Defendant arrested two blocks from his car was not a “recent occupant” under Thornton. United States v. Mathis, 653 F. Supp. 2d 806 (E.D. Tenn. 2009) (case was decided five days before Gant):
In this instance, Defendant was arrested approximately two blocks away from the Vehicle. The arrest took place approximately five minutes after Defendant had left the Vehicle, and the officers returned Defendant to the Vehicle shortly after arresting him. The Court finds that while Defendant’s temporal relationship with the Vehicle was appropriate under Thornton, his spatial relationship to the Vehicle was simply too great. Given the distance between Defendant and his Vehicle at the time of Defendant’s arrest, the Court cannot find that a search of the Vehicle was appropriate under either a theory of officer safety or a concern for the preservation of evidence, the two bases for Thornton.
Nor has the government offered any evidence or argument providing any other legal basis in support of a warrantless search of the car. There is no evidence or argument that the Vehicle would have been seized by the police prior to the discovery of drugs, nor any evidence as to police policy regarding routine inventory searches prior to seizure, thus the government has not raised, and therefore cannot rely on, a theory of inevitable discovery to salvage the search at issue. United States v. Musick, 291 Fed. Appx. 706, 721 (6th Cir. 2008) (recognizing the validity of a warrantless inventory search pursuant to standard police policy). Nor can the Court find under the facts before it that the police had probable cause to search the Vehicle, which would have protected the search under the automobile exception to the warrant requirement. See Md. v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (U.S. 1999) (describing the automobile exception). The only basis for a finding of probable cause would be the fact that defendant was carrying $1,580 in cash and two cell phones, neither of which is sufficient under the totality of the circumstances to create probable cause for a warrantless search of the Vehicle.
Affidavit for child pornography search warrant failed to show probable cause, but the good faith exception saved the warrant. United States v. Harner, 2009 U.S. Dist. LEXIS 78238 (D. Minn. August 4, 2009):
Here, the affidavit is padded with a lengthy description of how Internet distribution of child pornography works and how “typical” computer investigations of child pornography proceed. This information is not sufficiently particularized to the Defendant and must be disregarded. The remaining information in the affidavit that does relate to the Defendant also fails to establish probable cause. The affidavit provides no evidence that the 16 suspect files were advertised as child pornography; it simply offers a conclusion that the suspect IP address “was offering to participate in the distribution of child pornography.” (Gov’t Ex. 1 at Application.) This conclusion is not supported by sufficient evidence that a search of Defendant’s residence would uncover evidence of wrongdoing. First, less than 1.5 percent of the 1,156 files on the Defendants’ computer matched SHA1 values from the ICAC list — hardly overwhelming evidence that the Defendant knowingly possessed prohibited files. Second, the affidavit provides no information as to how the ICAC compiled its list of child pornography files or how the ICAC determined that the files on its list meet the legal definition of child pornography under state or federal law. Third, the affidavit does not even provide a description of the 16 files on the ICAC list that allegedly match the files on Defendant’s computer. Without a description of the files, it is impossible to tell whether these files are photos or videos, much less whether the photos or videos depict child pornography. This means that even if it were reasonable to believe that the Defendant’s files matched the 16 ICAC files, the magistrate had no way to tell whether the 16 ICAC files met the legal definition of child pornography. Therefore, without more, the statement that 16 of 1,156 files Defendant’s computer had SHA1 values matching 16 files on the ICAC list is insufficient to establish probable cause to believe that a search of Defendant’s residence would result in evidence of wrongdoing.
This leaves only the evidence that of one half of one video file found on Defendant’s computer depicted a female engaged in sexual activities. Although the affidavit states that the female seen in the video was between 13 and 15 years of age, it provides no indication of how this age determination was made. The affidavit provides no “basis of knowledge” for the conclusion that the female depicted in the partial video file is between the ages of 13-15, or even that the female is under 18 (such as, for example, evidence of an examination of the file by a pediatrician or other qualified expert). Certainly, the bare statement that the conclusion about a post-pubescent individual’s age was based on Officer Hanson’s general “training and experience” is facially insufficient to establish probable cause. Gates, 462 U.S. at 239. Further, the affidavit concludes, without explanation or analysis, that the file is prohibited child pornography as defined by Minn. Stat. § 617.247. Under Minnesota v. Cannady, a 2007 Minnesota Supreme Court case analyzing and interpreting this statute, in order to prove a violation of Minn. Stat. § 617.247 the government must prove that 1) not only are the persons depicted in pornographic work actually under the age of 18, but also 2) that the individual who possessed the pornographic work actually knew that the persons depicted were under the age of 18. Cannady, 727 N.W.2d 403, 407-09 (2007). The affidavit fails to provide sufficient evidence to support a finding of probable cause as to either element.
In sum, the Court concludes that the officer’s application here is insufficient to support a finding of probable cause, and that therefore the search warrant was issued in violation of the Fourth Amendment.
B. Even Though No Probable Cause Existed To Support The Search Warrant, The Leon Good Faith Exception Applies
Search warrant for premises permitted search of a car parked in the closed garage. United States v. Valazquez, 2009 U.S. Dist. LEXIS 79500 (W.D. Okla. September 3, 2009).*
IRS summons does not implicate the Fourth Amendment. Hibben v. United States, 2009 U.S. Dist. LEXIS 78699 (E.D. Tenn. June 19, 2009).*
