{"id":3418,"date":"2010-03-23T08:07:06","date_gmt":"2009-10-03T15:56:05","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-10-03T15:56:05","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3418","title":{"rendered":"OH implied consent statute does not violate Fourth Amendment"},"content":{"rendered":"

Ohio implied consent statute does not violate the Fourth or Fifth Amendment. State v. Hoover<\/a>, 2009 Ohio 4993, 123 Ohio St.3d 418, 916 N.E.2d 1056 (2009):<\/p>\n

[*P22] Hoover contends, however, that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure. However, Hoover has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. See Cunningham, 15 Ohio St.2d 121, 44 O.O.2d 119, 239 N.E.2d 40, paragraph two of the syllabus; Schmerber, 384 U.S. at 770-771, 86 S.Ct. 1826, 16 L.Ed.2d 908. Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution.<\/p><\/blockquote>\n

Traffic stop for leaving the vehicle’s engine running was valid. Defendant’s statement “No, I don’t. You can go ahead and check” was consent. State v. Freeman<\/a>, 2009 Ohio 5226, 2009 Ohio App. LEXIS 4418 (8th Dist. October 1, 2009).*<\/p>\n

Limewire software connection to the Internet showed no reasonable expectation of privacy. State v. Thornton<\/a>, 2009 Ohio 5125, 2009 Ohio App. LEXIS 4332 (10th Dist. September 29, 2009):<\/p>\n

[*P12] Appellant knowingly exposed to the public the files found on Perry’s computer and the IP address associated with that computer through the use of the Limewire program on the computer. Therefore, he had no reasonable expectation of privacy in that evidence. United States v. Ganoe (C.A.9, 2008), 538 F.3d 1117, 1127 (no legitimate expectation of privacy in files defendant made available to public using Limewire software); United States v. Borowy (D.Nev. 2008), 577 F.Supp.2d 1133, 1136 (same); United States v. Forrester (C.A.9, 2008), 512 F.3d 500, 510 (no reasonable expectation of privacy in IP address); United States v. Li (Mar. 20, 2008), S.D. Cal. No. 07 CR 2915 JM, 2008 U.S. Dist. LEXIS 22283, *15 (same). In that situation, Fourth Amendment protections are not implicated because a search does not occur. See Keith, citing State v. Sheppard (2001), 144 Ohio App.3d 135, 141, 759 N.E.2d 823.<\/p>\n

. . .<\/p>\n

[*P14] Assuming without deciding that appellant has standing to raise this argument, 3 federal courts addressing this matter have consistently held that the remedy for a violation of the ECPA is a civil action for damages, not suppression. 18 U.S.C. 2708; United States v. Perrine (C.A.10, 2008), 518 F.3d 1196, 1202; United States v. Beckett (S.D.Fla. 2008), 544 F.Supp.2d 1346,1350; United States v. Sherr (D. Md. 2005), 400 F.Supp.2d 843, 848; United States v. Kennedy (D.Kan. 2000), 81 F.Supp.2d 1103, 1110. Therefore, even if Time Warner’s disclosure violated the ECPA, 4 that statutory violation would not provide appellant with a basis to suppress the subscriber information. Moreover, a customer does not have a reasonable expectation of privacy in subscriber information given to an internet service provider. Perrine at 1204; Sherr at 848.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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