First he acknowledges that a persons privacy right has been restricted over the years and with the advent of technology privacy may get harder to protect.

A. Introduction The revolution of the Warren Court, especially in the area of search and seizure under the Fourth Amendment, was largely an expansion of federal constitutional rights in the face of state practices that limited the protection of individual rights embodied in the Bill of Rights. The following outline of federal cases construing the protections of the Fourth Amendment reflects a dynamic tension between the need to secure evidence to convict law breakers and the protection of citizens’ reasonable expectations of privacy. The result has been an overall contraction of privacy rights. This outline sets out basic principles and counterpoints from which criminal defense lawyers can fashion arguments for a more expansive view of the Fourth Amendment’s protections.

And then he encourages us to do right by our clients – kinda quit moaning and start thinking.

In order to most effectively serve clients, developments in Supreme Court construction of the Fourth Amendment must be followed. Rather than dwelling on the negative aspects of the recent trends, the purpose of this article is to trace developments in selected areas and juxtapose the lead cases with federal court cases in which the defendant prevailed. The counterpoints are not intended to be exhaustive, but are provided to encourage creative use of the available precedents that may make a decisive difference for clients in state or federal court.

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 LEXIS 19220, 2010 FED App. 0604N (6th Cir. September 13, 2010) (unpublished).

Technology has made it increasingly easy for the government to track an individual’s whereabouts. But on Tuesday, a three-judge panel of the Third Circuit ratcheted back the government’s surveillance power, finding that judges have the right to require warrants before police get cell phone records that could pinpoint a customer’s location. Clickhere for the AP story; here for the Legal Intelligencer story; herefor the opinion, written by Judge Dolores Sloviter. The government appealed, arguing that the 1986 Electronics Communications Privacy Act required only “reasonable grounds” the data is relevant to a criminal investigation, not the higher probable cause standard needed for warrants. But the Third Circuit on Tuesday rejected the government’s argument, finding that judges could require “probable cause.” The opinion represented the first time a federal appellate court had ruled on the issue.

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

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.”

I. WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING THAT NO SOLDIER AT FORWARD OPERATING BASE (FOB) LOYALTY HAD A REASONABLE EXPECTATION OF PRIVACY IN ANY REGARD. II. WHETHER THE MILITARY JUDGE ERRED IN DENYING A MOTION TO SUPPRESS APPELLANT’S EXTERNAL HARD DRIVE AND PASSWORD PROTECTED LAPTOP WHEN THE COMMANDER WHO ORDERED THE SEIZURE OF THE EQUIPMENT IMMEDIATELY SEARCHED THE EQUIPMENT UPON SEIZURE, DEMONSTRATING THAT HE WAS PERFORMING LAW ENFORCEMENT FUNCTIONS AND WAS NOT NEUTRAL AND DETACHED WHEN SEIZING THE ITEMS. III. WHETHER THE DOCTRINE OF INEVITABLE DISCOVERY IS APPLICABLE WHEN THERE ARE NO INDEPENDENT POLICE ACTIVITIES, OR TESTIMONY OR EVIDENCE OF ROUTINE POLICE PRACTICES, THAT WOULD HAVE INEVITABLY RESULTED IN DISCOVERY, AND NO OTHER EXCEPTION TO THE FOURTH AMENDMENT APPLIES. IV. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT PROBABLE CAUSE EXISTED TO SUPPORT THE SEARCH AUTHORIZATION OF APPELLANT’S LAPTOP COMPUTER AND DETACHABLE HARD DRIVE.

The real issue became one of probable cause to search. But CAAF also reaffirmed that there is no combat zone exception to the fourth amendment.

[T]here is no general exception for locations or living quarters in a combat zone. See United States v. Poundstone, 22 C.M.A. 277, 279, 46 C.M.R. 277, 279 (1973).

There is a useful discussion of the line between a commander who is “neutral” and one who is effectively an investigator.

