Anticipatory search warrant with controlled buy as a triggering condition is valid. Commonwealth v. Mora, 82 Mass. App. Ct. 575, 976 N.E.2d 196 (2012).

Defendant was involved in a three year identity theft operation and he was arrested with seven cell phones. They were searched for everything with a warrant. “Bell argues that the search warrant was overbroad because there was no justification in the affidavits supporting the warrant application to permit the government to search photos, videos, or the internet browsing history stored on the seven mobile phones found in his automobile.” He didn’t raise this argument in the district court and offers no explanation for the waiver. Affirmed. United States v. Bell, 500 Fed. Appx. 133 (3d Cir. 2012).*

In the no good deed goes unpunished category:

One defendant was an attorney called to the scene at plaintiff’s request to help defuse a standoff. The attorney wasn’t known to plaintiff and he had no prior attorney-client relationship. After the arrest, the attorney and police were sued for conspiring to violate his rights to arrest on a warrant under Payton. On a third-party consent to search a locked safe inside a refrigerator, the officers get qualified immunity for the wife’s purported consent. She admitted she might have property inside the safe but she professed not knowing how to open it. Profession of inability to open is not determinative based on all they knew. Maloney v. County of Nassau, 500 Fed. Appx. 30 (2d Cir. 2012)*:

Thus, we cannot conclude that no reasonable officer would have thought that (1) Comer’s status as Maloney’s wife; (2) the couple’s joint residence in the home where the refrigerator and safe were located; (3) Comer’s ownership of that home; and (4) Comer’s statement that some of her personal property, i.e., her jewelry, might be stored within the safe, were sufficient to support a conclusion that Comer had both the requisite access and interest to permit her lawfully to consent to a search of these items notwithstanding her professed personal inability to unlock them. See Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (holding that officer is “entitled to qualified immunity [where] officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context” (internal quotation marks omitted)).

ABAJ.com: Feds secretly got warrant for Fox reporter’s email, claimed news-gathering was likely a crime by Martha Neil:

News that federal authorities had apparently looked at the personal email of the chief Washington correspondent for Fox News under a search warrant secretly obtained in a criminal investigation of his 2009 news-gathering activities elicited outrage Monday from media organizations and others,

NYTimes: Judge Criticizes ‘High Error Rate’ of New York Police Stops by Joseph Goldstein:

After listening to two months of testimony on the New York Police Department’s stop-and-frisk practices, Judge Shira A. Scheindlin left little doubt about her views of their effectiveness in helping detect criminal behavior.

“A lot of people are being frisked or searched on suspicion of having a gun and nobody has a gun,” Judge Scheindlin, of Federal District Court in Manhattan, said on Monday during closing arguments in the trial. “So the point is: the suspicion turns out to be wrong in most of the cases.”

The state constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant. Commonwealth v. Dunnavant, 2013 PA Super 38, 63 A.3d 1252 (2013):

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A portable breath test is a search governed by the reasonableness clause of the Fourth Amendment. Telling the motorist he has to take the PBT renders it void; he has a choice. Also, passing the field sobriety test does not negate other evidence of intoxication. State v. Edgar, 296 Kan. 513, 294 P.3d 251 (2013), affg in part, revg in part 45 Kan. App. 2d 340, 246 P.3d 1013 (2011):

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A stop or continuation of a stop cannot be based on a mere hunch, and this one was. State v. Martinez, 296 Kan. 482, 293 P.3d 718 (2013).*

The officers’ testimony that they observed plaintiff engaged in a drug transaction was probable cause for arrest foreclosing his § 1983 claim. Fahie v. Rivera, 2013 U.S. App. LEXIS 2368 (2d Cir. February 4, 2013).*

A Syracuse police officer was working off duty at an athletic event in the Town of Dewitt, and he lacked police authority there. His search of defendant’s car was thus unlawful. People v McGrew, 2013 NY Slip Op 637, 2013 N.Y. App. Div. LEXIS 673 (4th Dept. February 1, 2013).*

Defendant was paced driving 75 in a 70 zone. The officer noticed that he was likely driving in tandem with another new, untinted vehicle, also likely a rental vehicle licensed in the same state. When the officer stopped the first car for speeding, he could smell an overpowering odor of green marijuana. The stop was reasonable and the search was with apparent probable cause. United States v. Allen, 12-1663 (8th Cir. February 4, 2013).

The officer came up to defendant’s tractor-trailer, engine running, apparently unoccupied, and parked on a truckstop parking lot. He knocked on the door twice, and defendant opened the sleeper curtain. The officer motioned for him to come out, and he did. First, that was not a seizure, and second it was reasonable to have him get out. “However, the ‘encounter did not become a seizure simply because [the Defendant] may have felt inherent social pressure to cooperate with’ [the officer.]” State v. Mendenhall, 2013 Tenn. Crim. App. LEXIS 75 (January 30, 2013).

The stop was reasonable in its length, and there was no show of force or aggressive conduct or words by the officer. Defendant’s consent was valid. State v. Murphy, 296 Kan. 490, 293 P.3d 703 (2013), affg 42 Kan. App. 2d 933, 219 P.3d 1223 (2009).

A public housing employee came to an apartment to check for damage from a sewer back up. She knocked, got no answer, and entered defendant’s apartment. Inside, she found two unconscious persons and “drugs and things.” She called the police. That was a valid private search, following United States v. Couch, 378 F. Supp. 2d 50, 58 (N.D. N.Y. 2005), which held public housing employees in a similar situation were not “government actors” for purposes of the Fourth Amendment (same result under state constitution). State v. Brittingham, 296 Kan. 597, 294 P.3d 263 (2013).

