Archive | Fourth Amendment

Ninth Circuit Considers Super-En-Banc for Comprehensive Drug Testing

I haven’t blogged recently about the Ninth Circuit’s blockbuster computer search and seizure decision in United States v. Comprehensive Drug Testing, although not because it hasn’t been on my mind: Among computer crime law folks, it’s topic #1 these days. Indeed, since the en banc decision was handed down, it seems that every conference and informal gathering in the field eventually morphs into trying to figure out what the majority was smoking opinion means, how judges should comply with it, how law enforcement should respond to it, and whether and how long it will be until it is overturned.

Closer to home, I had to make a quick decision whether to put the opinion into the 2nd edition of my computer crime law casebook, which is at the printers right now. I ended up deciding not to include it, as I think the odds favor it being overturned within a year or two. I figured it was better to include the opinion in a supplement in the meantime rather than include it in the main book, as you can easily take a case out of a supplement but not the book itself.

But exactly how the case was going to be overturned is another matter. The most remarkable parts of the opinion are just lists of new rules, announced without any apparent authority or even a case or controversy. We don’t yet know if DOJ plans to file a cert petition in the case, although the procedural posture is tricky: DOJ could try to challenge some other aspect of the case and get that part scrapped in the process, but it’s hard to mount a direct challenge to what seems to be dicta. The main alternative for DOJ would be to let this case stand, let the system [...]

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District Judge Concludes E-mail Not Protected by Fourth Amendment (But See Correction)

The case is In re United States, — F.Supp.2d —-, 2009 WL 3416240 (D.Or. 2009), by District Judge Mosman. The issue in the case is whether the government must notify a person when the government obtains a search warrant to access the contents of the person’s e-mail account. Judge Mosman concludes that Rule 41 and 18 U.S.C. 2703(a) require the notice to be served on the ISP, not the account holder, as a statutory matter. He then rules that there is no constitutional requirement of notice to the account holder because the Fourth Amendment does not apply to the e-mails under the third-party doctrine. [CORRECTION: SEE BOTTOM OF POST] Here’s the relevant analysis:

The Fourth Amendment protects our homes from unreasonable searches and seizures, requiring that, absent special circumstances, the government obtain a search warrant based on probable cause before entering. This is strong privacy protection for homes and the items within them in the physical world.

When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, “private” information is actually being held by third-party private companies.

This feature of the Internet has profound implications for how the Fourth

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Fourth Amendment Rights in a Storage Unit Obtained Using a Stolen Identity

Today the Tenth Circuit handed down a very interesting Fourth Amendment decision, United States v. Johnson, on whether an individual can have a reasonable expectation of privacy in a storage unit rented with a stolen identity.

As I understand the facts of the case, the defendant Johnson asked his girlfriend to rent a storage unit using a fake name where he could store his guns. Johnson and his girlfriend had possession of the driver’s license of a woman named Haroldsen — the license had been stolen in a burglary, perhaps, although not necessarily, by Johnson — and Johnson asked his girlfriend to use Haroldsen’s license to rent the storage unit. (Presumably the idea was that this would make it difficult to connect the stored items with Johnson.) Johnson’s girlfriend went to the storage business posed as Haroldsen, and she paid cash to rent the unit. The police ended up searching the storage unit without a warrant and they found Johnson’s guns. Johnson admitted that he had stored his guns there, leading to charges that Johnson was a felon in possession of the guns.

The question in the case was whether Johnson had Fourth Amendment rights in the storage unit given that the unit had been obtained using Haroldsen’s stolen identity. In an opinion by Judge Ebel, the Tenth Circuit ruled that Johnson did not have Fourth Amendment rights in the unit because Johnson had directed his girlfriend “to enter into the rental agreement using Haroldsen’s stolen identity.” The opinion begins with a rather enjoyable discussion of the nature of the reasonable expectation of privacy test, and it then focuses on the fact that Johnson obtained the rental unit by via unlawful identity theft. The court concludes that this fraud in the obtaining of the unit diminishes the reasonableness of [...]

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A Response to Delahunty’s “The Fourth Amendment Goes to War”

In a forthcoming essay, The Fourth Amendment Goes to War, Professor Robert J. Delahunty defends the October 2001 OLC opinion he and John Yoo wrote while at the Office of Legal Counsel on how the Fourth Amendment applies in the war on terror. The opinion concluded that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists,” and that if it did apply, the courts generally would hold the use of the military domestically against foreign terrorists to be constitutionally reasonable without a warrant because the government interest in protecting the nation would outweigh the relevant privacy interests.

Delahunty argues that the opinion is correct, and he concludes by inviting responses:

Despite the shrill criticisms of the opinion, I have yet to see a convincing refutation of it. Let that be a challenge to those of you who think otherwise. I am open to persuasion, as you should be. Let Law and Reason decide.

I think the OLC opinion’s Fourth Amendment analysis is quite weak, so I thought I would take up Delahunty’s offer and explain why I think so. I will first summarize his arguments, and then offer my own response.

I. Professor Delahunty’s Arguments

Delahunty’s basic claim is that the Fourth Amendment applies differently in times of war. There are two basic paradigms for interpreting the Bill of Rights, Delahunty contends: the law enforcement paradigm and the war paradigm. The Bill of Rights as a whole applies differently at war, and after 9/11, we were at war. The OLC opinion properly “read the Fourth Amendment in that light.”

Delahunty bolsters this case by invoking the “special needs” doctrine of Fourth Amendment law that allows warrantless searches and seizures for legitimate government purposes outside of law enforcement if the searches and seizures [...]