Fernando Garcia was convicted after a guilty plea before a general court martial. He then sought habeas relief in federal district court pursuant to 28 U.S.C. § 2241, arguing that the military appellate courts failed to afford him adequate review of his Fourth Amendment claim based on Georgia v. Randolph, 547 U.S. 103 (2006). Because we agree with the district court that the military courts gave this argument full and fair consideration, we affirm its denial of Mr. Garcia’s petition.

This was a guilty plea case. NMCCA affirmed the conviction and held that Garcia waived the Randolph issue with his guilty plea. CAAF denied his petition. Had Garcia not plead guilty, he may have benefitted from Randolph which came out after his trial but during the course of appellate proceedings. You will recollect that Randolph is the third-party consent to search case.

Mr. Garcia protests that it was unfair to find waiver in his case because he couldn’t have foreseen the decision in Randolph, which wasn’t decided until after he pled guilty. Accordingly, he contends Randolph should apply retroactively to his case despite his failure to raise the issue before the court martial and decision to plead guilty. But, again, Mr. Garcia thoroughly presented this argument to the military courts, even going so far as to urge adoption of a new rule explicitly permitting appellate review in such circumstances. Those courts found the argument without merit. The district court was thus correct to hold that it lacked authority to review Mr. Garcia’s claim any further. We affirm its denial of Mr. Garcia’s § 2241 habeas petition.

At about 11 a.m. Monday, the Supreme Court will hear one hour of oral argument in City of Ontario, et al., v. Quon, et al. (08-1332). Arguing for the California city and its police department will be Kent L. Richland of Greines, Martin, Stein & Richland in Los Angeles. The federal government, represented by Deputy Solicitor General Neal K. Katyal, will have 10 minutes as amicus urging reversal of the Ninth Circuit Court decision. Representing four individuals who sued the city will be Dieter C. Dammeier of Lackie, Dammeier & McGill in Upland, CA. The ubiquitous personal electronic device — pager, cellphone, “smart phone,” PDA — is emerging as a centerpiece in Digital Age legal controversy, including constitutional disputes when a government agency gets involved in regulating the use of these convenient computer-assisted, hand-held items. The Supreme Court has taken on a case to lay down some basic constitutional ground rules on when the users of those devices — at least in government workplaces — can claim a right of privacy, and sue to enforce the right

We live in a digital age and the police and prosecutors are taking the broadest approach possible to gain access to digital communications. As we move away from a paper based society, where you could expect some privacy from government’s prying eyes, the government’s attitude is that communication in the “clouds” waives all expectations of privacy. The only restrictions, and none enforceable by suppression motion in a criminal case, are those imposed by statutes such as the, ancient, ECPA, and the Stored Communications Act.

SCOTUSBlog has an excellent summary of the case.

Monday the Supreme Court will hear oral argument in City of Ontario v. Quon, No. 08-1332. (Linked to SCOTUSWiki).

Issues: (1) Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; (2) Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer. The petition tests whether there is a constitutionally-based right of privacy in text messages for employees of a government agency and, if there is such a right, whether it is less extensive for city employees using government-owned electronic pagers. The case involved the city’s review of text messages that a member of a police SWAT, or emergency response, team had sent to another officer with whom he was having a romantic affair, and also messages he had sent to his wife. The Supreme Court’s final decision in the case is expected to amplify or modify a 1987 decision, O’Connor v. Ortega, recognizing some workplace privacy for public employees, but counseling that courts should take into account the “operational realties of the workplace.” Although the Court agreed to hear the city’s petition, it denied review of a separate appeal by the provider of the city’s pager service, seeking to test the scope of the federal Stored Communications Act as it applied to disclosure of the context of text messages (USA Mobility Wireless v. Quon, et al., 08-1472).

