Recently in Search and Seizure Category

Googling the Wiretap Act

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Somewhat off-topic but interesting:  There has been a lot of controversy in recent years about the amount of data about Americans that the NSA and other government agencies have been vacuuming up.  But private businesses have been vacuuming orders of magnitude more.  Most of that activity is perfectly legal, so far, but some maybe not.

Here is the court summary of Joffe v. Google, Inc., USCA 9 No. 11-17483:

The panel granted in part a petition for rehearing, filed an amended opinion affirming the district court, and denied a petition for rehearing en banc on behalf of the court in an interlocutory appeal from the district court's order denying a motion to dismiss claims that Google violated the Wiretap Act when it collected data from unencrypted Wi-Fi networks in the course of capturing its Street View photographs.

The Wiretap Act imposes liability on a person who intentionally intercepts any electronic communication, subject to a number of exemptions. In the amended opinion, the panel held that data transmitted over a Wi-Fi network is not a "radio communication" exempt from the Wiretap Act under 18 U.S.C. § 2511(2)(g)(i) as an "electronic communication" that is "readily accessible to the general public."

The panel held that the phrase "radio communication" in 18 U.S.C. § 2510(16) excludes payload data transmitted over a Wi-Fi network, and that as a consequence, the definition of "readily accessible to the general public [ ] with respect to a radio communication" set forth in § 2510(16) does not apply to the exemption for an "electronic communication" that is "readily accessible to the general public" under § 2511(2)(g)(I).

The certiorari petition asking the US Supreme Court to review this case was filed March 27 as Google, Inc. v. Joffe, No. 13-1181.
1998:  The California Legislature provides for DNA testing of everyone convicted of certain felonies.

2004:  The voters expand the sampling and testing to everyone arrested for any felony, effective in 2009.

2009:  U.S. District Judge Charles Breyer denies a preliminary injunction against the law.

2012:  A three-judge panel of the Ninth Circuit affirms, finding the program valid.  Five months later the court grants rehearing en banc.

2013:  The Supreme Court decides in Maryland v. King that DNA testing of all persons arrested for violent crimes is valid.  The Ninth orders supplemental briefing and reargument.

Today: The en banc Ninth Circuit affirms the denial of the preliminary injunction on the ground that plaintiffs asked for an injunction against DNA testing of anyone arrested for a felony, and that they are obviously not entitled to.  After King, the law is clearly valid as applied to the arrestees for violent crimes, and the court of appeals will not consider an injunction limited to the arrestees for nonviolent crimes until such a motion has been made and heard in the district court.

Well that was a long trek for not much.  If you read a news story that says California's program was upheld today by the Ninth, don't believe it.

The upside, though, is that there is no injunction in place against the program, and the ACLU has wasted years of litigation effort as a result of overreaching and asking for too much.  We will take a little satisfaction in that.

To be continued ....

Car Chase Argument

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The US Supreme Court heard oral argument today in yet another case where the family of a person killed by police while engaging in extremely reckless, life-endangering conduct claims it is the police's fault rather than the deceased's, and therefore the police (and ultimately the taxpayers) should pay them big bucks.  The transcript in Plumhoff v. Rickard, No. 12-1117, is here.

Adam Liptak reports for the NYT:

The Supreme Court seemed to have little trouble concluding during an unusually one-sided argument on Tuesday that Arkansas police officers who had used deadly force to end a high-speed car chase could not be sued by the family of the driver.

The Long Arm Gets A Little Shorter

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Walden v. Fiore is a law-enforcement-related civil case decided yesterday by the U.S. Supreme Court.

Does a police officer conducting a seizure in one state subject himself to civil suit in another state (in this case, on the other side of the country) merely because the seizure will have a foreseeable effect in that other state due to the property owner's residence there?  No, said the Supreme Court unanimously.  Assertion of jurisdiction on such a tenuous basis denies the sued officer due process of law.
The Fourth Amendment forbids unreasonable searches and seizures.  The Supreme Court has said this generally requires a warrant to enter a home, with some exceptions.

It has long been established, as a general rule, that police may enter a home without a warrant if an occupant of the home with full authority over it invites them in.  As a matter of property law and generally understood social convention, of course you can go in if one roommate invites you.  You don't have to go around and get consent from every roommate.

This cohabitant rule might be considered an application of the general rule actually in the Constitution.  Such an entry is not unreasonable.  It might be considered an exception to the court-created warrant requirement.  Either way, it is well established.

Eight years ago, in Georgia v. Randolph, the Supreme Court made an exception.  Randolph, present at the time, objected to the entry of the police into his house, but his wife "readily gave" consent.  This was held to be a violation of the Fourth Amendment in a 5-4 decision.  "The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent."

What if the objector is not present?  That was the question in the case decided yesterday, Fernandez v. California.
I have, on more than one occasion, denounced the rule that evidence obtained through a search or seizure subsequently determined to be a violation of the Fourth Amendment must be suppressed as evidence.  The rule is not in the Constitution, and it is bad policy.  I am in good company in that view, including John Henry Wigmore and Benjamin Cardozo.

Whatever arguments may be made for such a rule when the police do the searching, it is nearly beyond belief that anyone but the most extreme crackpots would think that evidence should be suppressed in a criminal trial because a private party violated a privacy statute.  Yet statutes providing for such exclusion do exist.  Eugene Volokh at the Volokh Conspiracy has this post on a case in which, to paraphrase Cardozo, the child molester may go free, to molest again, because the brother-in-law blundered.

