The Hill.com: Paul offers bill to protect privacy of electronic communications by Ramsey Cox:
Sen. Rand Paul (R-Ky.) introduced a bill Thursday that would extend Fourth Amendment rights to electronic communications.
“In today’s high-tech world, we must ensure that all forms of communication are protected,” Paul said. “Yet government has eroded protecting the Fourth Amendment over the past few decades, especially when applied to electronic communications and third party providers.”
HuffPo: ‘Flash-Bang’ Searches by Bennett L. Gershman:
It’s one thing for the U.S. military to raid a compound in Kabul using incendiary grenades to secure and enter the premises. It’s quite another thing for U.S. police officers to execute a search warrant by throwing “flash-bang” grenades into a home, raining the place with rubber bullets, and kicking down every door in the house. Is that conduct necessary? Is it reasonable? Does the Fourth Amendment allow it?
That’s exactly what happened when police in Portland, Ore., executed a search warrant for a private home where the defendant resided and who was alleged to have physically attacked his girlfriend, and was reported to possess weapons and drugs. The police were informed that several other persons lived in the house, including an infant, and a prison associate of defendant’s. The police decided, although the reasons are not clear, that it would be more risky to arrest the defendant outside the house than inside, so they obtained a search warrant and executed it at 5:30 a.m.
Forty-four police officers participated in the raid. Police pounded on the front door yelling “police, search warrant,” and a second later broke down the door with a battering ram. …
“Our state and federal constitutions declare that homes—whether castles or cabins, mansions or mobile homes—are protected spaces that require a warrant or other lawful basis to justify a governmental intrusion. At issue in this case is whether police officers entering the property of Russell Powell and Benjamin Wilbourn and peering into a window of their mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment. Because the officers intruded into a constitutionally protected area without a warrant and peered into a window from a part of the property where they had no lawful right to be, an unconstitutional search occurred.” Powell v. State, 2013 Fla. App. LEXIS 8166 (Fla. 1st DCA May 22, 2013):
During defendant’s traffic stop, the officer developed reasonable suspicion of drug possession. Crack cocaine was found on the passenger. When defendant driver produced marijuana, the officer was not obliged to end there–he could have believed it was a ploy to distract him from more. A patdown of defendant then produced crack in defendant’s buttocks. State v. Smith, 2013 Ohio 114, 2013 Ohio App. LEXIS 78 (4th Dist. January 11, 2013).*
Smell of burnt marijuana and presence of a large amount of cash in the driver’s pocket was grounds for a search of the trunk of the car under the automobile exception. State v. Price, 2013 Ohio 130, 986 N.E.2d 553 (6th Dist. 2013).*
Defendant was known to carry a gun. Here, he ran into a parked car in a driveway and allegedly hid the gun from the police before they arrived at the accident scene. Police previously received a report he had threatened people with a gun, but a consent search that day did not reveal the gun. A Terry frisk of defendant for a weapon was appropriate on these facts. The officer searched the area and found a gun case and a backpack, and defendant asserted an interest in them. He consented to a search of the gun case revealing an SKS. He did not consent to search of his backpack. A dog was called in and it alerted to the backpack. That was probable cause for a search. United States v. Morrison, 2013 U.S. Dist. LEXIS 7663 (D. Kan. January 18, 2013).*
Dancers working at the GoGo Girls Cabaret in Austintown, OH were arrested for prostitution with patrons in a back room. There was no written motion to suppress, but there was an oral motion from some of the dancers. That was sufficient when they were adopted by the others. On the merits, the police got a search warrant for the computers storing video from security cameras to prove the state’s case. There was no valid Fourth Amendment objection to seizure of the videos. The making the videos was a private search, and the police could attempt to take advantage of those videos if they prove anything. The cases were improperly dismissed. State v. Wallace, 2012 Ohio 6270, 986 N.E.2d 498 (7th Dist. 2012):
[*P31] Appellees also claim that the warrants were facially invalid because they allowed for the confiscation of security videos that were allegedly made in violation of privacy interests protected by the Fourth Amendment. Appellees’ argument here also fails, because the security videos were recorded by a private entity, i.e., the Cabaret, and not by a state entity or agent of the state. A search or seizure conducted by a private citizen is not a “search or seizure” within the meaning of the Fourth Amendment. State v. Morris, 42 Ohio St.2d 307, 316, 329 N.E.2d 85 (1975), citing Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); … For a search by a private person to trigger Fourth Amendment protection, the government must have known about the search in advance, and the private party must be acting in furtherance of law enforcement purposes. Morris at 316-317; see also, United States v. Pierce, 893 F.2d 669 (5th Cir.1990). There is certainly nothing in the search warrant or accompanying affidavit suggesting that the Cabaret was an agent of the police in producing the security videos. Because the Cabaret is a private entity, Appellees had no basis on which to raise a facial challenge of the search warrant centered on the actions of the Cabaret in creating security videos.