O’Connor is a workplace search case and the scope of a reasonable expectation of privacy at work. Here’s some headnote law:

Searches and seizures by government employers or supervisors of the private property of their employees are subject to Fourth Amendment restraints. An expectation of privacy in one’s place of work is based upon societal expectations that have deep roots in the history of the Amendment. However, the operational realities of the workplace may make some public employees’ expectations of privacy unreasonable [480 U.S. 709, 710] when an intrusion is by a supervisor rather than a law enforcement official. Some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. Because the record does not reveal the extent to which hospital officials may have had work-related reasons to enter respondent’s office, the Court of Appeals should have remanded the matter to the District Court for its further determination. However, a majority of this Court agrees with the determination of the Court of Appeals that respondent had a reasonable expectation of privacy in his office. Regardless of any expectation of privacy in the office itself, the undisputed evidence supports the conclusion that respondent had a reasonable expectation of privacy at least in his desk and file cabinets. Pp. 714-719. In determining the appropriate standard for a search conducted by a public employer in areas in which an employee has a reasonable expectation of privacy, what is a reasonable search depends on the context within which the search takes place, and requires balancing the employee’s legitimate expectation of privacy against the government’s need for supervision, control, and the efficient operation of the workplace. Requiring an employer to obtain a warrant whenever the employer wishes to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unreasonable. Moreover, requiring a probable cause standard for searches of the type at issue here would impose intolerable burdens on public employers. Their intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this standard, both the inception and the scope of the intrusion must be reasonable.

CAAF has already developed some approaches to cloud communications. It will be interesting to see whether the Roberts’ court upholds privacy protections or a no-hands-holds-or scanner barred approach to modern day communications.

[W]e find that Stengart had a reasonable expectation of privacy in the e-mails she exchanged with her attorney on Loving Care’s laptop. Stengart plainly took steps to protect the privacy of those e-mails and shield them from her employer. She used a personal, password-protected e-mail account instead of her company e-mail address and did not save the account’s password on her computer. In other words, she had a subjective expectation of privacy in messages to and from her lawyer discussing the subject of a future lawsuit. In light of the language of the Policy and the attorney-client nature of the communications, her expectation of privacy was also objectively reasonable. As noted earlier, the Policy does not address the use of personal, web-based e-mail accounts accessed through company equipment. It does not address personal accounts at all. Nor does it warn employees that the contents of e-mails sent via personal accounts can be forensically retrieved and read by the company. Indeed, in acknowledging that occasional personal use of e-mail is permitted, the Policy created doubt about whether those e-mails are company or private property.

Here is a case from Massachusetts of some interest, Commonwealth v. Williams, 2010 Mass. App. LEXIS 384 (March 31, 2010).

Seizure of defendant’s clothing from a hospital ER was without exigent circumstances and violated his expectation of privacy. “Nor does the record reflect that obtaining a warrant before the police seized the clothes was impracticable. The detective’s generic testimony that ‘sooner [is] better’ is insufficient to establish the exigency.”

Thanks to fourthamendment.com

Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment

“I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial

The Impact of Melendez-Diaz v. Massachusetts on Admissibility of Forensic Test Results at Courts-Martial

Armed for the Attack: Recent Developments in Impeachment Evidence

Annual Review of Developments in Instructions

Arizona v. Gant: Does it Matter? by Barbara E. Armacost of the University of Virginia School of Law in 2009 S.Ct. Rev. __ (2010).

And from the abstract:

Prior to the Supreme Court’s recent opinion in Arizona v Gant, it was standard practice under New York v Belton for police to conduct a search incident to arrest (SITA) of the passenger compartment whenever they arrested the driver or a recent occupant of the vehicle. Police officers had begun to treat the SITA of a vehicle as a powerful investigative tool, using traffic stops and arrests to get a free search for evidence of more serious crimes At least as a formal matter, Arizona v Gant changed all this. In Gant the Supreme Court reviewed a Fourth Amendment challenge to an automobile search incident to arrest conducted after the driver had been arrested, handcuffed and secured in the police car. The Court held that police may not do a SITA of an automobile once the arrestee “has been secured and cannot access the interior of the vehicle” unless it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” For all practical purposes this holding means the end of Belton SITAs. It is standard protocol for police to order a potential arrestee out of his automobile, frisk him, handcuff him, and secure him in the officer’s vehicle. This means that SITAs of automobiles will almost never be justified. When Gant came before the Supreme Court, both law enforcement and the defense bar viewed it as a big deal. Defense attorneys urged the Supreme Court to eliminate the automatic Belton search, which was widely viewed as creating incentives for pretextual traffic stops and exploratory searches. Law enforcement officials argued against overruling Belton on the grounds that eliminating the vehicle SITA would compromise officer safety and hamstring police investigators. In my view, neither side got precisely what it wanted.

