Search & Seizure Tag Archives — Court-Martial Trial Practice Blog

More searching privacy

October 16, 2010 | The Law Office of Philip D. Cave

Courtesy of fourthamendmentlaw.com here is an interesting summary of search law from the Oregon Federal Public Defender.

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.

A Randolph nuance

September 18, 2010 | The Law Office of Philip D. Cave

Courtesy of FourthAmendment.com here is a good case to know about.

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 LEXIS 19220, 2010 FED App. 0604N (6th Cir. September 13, 2010) (unpublished).

Back to real law

September 8, 2010 | The Law Office of Philip D. Cave

Here is an interesting technology case from the Third Circuit as reported by the Wall Street Journal blog.

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 internets

August 29, 2010 | The Law Office of Philip D. Cave

Two items relevant to the internet, privacy, and the Fourth Amendment. Orwell would be . . .

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.

We know close enough when we see it

July 5, 2010 | The Law Office of Philip D. Cave

FourthAmendment.com has this post:

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.

CAAF search and seizure case

June 21, 2010 | The Law Office of Philip D. Cave

United States v. Huntzinger.

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.

Post CAAF

May 29, 2010 | The Law Office of Philip D. Cave

Garcia v. Commandant, USDB, No. 10-3027 (10th Cir. May 27, 2010).

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.

City of Ontario v. Quon

April 19, 2010 | The Law Office of Philip D. Cave

SCOTUSBlog has a podcast of today’s oral argument.

Digital privacy?

April 18, 2010 | The Law Office of Philip D. Cave

SCOTUSBlog reports that:

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

Search & seizure

April 1, 2010 | The Law Office of Philip D. Cave

Here’s a case from New Jersey of some interest, Stengart v. Loving Care Agency, Inc., 2010 N.J. LEXIS 241 (March 30, 2010).

[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.