Defendant and his wife got into a domestic dispute, and she called the police to tell them about his illegal firearms. They came to the scene and she consented to the search. He was there and vociferously objected. The police searched anyway. The search violated Randolph. Moreover, the defendant’s objections put the police on notice that she probably did not have apparent authority to consent. United States v. Tatman, 2010 U.S. App. LEXIS 19220, 2010 FED App. 0604N (6th Cir. September 13, 2010) (unpublished).

Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62(4) STANFORD L. REV. 1005 (2010).

This Article proposes a general approach to applying the Fourth Amendment to the Internet. It assumes that courts will try to apply the Fourth Amendment to the Internet so that the Fourth Amendment has the same basic function online that it has offline. The Article reaches two major conclusions. First, Fourth Amendment protections online should depend on whether the data is content or non-content information. The contents of communications, like e-mail and remotely stored files, ordinarily should be protected. On the other hand, non-content information, such as IP addresses and e-mail addresses, ordinarily should not be protected. Second, courts should ordinarily require a search warrant if the government seeks to obtain the contents of protected Internet communications. Further, the scope of warrants should be based on individual users rather than individual accounts.

Hat tip/CrimProfBlog.

Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083 (2010).

In the Information Age, an increasing amount of personal information is contained in records maintained by Internet Service Providers (ISPs), phone companies, cable companies, merchants, bookstores, website, hotels, landlords, employers and private sector entities. Many private sector entities are beginning to aggregate the information in these records to create extensive digital dossiers. The data in these digital dossiers increasingly flows from the private sector to the government, particularly for law enforcement use. Law enforcement agencies have long sought personal information about individuals from various third parties to investigate fraud, white-collar crime, drug trafficking, computer crime, child pornography, and other types of criminal activity. In the aftermath of the terrorist attacks of September 11, 2001, the impetus for the government to gather personal information has greatly increased, since such data can be useful to track down terrorists and to profile airline passengers for more thorough searches. Detailed records of an individual’s reading materials, purchases, diseases, and website activity enable the government to assemble a profile of an individual’s finances, health, psychology, beliefs, politics, interests, and lifestyle. This data can unveil a person’s anonymous speech and personal associations.

Hat tip/FourthAmendment.com

The D.C. Circuit held on Friday that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limitingKnotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v. Maynard, No. 08-3030 (D.C.Cir. August 6, 2010)[.] Two circuits, relying upon Knotts, have held the use of a GPS tracking device to monitor an individual’s movements in his vehicle over a prolonged period is not a search, United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), but in neither case did the appellant argue that Knotts by its terms does not control whether prolonged surveillance is a search, as Jones argues here. Indeed, in Garcia the appellant explicitly conceded the point. … In a third related case the Eighth Circuit held the use of a GPS device to track a truck used by a drug trafficking operation was not a search. United States v. Marquez, 605 F.3d 604 (2010). … In each of these three cases the court expressly reserved the issue it seems to have thought the Supreme Court had reserved in Knotts, to wit, whether wholesale, or mass electronic surveillance of many individuals requires a warrant. Marquez, 605 F.3d at 610; Pineda-Moreno, 591 F.3d at 1216 n.2; Garcia, 474 F.3d at 996. As we have explained, in Knotts the Court actually reserved the issue of prolonged surveillance. That issue is squarely presented in this case. Here the police used the GPS device not to track Jones’s movements from one place to another, Knotts, 460 U.S. at 281, but rather to track Jones’s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place.

Today is the 26th anniversary of United States v. Leon and the good faith exception. When I remembered that this morning, I had a flash back to the last CLE I did for prosecutors about 1990 where the speaker after me referred to July 5th as “Independence Day from the Fourth Amendment.” There was rousing applause from the audience. This was in Memphis, and it is a telling commentary on the thinking of law enforcement and the Fourth Amendment. Perhaps it is fitting that the good faith exception was created in 1984. As I stated two days ago, “Close only applies in horseshoes, nuclear war, and the good faith exception.” The good faith exception to the exclusionary rule is judicial recognition of “close enough for government work.”