Please note the new link to the SCOTUS, and their newly designed site.

The dissent says it all.

RYAN, J., with whom ERDMANN, J., joins (dissenting): I cannot agree with the continued dilution of the requirement that there be an actual, as opposed to an intuitive or a hypothetical, nexus between the evidence sought and the location to be searched. Compare United States v. Higgins, 557 F.3d 381, 390 (6th Cir. 2009) (finding no probable cause to search suspect’s home because affidavit only stated that informant had purchased contraband from suspect and did not assert informant had ever been in suspect’s home), and United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005) (finding no probable cause because “the defendant’s status as a drug dealer, standing alone, [does not] give[] rise to a fair probability that drugs will be found in his home”), with United States v. Clayton, __ M.J. __ (12-13, 16) (C.A.A.F. 2010) (finding probable cause to search suspect’s residence despite no evidence linking child pornography to that location), United States v. Macomber, 67 M.J. 214, 219-20 (C.A.A.F. 2009) (same), and United States v. Gallo, 55 M.J. 418, 422 (C.A.A.F. 2001) (same). Absent such dilution, the magistrate’s finding of probable cause is not sustainable.

This would seem a certworthy issue.

Police reports were “deceptive and deficient,” but the court believes officer without a credibility determination: Ties go to the runner, or the government. The court finds the officer deceptive and believes him anyway because of a presumption police officers tell the truth [even when their reports are “deceptive and deficient”]. United States v. Jauregui-Barrajas, 2010 U.S. Dist. LEXIS 19064 (D. Ariz. January 13, 2010).

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN DENYING THE DEFENSE MOTION TO SUPPRESS ALL EVIDENCE FROM APPELLANT’S HOME.

The two underlying point were: potential erroneous information given for a search warrant (statements were factually incorrect, but believed to be true by the detective at the time), and if there was erroneous information, was there enough probable cause without the erroneous information.

[T]he military judge concluded there was no evidence that the detective “made these statements with reckless disregard for the truth.” Finally, the military judge concluded that “Despite the erroneous information mistakenly provided to the Judge, there still remained a substantial basis for determining the existence of probable cause.”

Judge Baker wrote the opinion, with Judge Stucky concurring in the result and Judges Erdmann and Chief Judge Effron, concurring in part and dissenting in part.

The circumstances of this case do not fit neatly into an existing case law rubric involving either omissions or assertions. The detective did not withhold knowledge about the roommate’s urinalysis nor is there reason to believe he had serious doubts about what he said about the urinalysis. Indeed, the record reflects that he acted in good faith. The concern in this case is procedural. The question is whether the detective was merely negligent or reckless in not doing more to confirm the affidavit facts in this specific context.

Judge Baker made a, “determination that the information in question was provided recklessly [as] a fact-specific holding.” Slip op. at 13. The next question being what impact if any that had on the validity of the warrant.

[W]e agree with the military judge’s statement that the affidavit “could undoubtedly have been more detailed, with additional information about the reliable source and information unquestionably should have been confirmed between the OSI and Det Kraus [sic].” At the same time, based on the totality of the circumstances, we conclude that the military judge did not abuse her discretion in admitting the evidence seized from Appellant’s home.

Judge Stucky disagreed with the recklessness finding of the court’s opinion.

Judge Erdmann writing for himself and Chief Judge Effron concurred that the information was provided recklessly, but disagreed that sufficient probable cause remained after removing the false information.