[*P32] Appellees further argue that the search warrant did not allow for the police to actually search through the files on the computer. Appellees submit that the search warrant only allowed the police to seize the computer itself, rather than the files on the computer. Appellees conclude that if the police sought to search the files in the computer, the search warrant failed to satisfy the Fourth Amendment requirement that a warrant “particularly” describe the things to be searched and seized. Pursuant to the Fourth Amendment, only warrants “particularly describing the place to be searched and the person or things to be seized” may issue. “The manifest purpose of this particularity requirement was to prevent general searches. * * * [T]he requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987).
[*P33] Appellees’ argument regarding the search of computer files is baseless. The warrant affidavits refer to the security cameras and the images included on the security camera videos. The warrants describe in detail the computers and the hard drives on the computers, and note that there would be security camera recordings on the computers. The evidence sought in the warrants is stated with sufficient particularity to satisfy the Fourth Amendment.
[*P34] In summary, even assuming Appellees had standing to make a Fourth Amendment challenge, they failed to demonstrate any facial errors in the warrant and they failed to submit any other evidence challenging the warrants or search. Therefore, there was no basis to grant the motion to suppress pursuant to the Fourth Amendment.
15 second in-person interview between officer and anonymous informant about a machine gun being put in a car and the direction of the car was sufficient to establish reasonable suspicion. The officer could assess her credibility. People v. Sanders, 2013 IL App (1st) 102696, 986 N.E.2d 114 (2013).*
The defendant clearly consented to the search of the apartment, and the threat to get a search warrant was not trickery or false. United States v. Todd, 2013 U.S. Dist. LEXIS 19455 (S.D. N.Y. January 28, 2013).*
2255 petitioner claimed that he would not have pled guilty if he knew that Jones was pending at the time. The court finds the credible evidence shows that he knew and waived it. United States v. Jesus-Nunez, 2013 U.S. Dist. LEXIS 19104 (M.D. Pa. January 25, 2013).*
Whether there was a gate across the road at the time of the entry, the court finds the credible evidence was that there was not. The photographs showing a gate were taken long after. United States v. White, 2012 U.S. Dist. LEXIS 185938 (W.D. Mo. November 30, 2012).*
Sitara V. Witanachchi, Maryland v. King: The Fourth Amendment Spirals down the Double Helix for Duke Law Review:
Reliance on a telephonic search warrant looking for evidence of a mugging by defendant was objectively reasonable and would not be suppressed. United States v. Davis, 2013 U.S. Dist. LEXIS 71696 (D. Nev. April 23, 2013).*
Knowledge of a warrant out for defendant is justification for a stop. United States v. Harper, 2013 U.S. Dist. LEXIS 71727 (W.D. Ark. May 21, 2013),* R&R 2013 U.S. Dist. LEXIS 71729 (W.D. Ark. April 4, 2013).*
Defendant’s coerced consent claim fails. United States v. Brown, 2013 U.S. Dist. LEXIS 71336 (S.D. Ga. April 16, 2013).*
Defendant had no standing in what was described as an unlivable crack house. United States v. Anderson, 2013 U.S. Dist. LEXIS 72144 (E.D. Tex. May 10, 2013).*
Particularity and overbreadth in white collar crime: a rare granting of suppression in a no-fault insurance scheme search warrant. The particularity requirement protects important values. The good faith exception does not apply here. United States v. Zemlyansky, 2013 U.S. Dist. LEXIS 71818 (S.D.N.Y. May 20, 2013) (Oetken, J.):
Forbes: Once Reserved For Drug Crimes, Wiretapping Takes Center Stage in White Collar Prosecutions:
“Today, tomorrow, next week, the week after, privileged Wall Street insiders who are considering breaking the law will have to ask themselves one important question: Is law enforcement listening?”
