Archives for: November 2011, 11

11/11/11

Permalink 01:16:03 pm, by fourth, 824 words, 3184 views   English (US)
Categories: General

E.D.Va.: No REP in IP information held by Twitter; the Wikileaks case

There is no Fourth Amendment privacy interest in IP information created by Twitter. Smith and Miller govern. In re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114 (E.D. Va. 2011):

Petitioners and amici argue that the possibility of using IP address information to “pinpoint” a person’s physical location extends to “locations in, and movements between, particular private spaces over a period of time.” Doc. 45 at 20. As the government points out, however, investigators have long been able to use other forms of information to place a caller in a particular place, such as a private home, at a particular time. The Fourth Circuit has explicitly approved the collection of non-IP subscriber information for this very purpose. See Bynum, 604 F.3d at 164 n.2. The granularity of the “pinpoint” accuracy of IP address location finding, as described in Petitioners’ brief, is hardly a function of examining IP addresses by themselves. Rather, as in the case of the commercial enterprises described by the Bellovin Brief, the granularity of the “pinpoint” information results from aggregation and correlation of IP address information with other records. Bellovin Br. at 7-8. “Pinpointing” a person’s location is even more difficult if the government must distinguish between users of “static” or “dynamic” IP addresses because “dynamic” IP addresses are not consistently used by the same computer. The Court finds nothing in Karo or other cases indicating that combining records of IP address information with other information would infringe a locational privacy interest protected by the Fourth Amendment.

. . .

Even if Petitioners had a reasonable expectation of privacy in IP address information collected by Twitter, Petitioners voluntarily relinquished any reasonable expectation of privacy under the third-party doctrine. To access Twitter, Petitioners had to disclose their IP addresses to third parties. This voluntary disclosure—built directly into the architecture of the Internet—has significant Fourth Amendment consequences under the third-party doctrine, as articulated in United States v. Miller and Smith v. Maryland.

. . .

Two consequences follow from the Court’s conclusion that Petitioners voluntarily relinquished any expectation of privacy in their IP addressing information when they chose to use the Internet to communicate with the Twitter service. First, because the Twitter Order did not invade Petitioners’ reasonable expectations of privacy, it cannot constitute a search in violation of the Fourth Amendment. See Florida v. Riley, 488 U.S. 445, 449-50 (1989); California v. Ciraolo, 476 U.S. 207, 211 (1986) (“The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’”) (quoting Katz, 389 U.S. at 360 (Harlan, J., concurring)). Therefore their Fourth Amendment challenge to the Twitter Order fails.

Second, Petitioners do not have Fourth Amendment standing to object to the Twitter Order. They have not alleged a personal injury cognizable by the Fourth Amendment, nor have they been charged with any substantive offense based on information obtained as a result of the Twitter Order. No personal injury fairly traceable to the allegedly unlawful conduct has therefore been shown. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991); cf. Karo, 468 U.S. at 721 (“Because locating the ether in the warehouse was not an illegal search—and because the ether was seen being loaded into Horton’s truck, which then traveled the public highways—it is evident that under Knotts there was no violation of the Fourth Amendment as to anyone with or without standing to complain about monitoring the beeper while it was located in Horton’s truck.”); Rawlings v. Kentucky, 448 U.S. 98, 104-05 (1980); Rakas v. Illinois, 439 U.S. 128, 148-50 (1978). Without a reasonable expectation of privacy in the subject information, therefore, Petitioners are not entitled to challenge the Twitter Order on Fourth Amendment grounds. Cf. Rakas, 439 U.S. at 149-50; Rawlings, 448 U.S. at 105-06.

. . .

The peculiar nature of electronic data is a further consideration. Electronic evidence poses an even greater danger of destruction or concealment than does traditional physical evidence. As the courts are discovering, electronic evidence can be overwritten, transferred, or expunged with little to no human effort, and if performed by a competent expert, may leave little trace that it ever existed. See, e.g., Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 214, 214 n.2 (S.D.N.Y. 2003). Surprise in the execution of a § 2703 order may therefore be even more important than speed. What the Supreme Court has said about search warrants is especially true of § 2703 orders: “The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice.” Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679 n.14 (1974) (affirming post-seizure notice and hearing in civil forfeiture action). In this respect, § 2703 orders are more like search warrants than grand jury subpoenas. Cf. In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000) (discussing practical distinctions between search warrant and grand jury subpoena).

