Backpack in small SUV subject to search incident

Backpack in the back of a small SUV was within immediate control for search incident purposes. It could not be compared to the truck because it was within reach within the vehicle. United States v. Allen, 469 F.3d 11 (1st Cir. November 17, 2006).

Customs officers had reasonable suspicion for search of a laptop computer for child porn at the border, distinguishing United States v. Arnold, posted Oct. 11, where there was no reasonable suspicion. United States v. Furukawa, 2006 U.S. Dist. LEXIS 83767 (D. Minn. November 16, 2006):

Defendant argues that a border search of the files on a personal computer, laptop, computer disk or other electronic storage device is a not a routine search and therefore requires a reasonable suspicion. See United States v. Arnold, — F. Supp. 2d –, 2006 WL 2861592, at *4 (C.D. Cal. Oct. 2, 2006) (search of computer hard drive nonroutine and requires reasonable suspicion because electronic storage devices implicate substantial privacy and dignity interests based on the amount of information they are capable of containing). However, the court need not determine whether a border search of a laptop is “routine” for purposes of the Fourth Amendment because, regardless, the magistrate judge correctly found the customs official had a reasonable suspicion in this case. Cf. United States v. Irving, 452 F.3d 110, 124 (2d Cir. 2006) (declining to decide whether search of computer disks and film is routine because reasonable suspicion existed); United States v. Roberts, 274 F.3d 1007, 1012 (5th Cir. 2001) (assuming search to be nonroutine but affirming district court’s holding on reasonable suspicion).

Telling a suspect that they would get a search warrant was not proof of involuntariness. United States v. Baker, 2006 U.S. App. LEXIS 28591 (11th Cir. November 17, 2006)* (unpublished).

Lack of supporting affidavit for search warrant permitted District Court in the 2d Cir. to deny motion without a hearing. United States v. Thornton, 2006 U.S. Dist. LEXIS 83435 (D. Conn. November 16, 2006):

The unsupported factual assertions of his counsel are insufficient to warrant an evidentiary hearing or justify the relief requested by the defendant. Moreover, these unsworn assertions are disputed by statements in the Hartford Police Department incident report and in the sworn affidavit submitted in support of the Criminal Complaint. See Government’s Resp. to Def.’s Mot. To Suppress and Objection to Def.’s Req. for a Hr’g (Doc. No. 18) (“Government’s [*8] Resp.”), Ex. A; Compl., Borysevicz Aff. (Doc. No. 1). By way of contrast, in the absence of a sworn statement by an affiant with personal knowledge, the defendant has no accountability for the assertions that his counsel has made.

The defendant argues that he should not be required to substantiate his claims with a sworn statement because he is at risk for an enhancement for obstruction of justice should he be convicted and the court concludes he proffered a false sworn statement. The defendant provides no legal support for his request that the court convene an evidentiary hearing without him being required to show that there is a genuine dispute as to a material fact. However, a key reason for requiring a sworn affidavit is to make the defendant and any other witnesses accountable for their statements to the court. The investigating agents have asserted the relevant facts in a police incident report and in a sworn affidavit. The relevant case law requires the same of the defendant. There is no reasonable basis here to excuse the defendant from satisfying the requirements for being given an evidentiary hearing.