– Preet Bharara, U.S. Attorney for Southern District of New York
The Supreme Court granted cert Monday in Fernandez v. California. Issue:
Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.
Opinion below: People v. Fernandez, 208 Cal.App.4th 100, 145 Cal.Rptr.3d 51 (2d Dist. 2012), posted here as Cal.2: Police can remove defendant and ask for consent from co-tenant; rejecting 9th Cir. authority.
For what it is worth, this is on the petition of the citizen accused which suggests, but does not guarantee, a reversal. After all, can the police really just circumvent Randolph by removing the objector then asking around for consent until they find an unaware third party to ask? Come on…
Defendant was involved in a two-vehicle accident and left the scene. Police came to his house to talk to him to inquire about the accident, and they were reasonably concerned about his injuries. He lived with his brother, and his brother let the police into the house. When they told him what was up, on his own, he broke into defendant’s bedroom without prompting by the police. Overall, the police were still objectively reasonable on entering the bedroom. State v. Gracia, 2013 WI 15, 345 Wis. 2d 488, 826 N.W.2d 87 (2013) (interesting dissents).
Defendant was in possession of a stolen GPS device, and he lacked “standing” to challenge its seizure and search. Henderson v. State, 395 S.W.3d 304 (Tex. App. – Eastland 2013).
Defendant’s stop escalated to full arrest without reasonable suspicion just because the officers couldn’t find him in a government database, wrongly concluding this made him a fugitive. On the totality, the government showed really nothing for the continued detention. The fact defendant did not show up in a database they expected him in proved nothing. “It simply cannot be that reasonable suspicion of a person being a wanted fugitive is created by the failure to find the name, given by a person, in a government database. Ironically, had Dapolito’s name been found, the information would not have shown he was wanted on a warrant.” Under all the facts, it was clear he was not free to leave or avoid further police contact. United States v. Dapolito, 713 F.3d 141 (1st Cir. 2013).*
Defense counsel was not ineffective for not preserving defendant’s search issue for appeal because defendant had no standing. This was a motel room, and he wasn’t a registered guest or spending the night. Ex parte Moore, 395 S.W.3d 152 (Tex. Crim. App. 2013).*
A woman lawyer was the target of a home invasion and aggravated attempted rape in 1994 in Nashville. She struggled with the assailant who beat her head, and she bit off a piece of skin on his finger, spitting it under the bed. He left. In 2000, a DNA profile was run on the piece of the finger, and the DHA description was included in a John Doe warrant as a specific identifier. In 2006, the grand jury indicted John Doe. In 2008, a likely fingerprint match was made off the piece of the finger with defendant who had applied for a job at the DOC. Once police had a likely candidate for a suspect, a match on a palm print was made and the police then sought a DNA sample, and that matched the defendant. He was charged, tried, and convicted. A John Doe warrant with a DNA description was sufficiently particular under the Fourth Amendment, and the statute of limitations was properly tolled. State v. Burdick, 395 S.W.3d 120 (Tenn. 2012), aff’g State v. Burdick, 2011 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 2, 2011):
