IT Search and Seizure Litigation Updates

Lora Bentley

In August, the U.S. Court of Appeals for the Ninth Circuit determined that law enforcement does not need a warrant to place a GPS tracking device on a vehicle that's sitting in a publicly-accessible driveway. The court reasoned that the defendant in the case did not have a legitimate expectation of privacy in his driveway. The driveway was

open to strangers, such as delivery people and neighborhood children, who could wander across it uninvited.

In September, a three-judge panel of the U.S. Court of Appeals for the Third Circuit decided that a warrant is not necessary to obtain historic-or stored-location data from cell phones as long as law enforcement can articulate

specific ... facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.

Privacy advocates like the Electronic Frontier Foundation are concerned about both decisions, but in December they celebrated a victory of sorts. That's when the U.S. Court of Appeals for the Sixth Circuit ruled that law enforcement officials do need a warrant to seize and search the contents of e-mail stored by service providers.


But this week, the case for individual privacy took yet another hit, and cell phones are again the target. Ars Technica reported Tuesday that the California Supreme Court has decided that a warrant is not necessary for law enforcement to search a suspect's cell phone at the time of his arrest. The court reasoned that the Fourth Amendment did not apply to the text messages on the defendant's phone because the phone was "immediately associated with [the suspect's] person."


As always, watching whether and how the U.S. Supreme Court picks up these issues and runs with them will be interesting.

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