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Name: United States v. Forrester
Case #: 05-50493
Court: US Court of Appeals
District 9 Cir
Opinion Date: 07/06/2007

Surveillance by government of internet usage was not a search for Fourth Amendment purposes. The appellate court reversed Forrester’s jury conviction and sentence imposed by the district court, and affirmed in part and reversed in part Alba’s convictions and sentence. Both defendants’ offenses related to the operation of a large ecstasy-manufacturing laboratory. The court held that Forrester’s waiver of his right to counsel was not knowing and intelligent, and that the district court violated the Sixth Amendment by allowing Forrester to represent himself at trial, where the district court, at a hearing on Forrester’s motion, did not inform him of the charge against him and told him that he faced 10 years to life in prison when he actually faced a potential prison term of 0 to 20 years. Observing that harmless error analysis does not apply in this Faretta-waiver context, the appellate court held that reversal was required. The court also held that computer surveillance, which enabled the government to learn the to and from addresses of Alba’s e-mail messages, the internet protocol addresses of the websites that he visited, and the total volume of information transmitted to or from his account, was analogous to the use of a pen register (a device which records numbers dialed from a phone line) that the Supreme Court held in Smith v. Maryland (1979) 442 U.S. 735, did not constitute a search for Fourth Amendment purposes. Whether or not the surveillance came within the scope of the then – applicable federal pen register statute, Alba was not entitled to suppression of the evidence obtained through the surveillance because there is no statutory or other authority for such a remedy.