Several jurisdictions have addressed the issue since [Wisconsin] in Dabney [State v. Dabney, 2003 WI App 108, 264 Wis. 2d 843, 663 N.W.2d 366 (2003)], and most have concluded that inclusion or reference to a unique DNA profile in a “John Doe” arrest warrant or indictment sufficiently describes a person to satisfy statutory requirements. In State v. Danley, the Ohio Court of Common Pleas cited Dabney with approval and held that an affidavit of complaint and arrest warrant against “John Doe,” which identified the suspect by gender and a DNA profile, was sufficient to commence the criminal action, thereby tolling the statute of limitations. 2006 Ohio 3585, 853 N.E.2d 1224, 1226-28 (Ohio Ct. Com. Pl. 2006). More recently, in People v. Robinson, the California Supreme Court ruled that an arrest warrant that described the suspect only as “John Doe, unknown male” with a unique 13-loci DNA profile adequately identified the defendant under both the Fourth Amendment and California’s statutory scheme, thus timely commencing the prosecution. 47 Cal. 4th 1104, 104 Cal. Rptr. 3d 727, 224 P.3d 55, 75-76 (Cal. 2010). Finally, in Dixon, the Massachusetts Supreme Court observed that a DNA profile is more than a description; “it is, metaphorically, an indelible ‘bar code’ that labels an individual’s identity with nearly irrefutable precision.” 938 N.E.2d at 885 (citing NRC at 2, 7, 9). Consequently, that court held that a “John Doe” indictment incorporating the suspect’s unique DNA profile and additional physical description “unassailably fulfil[led] the constitutional requirement that an indictment provide ‘words of description which have particular reference to the person whom the Commonwealth seeks to convict,'” sufficiently identified the defendant, and tolled the statute of limitations. Id. at 885-86.
. . .
We are persuaded that a DNA profile exclusively identifies an accused with nearly irrefutable precision and, as a general rule, satisfies the particularity requirements of the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution. In our view, the “John Doe” designation in the warrant at issue, coupled with the detailed DNA profile of the assailant, identified the Defendant with “reasonable certainty,” as is required by both constitution and statute. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7; Tenn. Code Ann. § 40-6-208; Tenn. R. Crim. P. 4(c)(1)(B). As a result, the prosecution was properly and timely commenced within the eight-year statute of limitations by the filing of the “John Doe” arrest warrant on February 2, 2000.
. . .
IV. Conclusion
A criminal prosecution is commenced if, within the statute of limitations for a particular offense, a warrant is issued identifying the defendant by gender and his or her unique DNA profile. Furthermore, a superseding indictment in the defendant’s proper name provides the requisite notice of the charge. The judgment of conviction is, therefore, affirmed.
An officer does not need reasonable suspicion to ask a motorist for consent, and the trial court erred in finding to the contrary. State v. Miller, 2013 Ohio 985, 2013 Ohio App. LEXIS 874 (9th Dist. March 18, 2013).
