of privacy in it. 221 F.3d at 442. Likewise, in denying standing to a passenger in a rented truck, a district court in the Western District of Pennsylvania concluded that the passenger was not an authorized driver, and, moreover, there was no evidence that he had ever driven the truck or had the authorized driver's permission to do so. United States v. Yamba, 407 F. Supp. 2d 703, 716 (W.D. Pa. 2006). The fact that the court in Yamba discussed factual matters beyond the passenger's status as an unauthorized driver suggests that it also predicted that a more nuanced test than the bright-line rule applies within the Third Circuit.

Assuming the Third Circuit would utilize either the modified bright-line rule, under which unauthorized drivers of rental cars have standing to contest a search if they have the permission of an authorized driver, or the totality of the circumstances test, the evidence here supports the conclusion that Defendant had a reasonable expectation of privacy in the Camry. Defendant had a license, an authorized driver's permission to use the car, and, according to the police, was driving it earlier that day. (Tr. at 66-67.) Therefore, Defendant has standing to contest the seizure and searches of the car.

Spending the evening to do drugs in an apartment does not give the defendant standing to challenge the search of the house. This was more like Carter than Olson. United States v. Higareda, 2007 U.S. Dist. LEXIS 43609 (S.D. Cal. June 14, 2007):

The evidence in this case establishes that the Defendant Rameriz "de facto spent the night [at the apartment] doing drugs and hanging out with his friends with the permission of a lawful resident of the apartment Co-defendant Higareda." (Doc # 37 at 3-4.) This evidence supports only the inference that Defendant Rameriz was legitimately on the premises, which is insufficient to demonstrate a legitimate expectation of privacy. See Amenta, 69 F.3d at 309. Defendant Rameriz did not live at the apartment. The evidence establishes that Defendant Rameriz was not an overnight guest at the apartment such that he had "an expectation of privacy in the home that society is prepared to recognize as reasonable." Minnesota v. Olson, 495 U.S. 91, 96-97. The evidence establishes only that Defendant Rameriz came to the apartment and remained with permission of Defendant Higareda in order to do drugs and hang out with friends, that the night passed, and that Defendant Rameriz was still there in the morning. Under these facts, Defendant Rameriz did not have a legitimate expectation of privacy in the residence of Defendant Higareda that society is prepared to recognize as reasonable.

Search incident that occurs immediately before an arrest for which there was already probable cause is valid. United States v. Thompson, 244 Fed. Appx. 926 (11th Cir. 2007)* (unpublished).

Officer's moving plaintiff out of his way by touching her arm did not constitute a seizure. "When vewing all the circumstances surrounding this incident, there is no evidence that an objective person in Plaintiff's position would have believed she was restrained, i.e., she was not free to leave. Plaintiff did not even subjectively believe she was not free to leave based on her testimony. Defendant physically moved Plaintiff out of his way, but did not give any indication that she was not free to leave. Accordingly, Plaintiff was not seized for purposes of the Fourth Amendment." McKeown v. Hairston, 2007 U.S. Dist. LEXIS 43490 (E.D. Mich. June 15, 2007).*

Defendant's dropping bag of crack and walking away from it was probable cause. United States v. Keely, 2007 U.S. Dist. LEXIS 43650 (E.D. Mo. June 15, 2007). (Comment: This is the first federal dropsy case I've seen in a long time.)

(More later: Federal appellate brief up next.)

The Sixth Circuit holds that there is a reasonable expectation of privacy in stored e-mails, and an e-mail user has standing to challenge overbroad subpoenas to ISPs for the e-mails. The case involved suit under the Stored Communications Act, 18 U.S.C. §§ 2701-12, distinguishing holders of e-mail and recipients who have already received e-mail. This is a significant case, and it extends established law about mail in transit to e-mails in transit. The District Court's preliminary injunction is affirmed as modified. Warshak v. United States, 490 F.3d 455, 2007 FED App. 0225P (6th Cir. 2007):

