Defendant's sole challenge to the motion to suppress is that because the Tennessee general sessions judge who signed the search warrant application presided in a different county from Defendant's residence, the judge had no authority under Tennessee law to authorize the warrant. It is uncontested by the government that the authorizing judge, Judge Faris, did not have jurisdiction under Tennessee law to authorize a warrant for property in a different county. The question becomes whether this lack of authority is relevant in a prosecution occurring in federal court. For the following reasons, we determine that it is.

. . .

The problem for the government in this case, however, is that the warrant is not invalid because of an additional protection provided by the state. Instead, the warrant is invalid because it does not comply with the Fourth Amendment. The jurisdictional limits placed on Judge Faris are not additional protections for a citizen but instead merely a reflection of the authority vested by the state in a general sessions judge. As we recognized in United States v. Scott, 260 F.3d 512, 515 (6th Cir. 2001), "when a warrant is signed by someone who lacks the legal authority necessary to issue search warrants, the warrant is void ab initio." Here, it is undisputed that Judge Faris did not have the authority under Tennessee law to authorize the warrant for a search of Defendant's property in Coffee County.

The government factually distinguishes Scott, but those distinctions do not compel a different outcome. In Scott, this Court granted a motion to suppress when the search warrant was signed by a retired judge. The judge occasionally substituted for active judges but was not working in that capacity when he signed the warrant. Therefore, when the judge in Scott approved the warrant, he had no authority to approve any warrants, while Judge Faris undoubtedly had authority to issue warrants for Franklin County.

However, the difference between the judge in Scott and Judge Faris are immaterial in determining the validity of a warrant. ...

Trooper Greene testified that he was standing outside the car with the door closed looking inside when he observed the "chunk." [Doc. 26 at 25.] He further testified that the "chunk" was "slightly smaller than [a] pinky fingernail." [Doc. 26 at 20.] Other testimony showed the interior of the vehicle was messy with torn carpeting and that discarded items were scattered throughout the car. [Exhibit DX3.] The Court finds that from Trooper Greene's vantage point, standing outside of a sport utility vehicle with the door closed and peering in through the window into a messy vehicle, the incriminating character of a fingernail-sized piece of plant matter could not be "immediately apparent." From the distance of a few feet it would be impossible for even an experienced officer to determine that a "chunk" of plant matter on the floorboard of a vehicle only a few millimeters in size was in fact marijuana, and not a piece of soil, grass, or other material.

Because the incriminating nature of the "chunk" could not have been immediately apparent to Greene at the time it was in his "plain view," Greene did not have the authority to seize it under the plain view exception. See McLevain, 310 F.3d at 442 (reversing trial court's denial of motion to suppress because incriminating nature of a twist tie, a cigarette filter, a spoon with residue, and a bottle, which experienced officers believed to be associated with methamphetamine use, was not immediately apparent); see also Arizona v. Hicks, 480 U.S. 321, 324-26, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987) (police, whose entry into home was premised on exigent circumstances related to gunfire, violated Fourth Amendment by moving stereo to read and record its serial numbers because moving stereo was "unrelated to the objectives of the authorized intrusion," and incriminating character of stereo was not immediately apparent).

The United States seeks an order pursuant to 18 U.S.C. § 2703(c)-(d) (the "Stored Communications Act" or "SCA"), directing Sprint Nextel to disclose, with respect to all calls and text messages to and from a certain mobile telephone over a period of 58 days, all "recorded information identifying the base station towers and sectors that received transmissions from" that telephone. Docket Entry ("DE") 1 at 1. The government has proffered "specific and articulable facts showing that there are reasonable grounds to believe that the information sought is relevant and material to an ongoing criminal investigation." Id. ¶ 2. The government also takes the position that the proffered facts establish "probable cause" sufficient to permit the issuance of a warrant for historical cell-site information pursuant to Federal Rule of Criminal Procedure 41, id. at 2 n.1, but it nevertheless has expressly declined to seek such relief, preferring instead to rely exclusively on the SCA. For the reasons set forth below, I deny the government's application on the ground that the Fourth Amendment requires the government to obtain a warrant, based on a showing of probable cause on oath or affirmation, in order to secure the information it seeks.

. . .

What is the significance of the conclusion that a cell phone acts as a tracking device when it transmits information about its location? The significance is that if cell phones squarely meet the definition of "tracking devices" it is time to stop treating them as something else, at least when the Government seeks to use them to track a person's movements. Rule 41 contains express procedures governing tracking device warrants, and those procedures need to be followed with regard to future requests for CSLI. This means several things. First, in past applications, the Government has taken the position that it has no obligation to provide notice of the tracking to the cell phone user, as its notice obligation was met by service of the order on the telecommunications provider from whom it received the CSLI. This does not meet the requirements of Rule 41, which provides that when a tracking device warrant is authorized, "the officer must serve a copy of the warrant on the person who was tracked or whose property was tracked." FED. R. CRIM. P. 41(f)(2)(C). 19 Thus, warrants seeking CSLI must meet this obligation of Rule 41. Similarly, a return must be filed, as with all other warrants. FED. R. CRIM. P. 41(f)(2)(B).

[I estimate that there were about 20 posts on other websites about this case in the last two days. I had to get to court yesterday and did not get to post until today.]

[*P13] An inventory search conducted with an investigatory intent and not in the manner of an inventory search does not constitute an inventory search. State v. Seals, 8th Dist. No. 90561, 2008 Ohio 5117, P28, citing Caponi, supra. It is apparent that Officer Yasenchack used the inventory search as a "pretext" for searching for more evidence. If he suspected evidence was in the wheel well, he should have obtained a search warrant to inspect it. The vehicle was not at risk of being driven away because, as Officer Yasenchack testified, it was to be towed to a secured police parking lot.

