Mediaboss Marketing

With law school exam season finishing up, heres a new Fourth Amendment decision with facts that seem straight from a law school exam: United States v. Camou, authored by Judge Pregerson. In the new decision, the Ninth Circuit suppressed evidence from a 2009 search of a cell phone taken from a car incident to arrest at the border. The new ruling might not be the final word in the case. But the court does decide an important question along the way: The Ninth Circuit rules that if the police have probable cause to search a car under the automobile exception, they cant search cell phones found in the car.

I. The Facts

In 2009, officers arrested Camou at a border inspection checkpoint for hiding an undocumented immigrant in his truck. Minutes after the arrest, Camous phone rang several times from a number known to be from one of Camous co-conspirators. When Camou invoked his right to remain silent, officers decided to search the phone for evidence without a warrant. The phone search occurred 80 minutes after Camous arrest. The officer who searched the phone first searched through the call logs, then turned to the videos and photos. The officer scrolled through about 170 photos and saw that about 30 to 40 were child pornography. The officer stopped looking through the phone at that point and alerted authorities about the child pornography. Four days later, a warrant was obtained to search the cell phone for images of child pornography, leading to child porn charges against Camou.

The issue before the court is whether to suppress the fruits of the initial warrantless phone search as a violation of the Fourth Amendment. The Ninth Circuit rules that the cell phone search violated the Fourth Amendment and that the evidence must be suppressed.

II. The Ruling

Judge Pregersons analysis has five steps.

First, the search cannot be justified as a search incident to arrest because it occurred too late after the arrest and after too many intervening events had occurred. Eighty minutes had elapsed, and Camou and his co-defendants had been arrested, processed, and brought to interview rooms. According to Pregerson, that made the search too far removed from the initial arrest for the search-incident-to-arrest exception to apply.

Second, the exigent circumstances doctrine cannot apply because Riley v. California establishes that exigent circumstances generally wont justify a cell phone search and in any event, the scope of the search went beyond the exigency.

Third, the automobile exception cannot apply because the automobile exception does not apply to cell phones. This is an important legal ruling. Here, the Ninth Circuit extends the cell phones are different rationale of Riley to the context of automobile searches. This is an interesting and unsettled question I blogged about before, so its worth pausing to give a taste of Pregersons reasoning:

Given the Courts extensive analysis of cell phones as containers and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception. Just as [c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestees person, so too do cell phones differ from any other object officers might find in a vehicle. Id. at 2489. Todays cell phones are unlike any of the container examples the Supreme Court has provided in the vehicle context. Whereas luggage, boxes, bags, clothing, lunch buckets, orange crates, wrapped packages, glove compartments, and locked trunks are capable of physically holding another object, see Belton, 453 U.S. at 460 n.4, [m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse, Riley, 134 S. Ct. at 248889. In fact, a cell phone search would typically expose to the government far more than the most exhaustive search of a house. Id. at 2491 (emphasis in original).

See the original post:
Volokh Conspiracy: Cell phones exempt from the automobile search exception, Ninth Circuit rules

The Eighth Circuit Court of Appeals has dismissed a Rapid City police officer's appeal, clearing the way for a trial on a former landfill employee's claim that the officer violated his Fourth Amendment rights four years ago.

City Attorney Joel Landeen said Wednesday that the city supports Lt. Peter Ragnone 100 percent and is prepared to go to trial. Ragnone was the detective assigned in 2009 to investigate allegations of fraud at the Rapid City landfill.

As a result of Ragnone's grand jury testimony, scale house attendant Randall Meidinger was indicted on 2010 for forgery and grand theft. The city fired Meidinger in 2009 after Ragnone reported that Meidinger had confessed to cutting a garbage hauler breaks on landfill fees.

A jury acquitted Meidinger of all charges in 2011. A civil suit brought by the city against Meidinger was later dismissed.

Ragnone is the only defendant left in a federal lawsuit filed in 2012 by Meidinger.

In September, U.S. ChiefDistrict Judge Jeffrey Viken dismissed Meidinger's claims against Mayor Sam Kooiker, former Police Chief Steve Allender and former landfill supervisor John Leahy.

Viken also rejected Meidinger's claim that Ragnone violated the 14th Amendment by conducting a reckless investigation and falsified evidence against him,but the judge said a jury should decide if Ragnone's testimony was credible when he told the grand jury that Meidinger had confessed and described a waste material as being only sawdust.

"At this point, we don't believe Peter Ragnone did anything wrong," Landeen said.

Ragnone's appeal of Viken's decision delayed the progress of the District Court case until this week.

Meidinger's legal team welcomed the appellate court's decision.

