NV and 6th Cir. Agree, Fourth Amendment Does Not Protect Cell Location Data

Cell phone customers do not have a reasonable expectation of privacy in the records of cell tower usage kept by wireless carrier that reveal where phones were used.

United States v. Carpenter, 2016 BL 114989, 6th Cir., No. 14-1572, 4/13/16;
Taylor v. State, 2016 BL 127001, Nev., No. 65388, 4/21/16

    In Carpenter, the Sixth Circuit Court of Appeals ruled that police may rely on court orders rather than search warrants to gather information about a suspect's movements through phone records because customers do not have a reasonable expectation of privacy in the company's records of cell tower usage. The court distinguished content from "routing information" by saying "[c]ontent, per this distinction, is protected under the Fourth Amendment, but routing information is not." The monitoring of how communications travel "from point A to point B" is not protected.

    In Taylor, the Nevada Supreme Court ruled that customers do not have a reasonable expectation of privacy in the cell tower location records that reveal the general areas where the phones were used. This court determined that the information was considered business records that belonged to a third party. The court stated that "a warrant requiring probable cause was not required before obtaining that information" "because Taylor does not have a reasonable expectation of privacy in business records made, kept and owned by his provider."

http://www.bloomberglaw.com/public/desktop/document/UNITED_STATES_OF_AMERICA_PlaintiffAppellee_v_No_TIMOTHY_IVORY_CAR?1463070438

http://www.bloomberglaw.com/public/desktop/document/Taylor_v_State_No_65388_2016_BL_127001_Nev_Apr_21_2016_Court_Opin?1463582294

A Dog's Sniff In A Common Hallway Requires A Warrant

A warrant is required for police to use dogs to sniff in an apartment building's common hallway.

United States v. Whitaker, 2016 BL 113879, 7th Cir., No. 14-3290, 4/12/16

     The Seventh Circuit Court of Appeals ruled that the police violated the Fourth Amendment when they walked a drug-sniffing dog up to a suspect's door in a common hallway of an apartment building and used the dog's "alert" as probable cause to get a search warrant.

     This is the first time that a federal circuit court extended the dog-sniff rule elicited in Florida v. Jardines, 2013 BL 79684 (U.S. 2013) (92 CrL 781, 3/27/13), to include shared hallways in apartment buildings.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Whitaker_No_143290_and_143506_2016_BL_113879_7th_?1463068355

Parents Have 'Vicarious Consent' to Listen in to Kid's Conversations

As long as parents believe that eavesdropping is in the best interests of their child, they may use electronic devices to listen in on their children's conversations with third parties.

People v. Badalamenti, 2016 BL 106362, N.Y., No. 71, 4/5/16

     The New York Court of Appeals ruled that there is a 'vicarious consent' exception to the one-party consent wire-tapping laws, which ban outsiders from listening to a conversation unless one of the parties gives consent beforehand.

     The court ruled that "[t]here is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child's conversation of out a genuine concern for the child's best interests."

     The court followed the reasoning in the case of Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), which initially recognized the vicarious consent to federal wiretapping laws.

http://www.bloomberglaw.com/public/document/People_v_Badalamenti_No_71_2016_BL_106362_NY_Apr_05_2016_Court_Op

Spouses May Consent to Child Porn Searches on Home Computers

A wife had the legal authority to consent to the search and seizure of her husband's electronic devises that contained child pornography.

 

United States v. Thomas, 2016 BL 103144, 11th Cir., No. 14-14680, 4/1/16

     The Eleventh Circuit Court of Appeals ruled that the evidence found on his computer should not be suppressed because his then-wife shared authority and access over the home and the computers inside. Any search made prior to the prisoner revoking consent was within the Fourth Amendment.

     The court found it 'particularly significant that Thomas did not protect his Internet history from [his wife] by maintaining a separate login name and password or by encrypting his files.'

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Thomas_No_1414680_2016_BL_103144_11th_Cir_Apr_01_?1462392789

Knock-and-Talk Exception Does Not Allow Late Hour Entry Into Curtilage

Even under the Knock-and-Talk exception, police do not have license to enter the curtilage of a home if they subjectively plan to execute a warrantless arrest.

United States v. Lundin, 2016 BL 87041, 9th Cir., No. 14-10365, 3/22/16

     The U.S. Court of Appeals for the Ninth Circuit ruled that Police may not use the 'knock-and-talk' exception to the warrant requirement as a pretext to enter the curtilage of a home at four a.m. This indicates that the implied license to approach a front door of a home does not apply in the dead of night, and cannot be used by police if the officers are subjectively interested in arresting, rather than speaking with, the occupant.

     The court clarified that the knock-and-talk exception only applies during 'normal waking hours,' stemming from the normal implied license extended by the homeowner to visitors. The officers were outside of that, because they knocked on the door at four a.m., not at a normal hour for visitors.

     The court cited the US Supreme Court case, Florida v. Jardines, saying that the knock-and-talk is also limited to a specific purpose. When officers approach a house to execute a warrantless arrest, it is outside the social norm that is extended to members of the public to the front door.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Lundin_No_1410365_2016_BL_87041_9th_Cir_Mar_22_20?1462378081

Suggestion Not Custodial Seizure

A suspect was not in police custody, and did not need to be Mirandized, just because officers suggested that it would be a good idea for him to come with them and to be honest.