2. Reasonable expectation of privacy in e-mail content

Two amici curiae convincingly analogize the privacy interest that e-mail users hold in the content of their e-mails to the privacy interest in the content of telephone calls, recognized by the Supreme Court in its line of cases involving government eavesdropping on telephone conversations. See Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967). In Berger and Katz, telephone surveillance that intercepted the content of a conversation was held to constitute a search, because the caller "is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world," and therefore cannot be said to have forfeited his privacy right in the conversation. Katz, 389 U.S. at 352. This is so even though "[t]he telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or overheard by the use of other company equipment." Smith, 442 U.S. at 746 (Stewart, J., dissenting). On the other hand, in Smith, the Court ruled that the use of pen register, installed at the phone company's facility to record the numbers dialed by the telephone user, did not amount to a search. This distinction was due to the fact that "a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications." 442 U.S. at 741 (emphasis in original).

The distinction between Katz and Miller makes clear that the reasonable expectation of privacy inquiry in the context of shared communications must necessarily focus on two narrower questions than the general fact that the communication was shared with another. First, we must specifically identify the party with whom the communication is shared, as well as the parties from whom disclosure is shielded. Clearly, under Katz, the mere fact that a communication is shared with another person does not entirely erode all expectations of privacy, because otherwise eavesdropping would never amount to a search. It is true, however, that by sharing communications with someone else, the speaker or writer assumes the risk that it could be revealed to the government by that person, or obtained through a subpoena directed to that person. See Miller, 425 U.S. at 443 ("[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities."). The same does not necessarily apply, however, to an intermediary that merely has the ability to access the information sought by the government. Otherwise phone conversations would never be protected, merely because the telephone company can access them; letters would never be protected, by virtue of the Postal Service's ability to access them; the contents of shared safe deposit boxes or storage lockers would never be protected, by virtue of the bank or storage company's ability to access them.

The second necessary inquiry pertains to the precise information actually conveyed to the party through whom disclosure is sought or obtained. This distinction provides the obvious crux for the different results in Katz and Smith, because although the conduct of the telephone user in Smith "may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed." 442 U.S. at 743. Like the depositor in Miller, the caller in Smith "assumed the risk" of the phone company disclosing the records that he conveyed to it. Id. Yet this assumption of the risk is limited to the specific information conveyed to the service provider, which in the telephone context excludes the content of the conversation. It is apparent, therefore, that although the government can compel disclosure of a shared communication from the party with whom it was shared, it can only compel disclosure of the specific information to which the subject of its compulsion has been granted access. It cannot, on the other hand, bootstrap an intermediary's limited access to one part of the communication (e.g. the phone number) to allow it access to another part (the content of the conversation).

This focus on the specific information shared with the subject of compelled disclosure applies with equal force in the e-mail context. Compelled disclosure of subscriber information and related records through the ISP might not undermine the e-mail subscriber's Fourth Amendment interest under Smith, because like the information obtained through the pen register in Smith and like the bank records in Miller, subscriber information and related records are records of the service provider as well, and may likely be accessed by ISP employees in the normal course of their employment. Consequently, the user does not maintain the same expectation of privacy in them vis-a-vis the service provider, and a third party subpoena to the service provider to access information that is shared with it likely creates no Fourth Amendment problems. n3 The combined precedents of Katz and Smith, however, recognize a heightened protection for the content of the communications. Like telephone conversations, simply because the phone company or the ISP could access the content of e-mails and phone calls, the privacy expectation in the content of either is not diminished, because there is a societal expectation that the ISP or the phone company will not do so as a matter of course.n4

n4 As the Supreme Court explained in Smith, the reasonable expectation of privacy inquiry "embraces two discrete questions. The first is whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy,--whether, in the words of the Katz majority, the individual has shown that he seeks to preserve [something] as private. The second question is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable, -- whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is justifiable under the circumstances." 442 U.S. at 740 (internal citations and quotation marks omitted).