[*P14] We do not find the State's argument that the "automobile exception" to the warrant requirement allowed Officer Yasenchack to search the wheel well persuasive. The officer specifically stated that he performed an inventory search of the vehicle. Further, the prosecutor argued to the trial court that this was a "standard search of an automobile lawfully towed."

The stop in this case, with guns drawn and commands to show hands was not a situation where the suspects were “free to leave.” State v. Mayberry, 2010 Ohio 4081, 2010 Ohio App. LEXIS 3458 (2d Dist. August 30, 2010)*:

[*P27] The threatening presence of several officers, the officer's wearing of a uniform, the officer's display of a weapon, and the officer's use of language or a tone of voice conveying that compliance is compelled are among various factors that indicate that an encounter is not consensual. State v. Saunders, Montgomery App. No. 22621, 2009 Ohio 1273, P16, quoting State v. Schott (May 16, 1997), Darke App. No. 1415, 1997 Ohio App. LEXIS 2061. Officer Dedrick's conduct of approaching the vehicle with his weapon drawn and ordering the occupants to show their hands, along with Officer Gustwiller's subsequent orders to Mayberry, constituted a display of authority such that the four individuals would not have believed that they were free to leave but, instead, that they were compelled to comply with the officers' orders. Accordingly, upon exiting the cruiser, the officers initiated an investigatory detention, which was lawful only if they had a reasonable and articulable suspicion of criminal activity when the detention began.

[posted 8/31--I had to get to court yesterday]

Other sleeping news organizations just noticing this 7½ month old decision are:

• CNN, August 27: Court allows agents to secretly put GPS trackers on cars

• FoxNews August 27: Court Allows Warrantless GPS Tracking

• All headline news, August 27: Ninth Circuit Appeals Court Allows Warrantless GPS Tracking

OPB News had it a week later on January 19: Ninth Circuit Court Allows GPS Surveillance Technique.

None of them bother to mention United States v. Maynard from the D.C. Circuit a few weeks ago or People v. Weaver from New York’s highest court last year, posted here holding that there are government limits on GPS. It isn't over their heads. Jeffery Toobin could do it, or the faux former judge on Fox with the plastic hair.

Where are you guys when "the right to be let alone" is swirling around and down the toilet? Where is the thoughtful analysis that should inform the public that this is going to the Supreme Court and what might happen there? Not from these people; not yet.

This was partly conceded in the Freep.com: We, the people, need to pay attention by Rochelle Riley in the Detroit Free Press:

We, the people, don't always keep up with what federal agencies are doing.

So while we, the people, aren't looking, we are losing our rights.

While we were sleeping, the U.S. 9th Circuit Court of Appeals -- which covers California and eight other states -- decided it was OK for agents from the federal Drug Enforcement Administration to sneak into a guy's driveway and put a GPS tracking device under the bottom of his car. The wise judges said that the agents did not need a warrant because the guy's driveway wasn't private.

That kind of thinking -- that you should have no expectation of privacy in your driveway -- is now law in nine states.

And, Ms. Riley, as for the others, it isn't that they were sleeping--their head was someplace else. Likely more "worried" about [read: fell for] any false political issues of the day designed to distract all of you from what is really going on in criminal justice, and it worked. It really worked.

Better late than never, apparently.

Abstract:
We are in a period of intense technological change. The continued explosive growth in technology has two major effects on the scope and application of the Fourth Amendment. First, the diffusion of powerful new technologies like DNA synthesis and high-powered computing makes it far easier than ever before for ill-meaning groups or individuals to obtain powerful and destructive weapons. Regardless of who is perceived to desire such weapons, the very existence and potential use of such weapons poses a permanent and growing threat to national security. Second, with the development of new technologies, governments are finding it increasingly cheap and easy to conduct intrusive surveillance on their populations and to obtain data and information about individuals in quantities and in detail never before imagined. For both of these reasons, states are increasingly likely to adopt strategies of pervasive surveillance.

Fourth Amendment doctrine has failed to respond adequately to these trends. First, Fourth Amendment law – mainly, the so-called “third party doctrine” – fails to adequately protect privacy in light of new technology. Second, the few limits that have been placed on government use of technology threaten the ability of the state to conduct the type of surveillance necessary to effectively combat the risks posed by terrorism. The solution suggested is to shift the focus of the Fourth Amendment from its longstanding concern with acquisition of information to its use. Current practices already suggest that people generally are less concerned about revealing private information to others under appropriate circumstances than they are in ensuring that these limited disclosures are not misused by their recipients. In a future world where dangerous technologies are cheap and easily obtained, the critical problem will be to safeguard the population through carefully targeted surveillance, while ensuring that such surveillance cannot be used for pretextual or politically oppressive purposes.

Our holding in Gomez-Moreno applies almost precisely to this case. The officers' conduct during their knock-and-talk—banging on doors and windows while demanding entry, attempting a forced entry by breaking the glass on Hernandez's door, then relying on her admission that an illegal alien was present as probable cause to enter—violated the Fourth Amendment.

The district court should have acknowledged that the officers' knock-and-talk conduct was an unreasonable search. Had it done so, the court then would have proceeded not to the six-factor voluntariness analysis of Hernandez's consent, but instead to the alternative analysis of whether her consent was an independent act of free will, breaking the chain of causation between the constitutional violation and the consent. United States v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002). Courts consider that question by weighing three factors: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct. Id.