SCOTUS April Arguments

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The US Supreme Court's calendar for its last session of the term, April 21-30, is now available.

Cell phone search day is Tuesday, April 29.  Everyone attending the argument will have to check their cell phones at the door.  They are verboten.

Another Clueless Baldwin Rant

Before you blast someone, especially in public, it's a good idea to make sure you have your facts straight and are aiming at the right target.  The notorious Alec Baldwin is apparently unaware of this.  Nardine Saad reports in the L.A. Times that Baldwin tweeted this on Monday:

"Flying from Nassau, Bahamas 2 NY. TSA 'random selects' my 5 month old daughter 4 a pat down. I am not kidding. #travelinginUSisadisgrace."
The TSA is, of course, a part of the United States Department of Homeland Security.  The TSA does not do the airport screenings in the Bahamas for the obvious (to persons of sense) reason that the Bahamas are not part of the United States.  The esteemed (by many, though I can't fathom why) Mr. Baldwin was apparently unaware that he was in a foreign country being screened by an agency of a foreign government.  So his hashtag says traveling in the United States is a disgrace because of an incident that occurred outside the United States completely out of the control of the U.S. government.

Upon this being pointed out, his "correction" says, "I guess what I'm saying is: Traveling in the US is a pain in the ... ass."  Ms. Saad notes, "Still not the U.S., though, Alec."

Cellphone Searches

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The US Supreme Court today agreed to take up the cellphone search cases, Riley v. California and United States v. Wurie.  Lyle Denniston has this post at SCOTUSblog.
For many years, the U.S. Supreme Court has been pruning back one of the most repugnant notions of criminal procedure -- the idea that a clearly guilty criminal can suppress rock-solid reliable evidence of his crime on the basis of how it was obtained.  If someone violated a law in the process of obtaining that evidence, that person should be prosecuted or sued for the violation, but it is utterly irrelevant to the justice of the case at hand -- whether the defendant did or did not commit the crime of which he is accused.

On Monday, the U.S. Court of Appeals for the First Circuit in Boston rejected a novel attempt to expand the exclusion of evidence instead of retract it.  The home of "tax protestor" Charles Adams was searched by IRS agents with a search warrant.  Under U.S. v. Leon, a warrant itself is generally sufficient to defeat any claim of exclusion, except in highly unusual circumstances, but Adams made the creative claim that because the agents were armed and were not authorized to be armed, the evidence must be suppressed.

"Huh?" you might ask.  That's pretty much what the court said, but of course more judicially.

Split of Authority on NSA Phone Program

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Jennifer Smith reports for the WSJ:

The National Security Agency's bulk collection of data from phone companies is legal, a federal judge has ruled, dismissing a significant court challenge to the practice and setting the stage for a bigger legal battle over secret surveillance programs.

U.S. District Judge WIlliam H. Pauley III in Manhattan sided with the government in his decision Friday, calling the collection program a "vital tool" to combat terrorism and deeming it "the Government's counter-punch."

The ruling stands in conflict with a decision issued earlier this month in a separate case by a federal judge in the District of Columbia who said the program "almost certainly" violated the Constitution.
There are few counties in the country as solid liberal as Marin County, California, on the north end of the Golden Gate Bridge.  The county voted 74-23 for Obama v. Romney.

Yet even here, there are some crimes and criminals so horrific that a jury will unanimously find death to be the appropriate punishment.  We know from polls that when you focus people on the murders at the upper end of the heinousness scale, support for the death penalty rises even among those otherwise ambivalent.  Gary Klien reports for the Marin Independent Journal:

Calling him "an evil and disturbed man," a Marin County judge sentenced convicted serial killer Joseph Naso to death Friday for the murders of six women over a span of nearly two decades.

Judge Andrew Sweet said the evidence proved that Naso inflicted "abhorrent and repugnant levels of suffering and cruelty" on the victims, and humilitated them even more by meticulously documenting the crimes in his diaries and photographs.

The case is also Exhibit A for search conditions on probationers and parolees.  See United States v. Knights (2001).

Qualified Immunity and Reasonable Force

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The US Supreme Court today took up a case on qualified immunity for police officers who are sued for using force claimed to be excessive. The case is Plumhoff v. Rickard, No. 12-1117.  The Questions Presented page from the certiorari petition of Officer Plumhoff follows the break.

Stop, Frisk, and the New York Election

Is yesterday's ruling in the "stop and frisk" case, noted here, sufficient to dissuade New Yorkers from forgetting history and condemning themselves to repeat it?  Will they really vote to return to the horrifically high crime rates that preceded the policing reforms of Mayor Giuliani and Bloomberg by electing Bill de Blasio, who has made opposition to effective policing the centerpiece of his campaign?

The Republican candidate, Joe Lhota, is doing his best to head that off.  Jonathan Lemire and Colleen Long have this story for AP. 

The bad news is that Lhota has a forty percent deficit to make up.  If he pulls it off, it will be one of the greatest come-from-behind victories in American history.
In August, Federal District Judge Shira Scheindlin issued an injunction in the stop-and-frisk case.  AP described the ruling as "a stinging rebuke to a policy [Mayor Bloomberg] and the New York Police Department have defended as a life-saving, crime-fighting tool that helped lead the city to historic crime lows."

Judge Scheindlin came in for a rebuke of her own today.  Not only did the Court of Appeals stay her order, it went on to say:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities."); see also Canon 3(C)(1) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . ."), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge's improper application of the Court's "related case rule," see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.2

Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.

Whack!  The footnotes follow the break.

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