Mar 042013
 March 4, 2013  Posted by  Court

Two opinions issued by courts today:

In United States v. Wahchumwah, the Ninth Circuit Court of Appeals affirmed a lower court ruling that an undercover agent’s warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect does not violate the Fourth Amendment. EFF had filed an amicus brief in that case that did not persuade the panel:

Finally, we reject amicus Electronic Frontier Foundation’s contention that the audio-video recording here was similar to the prolonged visual surveillance in United States v. Jones, 132 S. Ct. 945 (2012). The Jones Court rested its holding on the government’s physical trespass on Jones’s property, rather than the government’s prolonged surveillance.2 Id. at 949. Moreover, the GPS device in Jones enabled constant surveillance of a vehicle over a period of twenty-eight days, id. at 948, whereas the recording by Agent Romero lasted for only a few hours and for no longer than Romero remained an invited guest in Wahchumwah’s home.

In a footnote, they add:

Although amicus Electronic Frontier Foundation argues that Wahchumwah can show a Fourth Amendment violation under the trespass theory articulated in Jones, Wahchumwah did not raise this argument in the briefs he filed with our court. Generally, arguments not raised in a
party’s opening brief are deemed waived, Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999), and the court will not consider arguments raised only in amicus briefs. See Chaker v. Crogan, 428 F.3d 1215, 1220 (9th Cir. 2005). Because Wahchumwah has not argued that a Fourth Amendment violation under the trespass theory articulated in Jones occurred in this case, that issue is not properly before us, and we express no opinion concerning it.

Meanwhile, over in the 10th Circuit, in United States v. Barajas, the court affirmed a lower court ruling admitting evidence from GPS pinging obtained under a warrant, even though the affidavit supporting the probable cause warrant neither asked for, nor directly addressed any request for GPS pinging. It appears to be another one of those cases where the good-faith exception enables the court to avoid deciding whether evidence should be suppressed.

I’m not sure I really follow all of their reasoning, but I found this part of the opinion interesting:

Mr. Barajas suggests the agents knew or should have known the order was invalid because they knew (1) that GPS data is not typically intercepted pursuant to a wiretap order; and (2) that the affidavit did not request GPS data. Aplt. Br. 30; Aplt. R. Br. 30. We disagree.

First, we have no reason to believe the government cannot obtain GPS data through a wiretap order. Assuming pinging is a search, the burden to obtain GPS data would be no greater than a wiretap—probable cause. But even if Mr. Barajas is correct, he cannot show the agents were on notice of this fact because the law on electronic surveillance is very much unsettled. See In re Application of U.S. for an Order Directing a Provider of Electronic Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 310 n.6, 311 (3d Cir. 2010) (noting the debate among courts on the procedure for electronic surveillance and taking “no position whether a request for GPS data is appropriate under a § 2703(d) order”); see also Henderson, 595 F.3d at 1202 (officers acted in good-faith when relying on an affidavit based on a standardized form the court later determined did not establish probable cause); United States v. Rowland, 145 F.3d 1194, 1207 (10th Cir. 1998) (applying the good-faith exception to an anticipatory warrant when the law was unsettled). The agents’ knowledge of the gap between the affidavit and the order gives us more pause, but we cannot say this gap was intentional.

Yet another reason for Congress to resolve some of these controversial questions.

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