Go here to read the rest:
Court dismisses city's appeal in Meidinger suit

Super Funny Japanese Parody of TSA Airport Security Hilarious.mp4
http://adf.ly/70849/mcnwithfullapprove Fourth Amendment to the United States Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, against...

By: funny show

Read more:
Super Funny Japanese Parody of TSA Airport Security Hilarious.mp4 - Video

Fourth Amendment Commercial

By: Alexandra Hollander

Continued here:
Fourth Amendment Commercial - Video

On Monday, the Ninth Circuit held oral argument in Smith v. Obama, a Fourth Amendment challenge to the Section 215 telephony metadata program. You can watch a video of the argument here. The panel consisted of Judges Hawkins, McKeown, and Tallman. This was the third argument by a federal circuit involving a challenge to the telephony metadata program. The others are the Second Circuit and the DC Circuit, neither of which has handed down a ruling yet.

To win the case before the Ninth Circuit, the plaintiff needs to win on three basic questions: 1) did the plaintiff have standing; 2) did a search occur; and 3) was the search constitutionally unreasonable. There was significant questioning on standing and a lot on what is a search, but very little on reasonableness. On the whole, I think that emphasis is probably a good sign for the government. With that said, Im not sure which way the case will come out. Judge Tallman seemed pretty likely to vote for the government on either or both of the first two questions. I had less sense where Judges Hawkins and McKeown might come out.

I want to focus on an interesting question that Judge McKeown asked Thomas Byron, counsel for the government defendant: When applying the reasonable expectation of privacy test, how do we know what society expects when it comes to a big surveillance program like Section 215s program? Byron gave what I think is the correct doctrinal answer: Smith v. Maryland tells us as a matter of law that people have no reasonable expectation of privacy in pen register data from their phones, and there is nothing in Smith that suggests that scale or aggregation can make any difference. Although thats a good doctrinal answer, I think theres a historical explanation that is more satisfying. I cover the historical explanation in this forthcoming article, starting at page 11, and I thought I would give a basic outline here.

As I explain in the article, the original design of Justice Harlans two-part Katz test was to summarize the two basic requirements of establishing Fourth Amendment rights: first, that the intrusion was into the kinds of spaces that the Fourth Amendment protects, like homes or cars or (in Katz) telephone booths; and second, that the person had not openly exposed his protected space to outside observation. The first part was labeled the objective test, as it rested on whether the space invaded was the kind of space that merited Fourth Amendment protection in a general sense; and the second test was labeled the subjective test, as it hinged on whether the person took steps to hide the space from outside observation, manifesting an intent to keep it private in those specific circumstances.

The rule that you cant have any Fourth Amendment protection in what you share with a third-party was originally part of the subjective test. By revealing your information to a third party, the thinking ran, you no longer manifested an intent to keep your information private and gave up your rights in that information. The government therefore could get it from the third party without implicating your rights. Although that was the original design of Harlans test, later opinions of the Court misunderstood this point. Later decisions, including Smith v. Maryland, simply assumed that the test labeled subjective was an inquiry into what a person actually expected to happen. Smith had to fit the traditional rule that a person has no Fourth Amendment rights in what they disclose to third-parties somewhere, however, so the rule ended up being squeezed artificially into the reasonable expectation of privacy test instead. The result has confused law students for decades: We get the strange-seeming announcement that theres no reasonable expectation of privacy in circumstances when a lot of people probably think it feels pretty reasonable to them.

Why does all this matter? I think it matters because it shows that Judge McKeowns question is based on the Smith courts accidental rephrasing of the third-party rule. Understanding the accident explains why the question that seems really difficult at first blush ends up having a simple answer. The reason the government does not violate the Fourth Amendment rights of a telephone user when collecting metadata from the phone company should have nothing to do with what society expects. Instead, the reason is that if you knowingly disclose information to a third party, you are not manifesting your subjective expectation of privacy in that information and dont have any way to control it under the Fourth Amendment as a matter of law. From that perspective, we dont need to know what society expects, or what privacy policies say, to apply the third-party doctrine. What society expects is irrelevant, as the doctrine was originally and properly rooted in the subjective test instead of the objective test.

To be clear, the doctrinally correct result Byron offered brings you to the same result in the end. If you say that Smith v. Maryland requires lower courts to say that there is no reasonable expectation of privacy in pen register information as a matter of law, you get to the same result that no search has occurred. But I hope its at least a little bit illuminating to see how we got here, and in particular to see why applying Smith does not call for courts to make first-principles inquiries into societal expectations.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

Go here to read the rest:
Volokh Conspiracy: Ninth Circuit hears NSA program challenge