United States v. Anderson.

Dwight Sullivan comments on this case at CAAFLog. Along with Dwight I testified at the Cox Commission. I was there on behalf of the Military Law Committee, Bar Association of the District of Columbia. Interestingly, when Dwight and I showed up at the hearing we had both independently picked the “expert” issue as our main focus.

Federal law should govern a federal NCIS search on a military base for evidence of a murder of a civilian employee on the base that ends up prosecuted in state court. The court finds that this is a narrow issue in this case. The security search of defendant’s car on the military base was also valid. State v. Torres, 2009 Haw. App. LEXIS 781 (December 15, 2009).

Fourthamendment.com.

Here is a link to a New York Times editorial on the Ohio case.

The Ohio Supreme Court has struck an important blow for privacy rights, ruling that the police need a warrant to search a cellphone. The court rightly recognized that cellphones today are a lot more than just telephones, that they hold a wealth of personal information and that the privacy interest in them is considerable. This was the first such ruling from a state supreme court. It is a model for other courts to follow.

However, fourthamendment.com has these items.

The defendant was arrested on drug charges, and the police let him keep his cellphone while they discussed the possibility he would snitch for them. When it became apparent he wouldn’t snitch, they took the cellphone and searched it. It was still incident to the arrest. United States v. Georgiou, 2009 U.S. Dist. LEXIS 114729 (E.D. Pa. December 7, 2009). Accidental accessing of pictures on a cellphone when attempting to turn it off before storage during defendant’s booking revealed child porn pictures. This was not an unreasonable search because it was accidental and resulted in a plain view. Search incident, as argued by the government, would not apply because the phone was not a part of any crime. United States v. Yockey, 2009 U.S. Dist. LEXIS 67259 (N.D. Iowa August 3, 2009), USMJ R&R affirmed, United States v. Yockey, 2009 U.S. Dist. LEXIS 77373 (N.D. Iowa August 28, 2009). Search incident of defendant’s cell phone was reasonable: “The search of Wurie’s cell phone incident to his arrest was limited and reasonable. The officers, having seen the ‘my house’ notation on Wurie’s caller identification screen, reasonably believed that the stored phone number would lead them to the location of Wurie’s suspected drug stash.” The court, however, has doubts about the breadth of cellphone search incident and summarizes the law. United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009).

In Wurie, the summary begins:

Neither the Supreme Court nor the First Circuit has directly considered the issue of whether a search incident to arrest may include a search of a cell phone’s contents, and if it does, how thorough the search might be. It seems indisputable that a person has a subjective expectation of privacy in the contents of his or her cell phone. See, e.g., United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007) (defendant had a sufficient privacy interest in his cell phone’s call records and text messages to challenge their search; the search of the stored text messages, however, was permissible as incident to a valid arrest). Decisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager tecology) trend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones.

United States v. Wurie, 612 F. Supp. 2d 104, 109 (D. Mass. 2009), but see:

The actual facts of Diaz’s case are sufficiently different to warrant a different conclusion. The warrantless search of Diaz’s cellular telephone cannot be justified as a search incident to arrest.

Commonwealth v. Diaz, 26 Mass. L. Rep. 94 (Mass. Super. Ct. 2009).

A quick LEXIS check for “cell-phone” in military cases didn’t find one questioning a cell-phone search. United States v. Huchel, ACM 34824 (A. F. Ct. Crim. App. June 16, 2003) (unpub.) involved a consent search and was resolved on the voluntariness of the consent, and appears primarily related to a house search.

Ohio holds today (4-3) that a cell phone search requires a warrant without exigent circumstances. Therefore, it was not subject to a search incident. Today’s cell phones are analogous to a computer. State v. Smith, 2009 Ohio 6426 (December 15, 2009).

FourthAmendment blog reports. Seems there ought to be similar results for a military search and that the fruits of a warrantless search should similarly be excluded at court-martial.