Washington State Ruling Requires Police to Inform Resident of Right to Deny Entry

Police must inform residents of their rights before entering their home if they are invited in after requesting permission, preventing the circumvention a warrant requirement.

State v. Budd, 2016 BL 159792, Wash., No. 91529-6, 5/19/16.

    The Supreme Court of Washington reaffirms an earlier state decision that police conducting a “knock and talk” must give residents a warning of their rights to refuse entry or the scope of searches conducted by police before, not after, entering the home to establish the consent for entry. The court emphasized the necessity of the warnings because police knocking on your door is “inherently coercive,” even without a warrant. The ruling extended the requirement to not only the immediate area around the doorstep of a home, but also to the yard as well.

    Washington is one of the few jurisdictions in the country that require this type of warning. Utah, however, does not have similar requirements to provide a warning to establish consent when performing a “knock and talk” search. To the contrary, the lack of knowledge of the ability to refuse entry into a home by an officer does not establish involuntary entry. See State v. Fretheim, 358 P.3d 336 (2015 UT App 197). 

http://www.bloomberglaw.com/public/document/State_v_Budd_No_915296_2016_BL_159792_Wash_May_19_2016_Court_Opin

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

Probationers Get Right To Digital Privacy

The government may not search a probationer's mobile phone based only on the fact that the person agreed to allow the government to search his "property" at any time.

 

United States v. Lara, 2016 BL 64094, 9th Cir., No. 14-50120, 3/3/16

      In this case, the Ninth Circuit Court of Appeals confirmed their view that a probationer's acceptance of specific search terms in a probation agreement does not, by itself, justify otherwise unconstitutional searches. The court also extended some digital privacy rights to nonviolent probationers. The court said that "there is a limit on the price the government may exact in return for granting probation."

     Without specific mention of digital devices in a probation agreement, ambiguous terms will not be read to include mobile phones and the data therein. Even a search of a probationer needs to be reasonable. That is determined by balancing the degree of intrusion against the degree to which the search is needed to advance a legitimate government interest.

     The court here indicated that even though the probationer's privacy interest was diminished, and the government had a clear interest in combatting recidivism, looking through the nonviolent probationer's phone was not justified just because they missed a meeting.

 http://www.bloomberglaw.com/public/desktop/document/UNITED_STATES_OF_AMERICA_Plaintiff_Appellee_v_PAULO_LARA_BRO_1_De?1457714431

No Need For Reasonable Suspicion for Search of Probationer

Agents of law enforcement are not required to cite reasonable suspicion before searching a probationer under standard probation.

 

United States v. Tessier, 2016 BL 45438, 6th Cir., No. 15-5284, 2/18/16

     The Sixth Circuit Court of Appeals ruled that, as long as the standard probation form that consents to searches "without a warrant" and "at any time", law enforcement officials do not need reasonable suspicion to search a probationer.

     Probationers still have some protections, but are not entitled to the same absolute liberties, guaranteed by the Fourth Amendment, as people not on probation. In this case, officers were acting within a operation searching the residences of every known sex offender in the county. The court used a "totality of the circumstances" analysis and said that because the search conditions in this case advanced the two primary goals of probation - rehabilitation and protecting society from future criminal violations -  the intrusion was reasonable.

     The court said that it did not need to answer the greater question of "whether a search of a probationer's home that has no legitimate law enforcement or probationary purpose-such as a search with no purpose other than to harass the probationer-would be reasonable under the Fourth Amendment."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Tessier_No_155284_2016_BL_45438_6th_Cir_Feb_18_20?1457129207