Similarly, under both Miller and Katz, if the government in this case had received the content of Warshak's e-mails by subpoenaing the person with whom Warshak was e-mailing, a Fourth Amendment challenge brought by Warshak would fail, because he would not have maintained a reasonable expectation of privacy vis-a-vis his e-mailing partners. See Phibbs, 999 F.2d at 1077. But this rationale is inapplicable where the party subpoenaed is not expected to access the content of the documents, much like the phone company in Katz. Thus, as Warshak argues, the government could not get around the privacy interest attached to a private letter by simply subpoenaing the postal service with no showing of probable cause, because unlike in Phibbs, postal workers would not be expected to read the letter in the normal course of business. See Ex Parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1878) ("No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution."). Similarly, a bank customer maintains an expectation of privacy in a safe deposit box to which the bank lacks access (as opposed to bank records, like checks or account statements) and the government could not compel disclosure of the contents of the safe deposit box only by subpoenaing the bank.

This analysis is consistent with other decisions that have addressed an individual's expectation of privacy in particular electronic communications. In Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2007), we concluded that users of electronic bulletin boards lacked an expectation of privacy in material posted on the bulletin board, as such materials were "intended for publication or public posting. "Of course the public disclosure of material to an untold number of readers distinguishes bulletin board postings from e-mails, which typically have a limited, select number of recipients. See also Jackson, 96 U.S. at 733 ("[A] distinction is to be made between different kinds of mail matter, -- between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined."). Although we stated that an e-mail sender would "lose a legitimate expectation of privacy in an e-mail that had already reached its recipient," analogizing such an e-mailer to "a letter-writer," this diminished privacy is only relevant with respect to the recipient, as the sender has assumed the risk of disclosure by or through the recipient. Id. at 333 (citing United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995)). n6 Guest did not hold that the mere use of an intermediary such as an ISP to send and receive e-mails amounted to a waiver of a legitimate expectation of privacy.

Before getting to this question, the court had to determine what standard applied for subpoenas for e-mail. If the e-mail sender or recipient had a reasonable expectation of privacy, the government's burden to obtain them was higher:

Phibbs makes explicit, however, a necessary Fourth Amendment caveat to the rule regarding third-party subpoenas: the party challenging the subpoena has "standing to dispute [its] issuance on Fourth Amendment grounds" if he can "demonstrate that he had a legitimate expectation of privacy attaching to the records obtained." Id.; see also United States v. Miller, 425 U.S. 435, 444, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) ("Since no Fourth Amendment interests of the depositor are implicated here, this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant." (emphasis added)). This language reflects the rule that where the party challenging the disclosure has voluntarily disclosed his records to a third party, he maintains no expectation of privacy in the disclosure vis-a-vis that individual, and assumes the risk of that person disclosing (or being compelled to disclose) the shared information to the authorities. See, e.g., United States v. Jacobsen, 466 U.S. 109, 117, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) ("[W]hen an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information.").

Combining this disclosure to a third party with the government's ability to subpoena the third party alleviates any need for the third-party subpoena to meet the probable cause requirement, if the challenger has not maintained an expectation of privacy with respect to the individual being compelled to make the disclosure. For example, in Phibbs, the documents in question were credit card and phone records that were "readily accessible to employees during the normal course of business." 999 F.2d at 1078. A similar rationale was employed by the Supreme Court in Miller. 425 U.S. at 442 ("The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business."). See also SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735, 743, 104 S. Ct. 2720, 81 L. Ed. 2d 615 (1984) ("When a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities."). The government's compelled disclosure argument, while relevant, therefore begs the critical question of whether an e-mail user maintains a reasonable expectation of privacy in his e-mails vis-a-vis the party who is subject to compelled disclosure -- in this instance, the ISPs. If he does not, as in Phibbs or Miller, then the government must meet only the reasonableness standard applicable to compelled disclosures to obtain the material. If, on the other hand, the e-mail user does maintain a reasonable expectation of privacy in the content of the e-mails with respect to the ISP, then the Fourth Amendment's probable cause standard controls the e-mail seizure.

Comment: It could be said that the government came into this case having already shot itself in the foot over the abuse of NSLs and lost credibility about its admitted inability to comply with the law in collecting this type of information.