Officers had a reasonable belief in the consenter’s authority to consent where she was inside the house with a key and stuff of hers was there, too. State v. Bump, 2013 Ohio 1006, 2013 Ohio App. LEXIS 892 (3d Dist. March 18, 2013).*
An anonymous tipster’s accurate predications of where the defendant was going corroborated by the officer is reasonable suspicion for a stop. State v. Massaro, 2013 Mo. App. LEXIS 327 (Mo. App. March 18, 2013).*
The trial court ruled that the search of the car was valid as a search incident, but that is incorrect. Because there was probable cause, the search of the car was valid under the automobile exception. State v. Deaton, 395 S.W.3d 50 (Mo. App. 2013).*
Defendant sought to remove his court appointed lawyer for, inter alia, not filing a motion to suppress, which the court finds would be a loser anyway. United States v. Brown, 2013 U.S. Dist. LEXIS 43110 (M.D. Pa. March 27, 2013).*
Defendant’s Franks challenge to the search warrant affidavit fails because the objection he raised is not material to the finding of probable cause. United States v. Harris, 2013 U.S. Dist. LEXIS 43375 (D. Vt. March 27, 2013).*
Officers on P2P internet trolling found a computer with child pornography on it. Once the IP address was tied to defendant’s address, they had probable cause for issuance of a search warrant for the computers at that address. United States v. Upshaw, 2013 U.S. Dist. LEXIS 43339 (D. Minn. February 5, 2013).*
Reasonable suspicion that a driver of a stopped vehicle is involved in large-scale drug activity, including recent drug activity involving the vehicle, supports a frisk of the passenger based on the officer’s reasonable belief that the passenger may be armed and dangerous. State v. Lemert, 829 N.W.2d 421 (Minn. App. 2013).*
Police tracked a suicidal and intoxicated runaway teenager to defendant’s house via the cell phone’s GPS. At the house, nobody responded to the door, but the officers could hear the TV on upstairs. The door opened with a touch, and the lock was broken. The entry was justified by exigent circumstances. State v. York, 829 N.W.2d 191 (Iowa App. 2013):
Guiding our Fourth Amendment analysis is the fundamental question of “whether the search and seizure were reasonable in light of the facts and circumstances of the case.” Crawford, 659 N.W.2d at 542. We must ask whether under the facts known to officers at the time, “a reasonable person would have thought than an emergency existed.” Carlson, 548 N.W.2d at 143. An intoxicated and suicidal teenager led police to a home where they discovered signs of a forced entry and unresponsive residents. Given the juvenile’s suicidal threats following a physical and verbal confrontation with his parents, police officers were justified in fearing for the juvenile’s life. Officers on the scene were not privy to the innocent explanation for the broken door handle nor did they have the benefit of hindsight with the time to make a calculated and technical review of the evidence. While a concerned mother watched as police searched for her intoxicated and suicidal son in near-freezing temperatures, a reasonable person under the circumstances would have thought an emergency existed sufficient to require immediate action. We find the police officers exercised their role as community caretakers in entering the home.
People inside the apartment “discuss[ing] their concern about police presence in the building” including one saying he had drugs on him was exigency for entry. State v. Floyd, 829 N.W.2d 191 (Iowa App. 2013):
Here, in contrast, the information relayed to police officers indicated a large amount of foot traffic and drugs, an officer heard several individuals inside the apartment discuss their concern about police presence in the building, and one individual stated he had drugs on him and needed to leave the apartment. Given the specific, articulable facts known to Officer Nice regarding the scenario unfolding behind the apartment door, along with the rational inferences that could be made therefrom, a reasonable officer in his position could have feared either the escape of a subject or the destruction of evidence.
A vehicle parked at the owner’s house is immobile for the purposes of Oregon’s automobile exception. State v. Pirtle, 255 Ore. App. 195, 296 P.3d 625 (2013).*
Landlord’s standing in the premises that burned in a fire was limited, and here gave him no standing to challenge the fire scene search. United States v. Cromer, 2013 U.S. Dist. LEXIS 20738 (E.D. Mo. February 15, 2013).*
No IAC for not challenging search: Based on the record, “assuming without deciding that Martin had a legitimate expectation of privacy, we agree with the State that there was a valid search incident to arrest.” State v. Martin, 2012 Iowa App. LEXIS 832 (October 3, 2012).*
Whether defense counsel was ineffective for not challenging the search could not be reached on direct appeal because of inadequacy of the record on the search on any ground. Defendant has to go to post-conviction proceedings to make his record. State v. Armstrong, 2012 Iowa App. LEXIS 834 (October 3, 2012).*
There was probable cause for defendant’s stop. State v. Quigley, 2012 Iowa App. LEXIS 842 (October 3, 2012).*
Defendant’s consent here was not shown to be clearly erroneous. United States v. Vaghari, 500 Fed. Appx. 139 (3d Cir. 2012).*
