Overbroad investigative subpoena for defendant’s text messages violated his reasonable expectation of privacy. (The court includes stout support for a reasonable expectation of privacy in the product of a cell phone (omitted here, but read the opinion); just because government can get to something like the provider records doesn't mean there is no reasonable expectation of privacy.) State v. Clampitt, 364 S.W.3d 605 (Mo. App. 2011):

The rationale used by the Warshak court in establishing individuals' reasonable expectation of privacy in the contents of their email is equally applicable to cell phone users' expectation of privacy in the contents of their text messages. Cell phone providers have the ability to access their subscribers' text messages; however, the providers' ability to access those messages does not diminish subscribers' expectation of privacy in their text message communications. Rather, subscribers assume that the contents of their text messages will remain private despite the necessity of a third party to complete the correspondence. Callers have long enjoyed Fourth Amendment protection of the information they communicate over the phone. We see no reason why the same information communicated textually from that same device should receive any less protection under the Fourth Amendment.

Furthermore, society's continued expectation of privacy in communications made by letter or phone call demonstrates its willingness to recognize a legitimate expectation of privacy in the contents of text messages. What individuals once communicated through phone calls and letters can now be sent in a text message. Thus, as text messaging becomes an ever-increasing substitute for the more traditional forms of communication, it follows that society expects the contents of text messages to receive the same Fourth Amendment protections afforded to letters and phone calls. We therefore find that the trial court did not err in concluding that Clampitt had a reasonable expectation of privacy in the contents of his text messages.

. . .

The investigative subpoenas issued in this case were not sufficiently limited in scope or relevant in purpose. The trial court found that the State obtained copies of all text messages sent to and received by Clampitt for a thirty-two day period, which included the date of the accident and the following thirty-one days. The subpoenas did not request text messages Clampitt sent to or received from specific numbers; rather, the State obtained copies of all incoming and outgoing text messages, regardless of the recipient or sender. Furthermore, the Special Prosecutor testified that "[t]he period of time [specified in the subpoenas was] extended until such time as the defendant admitted that he was the driver of the vehicle." In other words, the State issued each consecutive subpoena because Clampitt made no admission within the time specified in the previous subpoena. If no evidence with which to charge Clampitt had come about, presumably the State would still be issuing subpoenas periodically in the hope of securing something it could use against him. The trial court found that the subpoenas were nothing but a fishing expedition, a finding amply supported by the record, and a practice uniformly recognized by the courts to be improper. Thus, even though the State contends the subpoenas were limited in scope because each subpoena requested text messages sent and received within specified dates, the only significance of those specified dates was that Clampitt had yet to admit he was the driver of the vehicle at the time of the accident. Therefore, by requesting all of Clampitt's incoming and outgoing text messages up until the time he came forward as the driver of the vehicle, the State failed to sufficiently limit the scope of information it requested in the investigative subpoenas.

. . .

Furthermore, the State had no relevant purpose for requesting Clampitt's incoming and outgoing text messages beyond the time of the accident. The trial court found that "the state was eavesdropping to see if the defendant would make an admission." By the Special Prosecutor's own testimony, the State sought the contents of Clampitt's text messages for the sole purpose of obtaining an admission from Clampitt as to who was driving the vehicle at the time of the accident. ...

Also, the good faith exception applies to police conduct, not overbroad prosecutor’s investigative subpoenas. And, Herring provides no recourse either.

One could almost say this is channeling the [hopeful] prospects of Jones, the day after and without citing it.

The motion to suppress was heard and denied, and defendant’s guilty plea without a reservation of a conditional plea waived that. United States v. Lebron, 2012 U.S. Dist. LEXIS 6633 (D. R.I. January 20, 2012).*

“Movant's assertion that counsel was ineffective for failing to file pretrial motions in no way implicates the voluntariness of his plea of guilty. As a result, movant's plea of guilty prevents consideration of the third ground for review in this proceeding.” Swift v. United States, 2011 U.S. Dist. LEXIS 152097 (E.D. Tex. December 29, 2011).*

Defendant’s § 2255 claim that the prosecution, police, and defense counsel conspired to delete defendant’s girlfriend’s consent from the DVD of the stop did not show prejudice because the valid stop showed probable cause of drug possession that led to the search. Thomas v. United States, 2012 U.S. Dist. LEXIS 7091 (M.D. Tenn. January 20, 2012).*

The affidavit for the search warrant for defendant’s blood for evidence of drug use in a DUI case was completely deficient and speculative. Accordingly, the good faith exception would not apply either. People v. Miranda, 2012 IL App (2d) 100769, 964 N.E.2d 1241 (2012):