H/T to eff.org for the link to the opinion. See Privacy Loses in Twitter/Wikileaks Records Battle.

Permalink 12:58:54 pm, by fourth, 372 words, 3058 views   English (US)
Categories: General

TN: Blue lighting a car was a stop, here without RS

Blue lights to stop a car is a seizure, here on a mere hunch and not with reasonable suspicion, and the stop is suppressed. State v. Moats, 2011 Tenn. Crim. App. LEXIS 817 (November 8, 2011):

Under the authority of [State v. Williams, 185 S.W.3d 311 (Tenn. 2006)], it is clear that Sergeant Bige seized the defendant the moment she activated her emergency lights because the use of the lights was a show of authority and a reasonable citizen would not have felt free to leave. See id. at 317. She was not performing a community caretaking function because, as she testified, there was no indication that the defendant needed assistance nor was there any other evidence that she needed to activate the lights for safety reasons. Additionally, Sergeant Bige had no reasonable suspicion of illegal activity. She testified that she thought it was strange that a truck was parked in the grocery store parking lot near 2:00 a.m. with its lights on. Essentially, she had an “inchoate and unparticularized suspicion or hunch,” which does not rise to the level of reasonable suspicion. Terry, 392 U.S. at 27. Without reasonable suspicion, her seizure of the defendant violated the constitutional prohibition against unreasonable seizures. Therefore, we conclude that the evidence does not support the trial court's findings and reverse the trial court's determination that the officer did not seize the defendant without reasonable suspicion when she activated her emergency lights.

Defendant’s car was stopped for a traffic offense, and, because of excessive tinting, the officer could not see into the back seat. A gun was in plain view sticking out from under the seat, and defendant admitted there was another gun in the car. The entry into the car was valid for officer safety. “The Court believes this course of action to be reasonable under the totality of the circumstances. Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, at 118-19, 122 S. Ct. 587, 151 L. Ed. 2d 497 (internal quotation marks omitted).” United States v. Vicente-Lucas, 826 F. Supp. 2d 422 (D. P.R. 2011).*

Permalink 12:34:41 pm, by fourth, 219 words, 2866 views   English (US)
Categories: General

D.Del.: RS based in part on another man's flight

Officers had reasonable suspicion from defendant being in a high crime area and not complying with officers’ directions and another man fled. United States v. Smullen, 2011 U.S. Dist. LEXIS 130143 (D. Del. November 9, 2011)*:

Considering this authority against the totality of the circumstances of record, the court finds that Smith's stop of defendant was supported by reasonable suspicion. In so doing, the court credits Smith's testimony and concludes it was reasonable to infer that defendant was engaged in criminal activity and posed a danger to officer safety based on: (1) defendant's evasive actions after learning that O[peration] S[afe] S[treets] officers requested entry to the residence; (2) defendant's noncompliance with OSS' request; (3) defendant's immediate exit from the back of the residence via the fire escape staircase instead of the front door; (4) defendant's stuttering and shaking when confronted on the fire escape staircase by Smith; (5) Smith was alone in the dimly lit backyard in an area fraught with crime; (6) Smith did not recognize defendant; and (7) defendant (an unidentified male to Smith) was fleeing the residence and descending steps leading to Smith.

