Police Prosecutor Update  September 2010 Issue No. 226 

A resent federal Court Of Appeals case offered a look at the authority a 911 call can bestow on police. By the time 911 dispatcher pick up the phone to answer a call, the connection had been broken.The dispatcher called back, but no one answered. Police were alerted, and three officers arrived at the house from which the call was made. They entered without permission and questioned the occupants,including the husband and his wife.They learned that in an heated argument the husband had bumped the wife, who than called 911.The wife said that sh was not hurt and asked the police to leave, but they refused. The husband was arrested for domestic battery. The wife refused to cooperate, and the criminal case was dismissed. The husband filed a civil rights lawsuit against the police and county.

The husband alleges that the police violated his rights by entering the house without permission and refusing to leave as soon as the wife asked them to go. The courts disagreed. A 911 call provide probable cause for entry, if a call back go unanswered. The 911 line is suppose to be used for emergencies only. The lack of a answer on the return of an incomplete emergency call implies that the caller is unable to pick up the phone- because of injuries, illness (for example, a heart attack) or threats of violence. Any of the three possibilities supplies both probable cause and an exigent  circumstance that dispenses with the need for a warrant.There are of course other possibilities. Perhaps a child dialed 911 by mistake, or perhaps the ringer might have been set to silence so the phone did not alert anyone to an incoming call from the 911 dispatcher. But probable cause just mean a good reason to act. It dose not mean certainty, or even more likely than not, that a crime has been committed or a medical emergency is ongoing

Although the wife ask the police to leave, officers who had probable cause don't have to cancel an investigation on request. The fourth amendment dose not contain a "least - restrictive- alternative" rule. Nor did the wife's statement that she was unharmed establish that there was no need for further inquiry.

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A recent Court Of Appeal opinion upheld the use of investigatory subpoenas in suspect child solicitation cases over the internet. A detective used the yahoo! Internet instant messaging (IM) services, posing as a fourteen year old girl. Without going into all the details, the detective had several IM messages of a sexual nature with the defendant of a particular user name. The detective than caused to be issued to Yahoo!'s a subpoena seeking the account information for that user name.  Each computer attached to the internet has an internet protocol address, or IP address which identifies its location to the internet network. Yahoo!'s return on the subpoenas indicated that whoever logged into the used name in question did so from a computer with a particular IP address. The detective than caused another subpoena to be issued to another internet service provider (ISP), seeking the account information connected with that IP address in question. In response to this subpoena, the ISP provided the subscriber's information associated with that IP address as the defendant at a particular street address. The detective then obtained a search warrant.

The defendant argued that there should be a privacy interest in the subscriber information of an individual's internet account. There is not. Our supreme court had recognized that a prosecutor can secure information from a third party, such as an ISP, by issuance of a subpoena duce tecum that is (1) relevant in purpose; (2) sufficiently limited scope, and (3) specific enough that compliance will not be unreasonably burdensome.

In short, there is no privacy interest in internet subscriber information, and it can be obtained through a properly issued third party investigatory subpoena.