[**11] Although this test is highly deferential, we must conclude that McLean's affidavit did not provide a substantial basis to find probable cause that testing defendant's urine would reveal the presence of any controlled substance. McLean's affidavit said next to nothing about controlled substances, and what scant mention it did make was unsupported by facts. McLean referred to finding physical evidence of alcohol consumption (the open Heineken bottles), but not to finding any physical evidence of drug use. He stated that he smelled alcohol on defendant's breath, observed standard indicia of alcohol intoxication, learned from defendant that he had consumed alcohol, and administered field sobriety tests that defendant failed. As a result of all of the foregoing, McLean "believed that [defendant] was under the influence of alcohol" (emphasis added) and arrested him for DUI. Conspicuously absent from McLean's detailed factual recitation was any reference to controlled substances or any evidence that defendant had used them. McLean did not state that any of these facts made him suspect that defendant had used controlled substances.

The evidence showed that the defendant only used the shed on a friend’s property when he was there visiting during the day, and then only to leave the bicycle he rode there, the backpack he wore, and his coat. Otherwise, nothing was kept there. That was not enough to create “standing” in the premises. People v. Nichols, 2012 IL App (2d) 100028, 964 N.E.2d 1190 (2012).*

Ryburn v. Huff, 2012 U.S. LEXIS 1063 (U.S. January 23, 2012) (per curiam), reversing in part Huff v. City of Burbank, 632 F. 3d 539 (9th Cir. January 11, 2011):

Judge Rawlinson dissented. She explained that “the discrete incident that precipitated the entry in this case was Mrs. Huff’s response to the question regarding whether there were guns in the house.” Id., at 31. She faulted the majority for “recit[ing] a sanitized account of this event” that differed markedly from the District Court’s findings of fact, which the majority had conceded must be credited. Judge Rawlinson looked to “cases that specifically address the scenario where officer safety concerns prompted the entry” and concluded that, under the rationale articulated in those cases, “a police officer could have reasonably believed that he was justified in making a warrantless entry to ensure that no one inside the house had a gun after Mrs. Huff ran into the house without answering the question of whether anyone had a weapon.” Id., at 31, 33, 37.

Judge Rawlinson’s analysis of the qualified immunity issue was correct. No decision of this Court has found a Fourth Amendment violation on facts even roughly comparable to those present in this case. On the contrary, some of our opinions may be read as pointing in the opposition direction.

In Brigham City v. Stuart, 547 U. S. 398, 400 (2006), we held that officers may enter a residence without a warrant when they have “an objectively reasonable basis for believing that an occupant is ... imminently threatened with [serious injury].” We explained that “‘[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’” Id., at 403 (quoting Mincey v. Arizona, 437 U. S. 385, 392 (1978)). In addition, in Georgia v. Randolph, 547 U. S. 103, 118 (2006), the Court stated that “it would be silly to suggest that the police would commit a tort by entering [a residence] ... to determine whether violence ... is about to (or soon will) occur.”

A reasonable police officer could read these decisions to mean that the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable basis for concluding that there is an imminent threat of violence. In this case, the District Court concluded that petitioners had such an objectively reasonable basis for reaching such a conclusion.

The Ninth Circuit's panel was a little too ivory tower for SCOTUS. A hang-up when the police called inside did not have to be blown off as the people inside just exercising their right not to talk to the police because it could have meant more:

The panel majority—far removed from the scene and with the opportunity to dissect the elements of the situation—confidently concluded that the officers really had no reason to fear for their safety or that of anyone else. As the panel majority saw things, it was irrelevant that the Huffs did not respond when the officers knocked on the door and announced their presence and when they called the home phone because the Huffs had no legal obligation to respond to a knock on the door or to answer the phone. The majority attributed no significance to the fact that, when the officers finally reached Mrs. Huff on her cell phone, she abruptly hung up in the middle of their conversation. And, according to the majority, the officers should not have been concerned by Mrs. Huff’s reaction when they asked her if there were any guns in the house because Mrs. Huff “merely asserted her right to end her conversation with the officers and returned to her home.”

See School Law Blog.

But see Kentucky v. King, 131 S.Ct. 1849 (2011): “Others may appreciate the opportunity to make an informed decision about whether to answer the door to the police.”

Exigent circumstances in SCOTUS gets another lift, almost to the point that purported exigency is looking to outweigh search warrants. The court is nibbling around the “sanctity of the home” everywhere it can. See Silverman v. United States, 365 U.S. 505, 511 (1961) (“At [the Fourth Amendment’s] very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion.” Silverman was cited with approval the same day as Ryburn in United States v. Jones, 10–1259 (U.S. January 23, 2012).