Articles Posted in Search and Seizure

A couple of interesting items from John Wesley Hall’s excellent Fourth Amendment blog.

Without something to go on, the court declines to ascribe a supposed error in an address as a mere typo. Moreover, the affidavit fails to provide any nexus to defendant and the place to be searched, and the good faith exception is inapplicable. The court even finds the issuing judge failed to perform his or her judicial function in evaluating the affidavit. Andrews v. District of Columbia, 2019 D.C. App. LEXIS 336 (Aug. 15, 2019):

(1) The probable cause here was thin, and it was based on a CI’s credibility. The officer omitted important information to the CI’s credibility. This entitles him to at least a Franks hearing on remand. (2) A photograph of the motel room during the search shows the time as 25 minutes before the search warrant was issued. Whether the motel room clock was correct or not is a matter of speculation in light of the testimony, which the court credits instead. [What person has stayed in a hotel room where the clock was always correct? Nobody.] United States v. Clark, 2019 U.S. App. LEXIS 24332 (7th Cir. Aug. 15, 2019).

Sommers & Bohm, The Voluntariness of Voluntary Consent: Consent Searches and Psychology of Compliance. 128 YALE L. J. 1962 (2019).

Consent-based searches are by far the most ubiquitous form of search undertaken by police. A key legal inquiry in these cases is whether consent was granted voluntarily. This Essay suggests that fact finders’ assessments of voluntariness are likely to be impaired by a systematic bias in social perception. Fact finders are likely to underappreciate the degree to which suspects feel pressure to comply with police officers’ requests to perform searches.

These findings suggest that decision makers judging the voluntariness of consent consistently underestimate the pressure to comply with intrusive requests. This is problematic because it indicates that a key justification for suspicionless consent searches—that they are voluntary—relies on an assessment that is subject to bias. The results thus provide support to critics who would like to see consent searches banned or curtailed, as they have been in several states.

To get a search warrant for home surveillance equipment, the affidavit for the warrant has to show some inference or fact that there is, in fact, one to be found there. The mere fact they are a lot cheaper these days isn’t enough to get one. Foreman v. State, 2018 Tex. App. LEXIS 7264 (Tex. App. – Houston (14th Dist.) Aug. 31, 2018):

The parties have not cited, nor have we found, a case in which the Court of Criminal Appeals has determined under what circumstances a magistrate could reasonably infer that an electronic device exists in a particular location. This court has required specific facts to support an inference that those devices exist before we have allowed seizure or search of electronic devices pursuant to a warrant. This is demonstrated by our jurisprudence surrounding the searches of computers/cameras and cellphones.

In British football, a player can commit a foul which is technical and the other team gets a free kick, and everyone keeps playing.  More serious fouls can result in a yellow card (two in a game and you are off the field) or a red card which means immediate removal from the field.  Well, that’s now the rule for suppression motions in the military.

Why?  On May 20, 2016, there was a change to Mil. R. Evid. 311.  Now the military judge has to decide if the application of the exclusionary rule in the case of an unlawful search or seizure unless the military judge finds no deterrent effect of exclusion against the interests to be protected.

In a new appellate case from the Navy-Marine Corps Court of Criminal Appeals, United States v. Mottino, No. 201700153, 2017 CCA LEXIS 495 (N-M. Ct. Crim. App. Jul. 27, 2017) (unpub.), a three-judge panel of the Navy-Marine Corps CCA granted a prosecution appeal and reversed the military judge’s ruling suppressing evidence.  They ruled that way because the military judge failed in her analysis and application of the law by not conducting the balancing test under Mil. R. Evid. 311(a)(3).  This was a government appeal of the military judge’s ruling to exclude evidence.  So the court remanded the case back to the trial judge so the parties and judge do get a do-over.

MCIO ‘ware.  It still doesn’t protect your phone, especially if you give consent–but what the heck, it’s something.

NACDL Press Release: Nation’s Criminal Defense Bar Welcomes Passage by House of Representatives of the Email Privacy Act

Washington, DC (Feb. 6, 2017) – Today, the House of Representatives passed the Email Privacy Act (H.R. 387). This bill is a long overdue update of the Electronic Communications Privacy Act (ECPA), a bill passed in 1986 that governs the treatment of electronic communications. The Email Privacy Act establishes that law enforcement officers must obtain a warrant to access the content of most electronic communications and cloud-stored content from third-party providers and eliminates the arbitrary rule that would allow the government to obtain emails older than 180 days with a subpoena. The bill passed overwhelmingly in the last Congress 419-0.

Check the warrant, or in the military the search authorization.

The recent decision of the Army Court of Criminal Appeals in a government appeal tells you why it’s important to check the warrant.

In United States v. Gurzynski, the court had before it a government appeal of a military judge’s decision to suppress evidence of a computer media search.

On 20 May 2016, the President, exercising his powers under UCMJ art. 36, signed an executive order amending the Manual for Courts-Martial.  Changes to the rules of evidence are included.  It was a change to Rule 311 that has draw significant attention and discussion among the UCMJ literati.  Basically, a military judge grants suppression when

“exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”

Mil. R. Evid. 311(a)(3) (2016).

How many times do we see the private search as an issue.  The upset spouse searches the computer to find evidence of infidelity, the Sailor’s friend or roommate comes across contraband CP on a computer and looks further, etc., etc., etc.

A responsible law enforcer would take the information to get a search warrant or command search authorization.  But that doesn’t always happen.  What does happen is that the law enforcer or someone in command goes and looks for themselves.  The question then becomes whether that is a search or is it a continuation of a private search.  If a private searcher shows the law enforcer exactly what they saw and that alone, there may not be an unlawful search.  But what happens if the law enforcer does more than strictly replicate what the private searcher did.  So Orin Kerr has some information for us in the Washington Post.

[T]he 11th Circuit handed down a new computer search decision,United States v. Johnson, that both sharpens and deepens the circuit split on how the private search doctrine of the Fourth Amendment applies to computers. Johnson isn’t a likely candidate for Supreme Court review. But it does leave the private search doctrine in computer searches ripe for Supreme Court review in other cases working their way through the courts.

Several relevant items for you this weekend.

Orin Kerr has this post at The Volokh Conspiracy. In part:

Computer searches usually happen in two stages. Agents take the computer, make a mirror image copy of its hard drive on a government storage device, and then search the image. Officers do this to ensure the integrity of the original data. Searching can alter the contents on the computer, so working from a copy preserves the original.

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