 

Spencer v. United States, 2016 BL 63376, D.C., No. 13-CF-0085, 3/3/16

     The D.C. Court of Appeals determined that a reasonable person in the suspect's shoes would have felt free to leave regardless of the officers' statements, because he "was still permitted to use his cell phone, he was never handcuffed, and he was told multiple times that he was not under arrest."

     Just because officers told the suspect that he "needed" to come with them to the station and later said "if  you want to walk out of here, you got to be honest" does not mean that the suspect was in custody. Because he was not in custody he did not need to be read his Miranda rights. The police did not assert authority to get his compliance, rather, it seemed that the suspect's decision to go with his girlfriend to the station was "precipitated by his desire to support his girlfriend."

http://www.bloomberglaw.com/public/desktop/document/Spencer_v_United_States_No_13CF0085_2016_BL_63376_DC_Mar_03_2016_/1?1458312772

Warrantless Blood Draw Justified By Broken Intoxilyzer

A blood draw performed without a warrant was justified by exigent circumstances after the officer attempted to use the police station's Intoxilyzer machine, but it was not functioning correctly.

 

State v. Arndt, 2016 BL 45450, Me., Sag-15-150, 2/18/16

     The deputy attempted four times to use the Intoxilyzer to obtain a blood-alcohol reading from a suspected drunk driver, but the machine was not functioning correctly. Because time was running out, as any alcohol in the blood stream was dissipating, the deputy had a paramedic take a sample of the suspect's blood.

     The Maine Supreme Court determined that the deputy's decision was reasonable, and did not go against Missouri vi McNeely, because 90 minutes had passed and he feared that the evidence would be lost because the Intoxilyzer was broken. See Missouri v. McNeely, 133 S.Ct 1552 (2013). 

http://www.bloomberglaw.com/public/desktop/document/State_v_Arndt_2016_ME_31_Court_Opinion?1457544612

Forced Departure Deemed 'Seizure' Due to Rough Handling.

When an officer roughly grabs a person, an order to depart becomes a Fourth Amendment seizure.

 

Salmon v. Blesser, 2015 BL 292438, 2d Cir., No. 14-1993-cv, 9/10/15

    The Second Circuit Court of Appeals said that, though the use of physical force to restrain someone and control their movements may or may not be reasonable under the circumstances, it still constitutes a seizure. Circuit precedent indicates that an order to leave, by itself, is not a seizure. The precedent even indicates that if the person is escorted by an officer as they leave, gives gentle physical guidance, or bars reentry, it is not a seizure.

    However, in this lawsuit the officer grabbed the plaintiff by the collar and twisted his arm behind his back. The court ruled that this was "intentionally restraining and controlling" the plaintiff's movements, and was elevated to the level of a Fourth Amendment seizure.

http://www2.bloomberglaw.com/public/desktop/document/Salmon_v_Blesser_No_141993cv_2015_BL_292438_2d_Cir_Sept_10_2015_C

Search Law Deemed Facially Unconstitutional

City of Los Angeles, California v. Patel et al

The U.S. Supreme Court held that L.A. hotel owners have a right to refuse to show their registries to the police when the police do not have a subpoena. L.A. Municipal Code §41.49 was determined to be facially unconstitutional under the Fourth Amendment. Because it falls within the administrative search exception to the Fourth Amendment, officers can still issues subpoenas for the hotel registries without needing probable cause.

The court emphasized that facial challenges are not procedurally barred categorically or “especially disfavored” even if they are rare. This allows for a challenge of the enforcement of this law, or other “patently unconstitutional” laws without having to wait for a set of facts to present itself. Or, one can challenge this law based on its unconstitutionality before the law is brought to bear against a party. When a facial challenge to a law is brought, “the proper focus is on searches that the law actually authorizes and not those that could proceed irrespective of whether they are authorized by the statute…” The focus of the Court is on what the law authorizes, and not what could happen without the law, or what happened in a specific case.

The Supreme Court’s decision also indicated that hotels are not a “closely regulated” industry, which would apply a more relaxed Fourth Amendment standard. The Court indicated that such a generally applicable law cannot make such a broad spectrum of business a “closely regulated” industry.

Because these searches were done without subpoenas they were “conducted outside the judicial process” and “are per se unreasonable under the Fourth Amendment-subject only to a few… exceptions.” Arizona v. Gant, 556 U.S. 332 , 338. One of those exceptions is for administrative searches, but even under that exception the subject is guaranteed an opportunity to obtain precompliance review.

Section 41.49 is constitutionally deficient under the “certainty and regularity” prong of the closely regulated industries test because doesn’t constrain police officer’s discretion regarding which hotels to search and under what circumstances. No standard is given in 41.49 to control the acts of the police officers under this exception.

http://www2.bloomberglaw.com/public/desktop/document/City_of_Los_Angeles_v_Patel_No_131175_US_June_22_2015_Court_Opini