examiner.com: Washington gun control proposal said to violate Fourth Amendment to Constitution, referring to an assault weapon limit in SB 5737. Section 2(5)(a) provides:

(5) In order to continue to possess an assault weapon that was legally possessed on the effective date of this section, the person possessing the assault weapon shall do all of the following:
(a) Safely and securely store the assault weapon. The sheriff of the county may, no more than once per year, conduct an inspection to ensure compliance with this subsection; ...

I suspect the "no more than once a year" is taken from the federal firearm's licensee law that permits ATF to inspect sales records no more than once a year. An FFL is a highly regulated business by definition, with a history of regulation as stated in United States v. Biswell, 406 U.S. 311 (1972).

Can it be said that possession of an assault weapon is per se to become a highly regulated activity? I don't think so. Therefore, § 2(5)(a) violates the Fourth Amendment by requiring the homeowner to submit to an inspection of the home from the Sheriff as to whether the gun is safely stored. I don't even think the Sheriffs would want to be involved. (But query: Is is possible for something new to become highly regulated in short order? We may get to see with this if it passes.)

When some headline screams "Fourth Amendment violated by ...," I have to look. Usually they are wrong or exaggerating. This one isn't.

Defendant was indicted for conspiracy to ship high tech medical imaging equipment to Iran in violation of the embargo. His overbroad computer search argument under United States v. Comprehensive Drug Testing is rejected, and Kozinski's concurrence isn't binding. Safe harbor, yes, but not binding. United States v. Nazemzadeh, 2013 U.S. Dist. LEXIS 18983 (S.D. Cal. February 11, 2013):

In addition to being sufficiently clear, a warrant must also be "legal, that is not overbroad." SDI Future Health, 568 F.3d at 702. "[T]his means that 'there [must] be probable cause to seize the particular thing[s] named in the warrant.'" Id. (quoting In re Grand Jury Subpoenas, 926 F.2d at 857). Therefore, "breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based." Id. Probable cause means a fair probability, not certainty or even a preponderance of the evidence. Id. (internal citations and quotations omitted.).

A. The Warrant Appropriately Granted Permission to Seize Data and Limited Officers' Discretion as they Conducted the Offsite Search

Nazemzadeh argues the warrant was overbroad because it failed to set forth specific guidelines regarding the search protocol and allowed officers to seize "vast amounts" of data and keep it indefinitely. He claims that the warrant should have included a specific search methodology or listed a specific word search. Nazemzadeh's arguments are framed as breadth arguments. However, cases analyzing whether search protocols are required frame the question as one of particularity. See, e.g., United States v. Adjani, 452 F.3d 1140, 1147-50 (9th Cir. 2006) (discussing particularity in response to overbreadth argument).

The parties agree, and are correct, that United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) as applied by United States v. Comprehensive Drug Testing, is the governing standard, 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam) ("CDT") ("we have updated Tamura to apply to the daunting realities of electronic searches."). Tamura, provides when probable cause exists, "all items in a set of files may be inspected during a search, provided that sufficiently specific guidelines for identifying the documents sought are provided in the search warrant and are followed by the officers conducting the search. Tamura, at 595. It further provides, "[i]f the need for transporting the documents is known to the officers prior to the search, they may apply for specific authorization for large-scale removal of material, which should be granted by the magistrate issuing the warrant only where on-site sorting is infeasible and no other practical alternative exists." Id. Even where documents not covered by the warrant are seized and retained by the government, suppression is not necessarily required. See Tamura, at 597.

Although evidence was suppressed in CDT, that case's application of Tamura does not mandate suppression here. CDT cautioned that "because over-seizing is an inherent part" of the process of searching electronic records, greater vigilance is called for on the part of judicial officers to strike the correct balance between the government's interest in law enforcement and the right to be free from unlawful searches. CDT at 1177. While compliance with Justice Kozinski's concurrence in CDT would provide a "safe harbor" for agents, it is not required, as Defendant asserts. CDT, at 1183 (Callahan, J., dissenting) ("The concurrence is not joined by a majority of the en banc panel and accordingly the suggested guidelines are not Ninth Circuit law.").