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Chief Justice Roberts Dissents from Denial of Fourth Amendment Case — Again

Chief Justice Roberts published a dissent from denial of certiorari today in a Fourth Amendment case, Virginia v. Harris, that is interesting in part because it resembles his dissent from denial of certiorari last year in Pennsylvania v. Dunlap (a.k.a. the “tough as a three­ dollar steak” opinion).

In both Harris and Dunlap, a state Supreme Court imposed a Fourth Amendment rule that a single source of suspicion did not allow the police to take an important investigative step. In Dunlap, the Pennsylvania Supreme Court had ruled that the officer who saw a “single isolated transaction” that he strongly believed was a drug buy did not have probable cause to make an arrest based on it. In Harris, the Virginia Supreme Court ruled that an officer who received a report of a drunk driver did not have reasonable suspicion to stop the car based on it. In both cases, Chief Justice Roberts, joined by one other Justice, wrote an opinion saying that the Court should have taken the case.

It’s too early to say whether these dissents suggest that Chief Justice Roberts is particularly interested in Fourth Amendment cases, or whether they mean something else. But I found the similarity between Harris and Dunlap pretty interesting. [...]

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Looking Back at Frank v. Maryland (1959)

I recently came across a fascinating Fourth Amendment decision, Frank v. Maryland, 359 U.S. 360 (1959), that allowed warrantless health and safety inspections of homes. I had never read Frank before, as the case is only of historical interest: It was overruled just 8 years later by Camara v. Municipal Court, 387 U.S. 523 (1967). But the Frank case is pretty interesting for an argument the Court makes that I suspect will send a chill up the spine of any civil libertarian — or, for that matter, any libertarian, period.

Frank was arrested for refusing to let Baltimore health inspectors enter his basement to look for the source of a rat infestation. Frank argued that the warrantless entry would have violated his Fourth Amendment rights, so he had a constitutional right to refuse it. The Court held 5-4 that Frank did not have a Fourth Amendment right to refuse to consent to the search by the health inspectors. Justice Frankfurter wrote the majority opinion, and he made three arguments for why warrantless health and safety inspections at home do not offend the Fourth Amendment (applied to the states through the Fourteenth Amendment). First, such inspections were minimally intrusive. Second, such inspections had “antecedents deep in our history,” including at the time of the Framing, and yet they had not been thought to be constitutionally problematic.

But the third argument struck me as the most noteworthy: Justice Frankfurter made an explicit appeal to the needs of progressive reforms that at the time were a paramount concern driving the safety inspections. Remember, at the time this case was being briefed and argued, entire neighborhoods just blocks from the Supreme Court were being razed to replace the disease and squalor of the slums with the benefits of high-rise apartment [...]

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Probable Cause and Internet Accounts in United States v. Frechette

Today the Sixth Circuit handed down a case on probable cause to search a home based in large part on a subscription to a child pornography website: United States v. Frechette. I blogged in detail about this issue a few years ago, so I wanted to cover the latest case, as well.

The defendant, Douglas Frechette, had a previous criminal history and was listed in the Michigan State Sex Offender Registry as living at a particular address in Muskegon, Michigan. Bank and drivers license records confirmed that he lived at that address. One day, Frechette created a PayPal account in his own name, linked to his own bank account, and from an IP addressed assigned to his home purchased a one-month subscription for $80 to a child pornography website, HTTP:\\[redacted]” The purchase of the one-month subscription was the only purchase Frechette ever made on his PayPal account. The opinion indicates that the homepage of the website was extremely clear that it was entirely about very disturbing images of child pornography. Visitors to the site were “welcomed” with very graphic and patently illegal images.

It is unclear how long the site stayed on line. A little more than a year after Frechette’s purchase, however, agents learned of the purchase and confirmed from the sex offender registry that Frechette still lived at the same address in Muskegon. The agents applied for a warrant to search Frechette’s home based on that information. A search of of the home led to the discovery of child pornography images and a confession by Frechette. That then led to charges against Frechette, and a motion to suppress the images and the confession as a fruit of an allegedly unlawful search.

The question in the case was whether the magistrate judge had a “substantial basis” to [...]

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Police May Not Even Temporarily Detain a Person Simply Because He’s Openly Carrying a Handgun,

if such open carrying in that place is generally not a crime. So holds St. John v. McColley (D.N.M. Sept. 8, 2009), which grants summary judgment to the seized person on his Fourth Amendment claim:

Defendants lacked a justifiable suspicion that Mr. St. John had committed a crime, was committing a crime or was about to commit a crime. Indeed, Officer McColley conceded that he did not observe Mr. St. John committing any crimes and that he arrived at the theater with the suspicion that Mr. St. John was merely “showing a gun”, which is not illegal in the State of New Mexico. Nor was there any reason to believe that a crime was afoot. When they found him, Mr. St. John was peacefully sitting through the previews for his second movie of the day. Officers had no reason to believe that Mr. St. John had been, was, or would be involved in any criminal activity whatsoever. [Footnote: Defendants contend that Mr. St. John was about to commit a crime because, had he refused to comply with their request that he leave the premises, he would have been trespassing. If accepted, this argument would significantly erode Fourth Amendment protections. Because the Court finds no jurisprudential support for Defendants’ novel contention, no further discussion of it is necessary.] …

Moreover, Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention. For example, in United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000), the Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure. In Ubiles, officers seized Ubiles during a crowded celebration after they received a tip that

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