The testimony supports the USMJ’s conclusion that the officer was credible on defendant consenting. United States v. Starling, 2011 U.S. Dist. LEXIS 130121 (N.D. W.Va. November 9, 2011), R&R 2011 U.S. Dist. LEXIS 130119 (N.D. W.Va. October 14, 2011).*

Permalink 12:22:14 pm, by fourth, 668 words, 2991 views   English (US)
Categories: General

W.D.Wash.: SW based on German report from activity 20 months earlier was a general warrant

A search warrant of defendant’s computer 20 months after a single instance of alleged downloading of child pornography based on a report from German authorities resulted in a general search in violation of the Fourth Amendment. ICE elected to use a state search warrant here to avoid Comprehensive Drug Testing. United States v. Schesso, 842 F. Supp. 2d 1292 (W.D. Wash. 2011):

Review of this search warrant is further guided by United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) and U.S. v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th 2010)(CDT III). In CDT III the Court stated that “[t]he point of the Tamura procedures is to maintain the privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search of office file systems and computer databases. If the government can’t be sure whether data may be concealed, compressed, erased or booby-trapped without carefully examining the contents of every file—and we have no cavil with this general proposition—then everything the government chooses to seize will, under this theory, automatically come into plain view.” CDT III, at 1170-71. “This would make a mockery of Tamura and render the carefully crafted safeguards in the Central District warrant a nullity.”Id., at 1171. In concluding remarks the Court in CDT III stated: ...

With these principles in mind, a review of the application for the search warrant demonstrates that it did not support probable cause for the issuance of a general warrant for the search and seizure of any electronic storage devices for evidence of child pornography crimes. The generalized statements regarding cybercrime and pornography collector profiles do not demonstrate that Schesso had some proclivity or likelihood of committing crimes other than the particular crime(s) described in the single incident of file sharing that occurred on October 20, 2008, particularly when the warrant was not sought for some 20 months after the date of the alleged crimes. The application for the search warrant does not support a warrant for the search and seizure of any and all electronic storage devices found at Schesso’s residence in order to comb through these devices to determine what other crimes may have been committed. The application did not justify a generalized search in this case. The affidavit simply does not support the warrant. The warrant is facially deficient. To rule to the contrary would be to say that if any person ever had a child pornography file or made such a file available to download on a peer-to-peer network, that person is subject to a general search of all of that person’s computer-related equipment without reference to the particular crime or crimes that are known to law enforcement. That is not a reasonable search under the Fourth Amendment, as that amendment has been interpreted and applied by the courts, and in particular interpreted and applied most recently by the Ninth Circuit in CDT III. See also Dkt. 88 pp. 54-59.

The constitution forecloses unlimited computer searches based on this type of seize-it-all-and-sort-it-out-later warrant that was obtained in this case. This was a general warrant, not justified or supported by the affidavit, and was facially deficient.

The good faith exception did not apply:

The good faith exception is inapplicable in the context of this action where the overbroad warrant is so facially deficient that reliance on it is not reasonable. See United States v. Kow, 58 F.3d 423, 428-29 (9th Cir. 1995); U.S. v. Spilotro, 800 F.2d 959, 968 (9th Cir. 1986); United States v. Washington, 782 F.2d 807, 819 (9th Cir. 1986); U.S. v. Crozier, 777 F.2d 1376, 1381-82 (9th Cir. 1985). This is particularly true where the agents knowingly opted to seek a forum that might accept a less particular and specific warrant than a federal magistrate would require (see Dkt. 74 at 5).

The warrant in this case is so broad and deviates so far from well-established Fourth Amendment standards that the searches based on that warrant cannot be defended on the basis of good faith. Exclusion of the evidence is appropriate.

Permalink 12:02:12 pm, by fourth, 198 words, 2972 views   English (US)
Categories: General

CA2: Entry into house here for child protection was based on necessity and exigency

The warrantless entry here did not violate plaintiff’s Fourth Amendment rights because the objective circumstances at the time could cause a reasonable officer to believe that there were exigent circumstances requiring prompt entry. Prior to entering the house, officers were told that plaintiff was armed and dangerous and a convicted felon wanted for weapons and drug violations, there was a documented history of substantiated DCF involvement with plaintiff’s seven-year-old step-daughter, that an earlier search resulted in the seizure of guns and drugs accessible to children, and that DCF wanted to remove the child due to concerns about her health, welfare, and safety. Thus, it was objectively reasonable to believe that plaintiff may have been at the residence and that he posed a threat to the child as well as the DCF worker conducting the welfare check, so entry was justified by exigent circumstances and the officers were entitled to qualified immunity. Montanez v. Sharoh, 444 Fed. Appx. 484 (2d Cir. 2011).*