Plaintiffs were detained for five hours and interrogated as witnesses after a shooting, and they stated a claim that the detention was unreasonable. The decedent’s estate also had a claim under the “danger creation” doctrine because the officers at the scene refused to let the ambulance leave timely, and that led to the death from lack of hospital care. Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013) (on rehearing from 697 F.3d 941):

=> Read more!

Police tracked a suicidal and intoxicated runaway teenager to defendant’s house via the cell phone’s GPS. At the house, nobody responded to the door, but the officers could hear the TV on upstairs. The door opened with a touch, and the lock was broken. The entry was justified by exigent circumstances. State v. York, 2013 Iowa App. LEXIS 163 (February 13, 2013):

Guiding our Fourth Amendment analysis is the fundamental question of "whether the search and seizure were reasonable in light of the facts and circumstances of the case." Crawford, 659 N.W.2d at 542. We must ask whether under the facts known to officers at the time, "a reasonable person would have thought than an emergency existed." Carlson, 548 N.W.2d at 143. An intoxicated and suicidal teenager led police to a home where they discovered signs of a forced entry and unresponsive residents. Given the juvenile's suicidal threats following a physical and verbal confrontation with his parents, police officers were justified in fearing for the juvenile's life. Officers on the scene were not privy to the innocent explanation for the broken door handle nor did they have the benefit of hindsight with the time to make a calculated and technical review of the evidence. While a concerned mother watched as police searched for her intoxicated and suicidal son in near-freezing temperatures, a reasonable person under the circumstances would have thought an emergency existed sufficient to require immediate action. We find the police officers exercised their role as community caretakers in entering the home.

An officer responding to a call of shots fired in a gang dispute stopped a car “hurriedly” leaving the scene a block away when the occupants had rival gang colors to the area they were in. This was reasonable suspicion on the totality because of the officer's knowledge of the local gangs. The stop was to see what they knew. State v. Moreno, 2013 Wash. App. LEXIS 289 (February 12, 2013) ( dissent):

A police officer may rely on his experience to evaluate apparently innocuous facts. Martinez, 135 Wn. App. at 180 (citing State v. Samsel, 39 Wn. App. 564, 570-71, 694 P.2d 670 (1985)). Facts “which appear innocuous to the average person may appear incriminating to a police officer in light of past experience.” Samsel, 39 Wn. App. at 570. Police officers are not required to set aside that experience. Id. at 570-71. Mr. Moreno argues the stop here was based on nothing more than a hunch. But here, officers were essentially responding to a crime in progress. See Thompson, 93 Wn.2d at 842; Martinez, 135 Wn. App. at 181-82. Multiple reports of gunfire had been reported one block away just moments before the stop. Sergeant Salinas had considerable experience with gangs in this specific area. He knew the shots came in a Sureño neighborhood. He saw Mr. Bojorquez was wearing a red shirt, associated with the rival Norteño gang. He knew people would not be expected to wear red in a Sureño neighborhood. He saw the car hurriedly leaving the alley given the poor alleyway conditions. Given all, Sergeant Salinas reasonably believed “this car is somehow involved or … they can tell me more about what's happened.” RP at 57.

Defendant was stopped because he was driving the van of a friend of his for whom there was a warrant out. Before the stop, however, the officer saw that the driver was not the wanted person, but stopped him anyway. The stop was without reasonable suspicion because it dissipated between first observation of the vehicle and seeing the driver was not the wanted person. People v. Cummings, 2013 IL App (3d) 120128, 984 N.E.2d 1162 (2013).

Defendant’s stop and its justification were videotaped, and he was weaving. That was at least reasonable suspicion. Acree v. State, 2013 Ga. App. LEXIS 61 (February 8, 2013).*

Defendant was not seized when an officer came up to her asleep in her car with the engine running and told her to roll down the window. Pierce v. State, 2013 Ga. App. LEXIS 59 (February 8, 2013).*

Defendant’s weaving was reasonable suspicion for a stop. State v. Littlefield, 2013 Ohio 481, 2013 Ohio App. LEXIS 418 (4th Dist. February 7, 2013).*