Officer entered plaintiff’s property on a “civil standby” where he didn’t read the order and the order did not permit an entry. The entry thus violated the Fourth Amendment. Osborne v. Seymour, 164 Wn. App. 820, 265 P.3d 917 (2011).*

Permalink 11:46:12 am, by fourth, 372 words, 3084 views   English (US)
Categories: General

CA4: Entry onto property from side to look in window on a domestic disturbance call was not unreasonable

An officer did not violate the Fourth Amendment by coming up to property the subject of a 911 domestic disturbance call from the side and looking in a broken window seeing a gun. United States v. Moore, 453 Fed. Appx. 401 (4th Cir. 2011) (unpublished):

Here, Ayers was responding to a 911 call indicating that there was a domestic disturbance ongoing at Moore’s residence. Although another police officer had already responded to and resolved the incident, the officer had not alerted police dispatchers, and Ayers arrived on the scene, believing himself to be the first officer to respond. At the suppression hearing, Ayers testified that he approached the residence from the side, rather than proceeding to the front door, for his own safety, and decided to investigate further after seeing a broken window and hearing voices from inside. We conclude that Ayers’s action in proceeding to the side of the home and looking inside was not “so incompatible with the scope of [his] original purpose that any evidence inadvertently seen by [him] must be excluded as the fruit of an illegal search.” United States v. Anderson, 552 F.2d 1296, 1300 (8th Cir. 1977) (citing United States v. Bradshaw, 490 F.2d 1097, 1100 (4th Cir. 1974)).

“It is a hallmark of Fourth Amendment jurisprudence that the possibility of a threat to the safety of law enforcement officers may constitute exigent circumstances justifying a warrantless search or seizure.” United States v. Legg, 18 F.3d 240, 244 (4th Cir. 1994); see also Bellotte v. Edwards, 629 F.3d 415, 422-23 (4th Cir. 2011) (listing cases addressing the justification for no-knock entries that speak primarily in terms of threats or danger to officer safety). “For police officers successfully to assert the exigent circumstances doctrine, they need only possess a reasonable suspicion that such circumstances exist at the time of the search or seizure in question.” Figg v. Schroeder, 312 F.3d 625, 639 (4th Cir. 2002) (internal quotation marks omitted). Courts should not “engage in unreasonable second-guessing of the officers’ assessment of the circumstances that they faced.” Id. (internal quotation marks omitted). We have reviewed the record and conclude that the officers were justified in entering the home when Ayers observed one of Moore’s companions pointing a firearm at the front door where other deputies stood. Indeed, they acted entirely reasonably under the circumstances.

Permalink 08:37:42 am, by fourth, 145 words, 2932 views   English (US)
Categories: General

ChiTrib: "Lawmakers define protections from police entry"

Chicago Tribune: Lawmakers define protections from police entry by Tom LoBianco:

INDIANAPOLIS — Richard Barnes may have started a constitutional furor in 2007 when he shoved a police officer against the wall of his apartment. But he would not have benefitted from a new set of rules Indiana lawmakers are drafting in response to the incident.

A legislative study committee voted Thursday to advance new guidelines on police entry to the full General Assembly when it reconvenes in January. Indiana residents would be able to use force to prevent police from entering their homes in a handful of instances if the Legislature approves the recommendations.

The Indiana Supreme Court sparked an uproar when it ruled in May that homeowners cannot violently resist police officer's entry into their homes. The justices later clarified their ruling does not abridge Fourth Amendment rights.

See prior posts on Barnes starting here.

Permalink 03:58:10 am, by fourth, 73 words, 3147 views   English (US)
Categories: General

DOJ Computer Search Manual updated

I've updated the link to Searching & Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations on the DOJ website.

This "new" publication has been out for two years, but I haven't been to it for a while. The prior edition was from 2002, and it was quite helpful. The case law really exploded between 2002 and 2009, so the update should be quite useful. This is an excellent resource for both sides of the table.

FourthAmendment.com

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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
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"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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