Cracked windshield can support a stop as a defect in equipment. Villanueva v. State, 2013 Ark. 70 (February 21, 2013).*

Going to the back door to do a knock-and-talk was reasonable where it appeared that the front gate had not been opened in a long time, and the normal route of going in and out was the back door. United States v. Shuck, 713 F.3d 563 (10th Cir. 2013).

While the warrant was issued without probable cause, the USMJ recommended the good faith exception sustain the warrant. On de novo review, the court finds that only the good faith exception issue need be addressed, and it agrees that the officers were objectively reasonable in relying on it. United States v. Davis, 2013 U.S. Dist. LEXIS 52635 (E.D. N.C. April 12, 2013).*

“[A]ppellant failed to include in the appellate record a transcript of the hearing on the motion to suppress.” Based on what little the court has, the motion to suppress is affirmed. State v. Grasty, 2013 Tenn. Crim. App. LEXIS 320 (April 10, 2013).*

Putting video camera over bathroom stalls of the Iowa Civil Commitment Unit for Sex Offenders violated the inmates’ reasonable expectation of privacy. The recordings were not monitored in real time. Arnzen v. Palmer, 713 F.3d 369 (8th Cir. 2013):

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Four guys came from Florida to Arkansas to pass counterfeit checks. Three got arrested fleeing from the police when called by a bank, and one had a hotel receipt on him. Police went to the hotel looking for confederates. The police saw defendant dispose of a bag with counterfeit checks in the parking lot, and he had luggage on a hotel cart about to flee. The checks matched those from the arrested three. The police went to prepare a search warrant for the hotel room he was in, but the clerk called to say he was checking out. They came back and arrested the defendant and searched the luggage finding blank check stock and a computer. On top of the luggage was a printer. The police claimed search incident or inventory because the luggage would have been left on the baggage cart, so they took it. The arrest was clearly with probable cause. The search of the luggage was justified either as inventory or inevitable discovery. “Since the evidence showed that all the items on the luggage cart would have inevitably been discovered and the officers were pursuing an alternative line of investigation, Nix, 467 U.S. at 433, the district court did not err in denying Allen’s motion to suppress.” United States v. Allen, 713 F.3d 382 (8th Cir. 2013). [Note: I was CJA appointed to one of the guys arrested passing the checks. They drove off from a bank when the police showed up, and were arrested at gunpoint. The “from Florida” in the first line was my own knowledge of the case; they all admitted to coming to Arkansas to pass counterfeit checks and then run back to Florida before anybody knew, they hoped. My guy wouldn’t have standing in that luggage.]

Michigan Lawyers Weekly: Class action certified for tax debtors’ Fourth Amendment claims against state treasury by Ed Wesoloski

A restaurateur who was trying to work out his tax problems with the Michigan Department of Treasury is the lead plaintiff in a class action suit that alleges treasury agents routinely searched premises and seized assets without judicially authorized warrants.

. . .

Miri alleges that from Dec. 1, 2008 to Dec. 1, 2011, the treasury department violated the Fourth Amendment in 162 instances where agents made nonconsensual searches and seizures under the authority of warrants issued and executed without judicial authority.

NYTimes Editorial: Eavesdropping on Internet Communications:

The Federal Bureau of Investigation has a new plan to intercept Internet messages, calls and video chats. Instead of requiring companies like Skype and Google to build surveillance capabilities into their services as it suggested in 2010, the F.B.I. now proposes fining companies that fail to comply with court-ordered wiretaps.

The affidavit says that the informant has provided information several times and proved reliable. Tennessee applies Aguilar-Spinelli but guards against hypertechnical application of its prongs. The state is not required to actually specify the number of times. State v. Sales, 393 S.W.3d 236 (Tenn. Crim. App. 2012).

The fact the affidavit for visible child pornography in defendant’s house said that children were “nude” or “naked” or was sufficient to show that child porn was present. State v. Jones, 384 S.W.3d 357 (Mo. App. 2012).*

Defendant did not abandon clothing in the car that was searched, but there was probable cause to search from his actions. United States v. Bonds, 2012 U.S. Dist. LEXIS 150597 (D. Ariz. August 31, 2012).*

While there was probable cause for defendant’s arrest, arresting him in his doorway at gunpoint and pulling him out violated Payton. Consent after that was void. United States v. Hernandez-Penaloza, 899 F. Supp. 2d 1269 (M.D. Fla. 2012):

While I find probable cause for the arrest, I conclude that the warrantless arrest of Defendant and the detention of Moreno nonetheless violated the Fourth Amendment. Here, Woods’ testimony reveals that the deputies intentionally sought to side-step Payton and the warrant requirement by confronting Defendant outside his home so that he could be arrested consistent with Payton and Watson. While the arrest of Defendant was made on the front doorstep of his residence and not inside, the rationale of Payton nonetheless dictates the same legal conclusion where, as here, the Defendant, while inside his house, was confronted by deputies, some wearing masks, all bearing guns and told to come outside with his hands up or where they could be seen. This was no mere consensual encounter with a suspect in a public place. On the contrary, this was an armed confrontation of the occupants of a residence who were ordered to exit their house at gunpoint. While I can find no case in this Circuit addressing similar circumstances, I find persuasive the decisions in the four circuits cited above. In these circumstances, the forceable removal of Defendant from his home to effectuate an arrest outside the house violates the Fourth Amendment. While not formally arrested, Moreno too was forcibly removed from her residence without legal justification and detained in violation of her Fourth Amendment rights.

Probable cause for defendant’s arrest for drugs justified a search of the car under the automobile exception, an exception to Gant. United States v. Davidson, 2012 U.S. Dist. LEXIS 150513 (E.D. Pa. October 19, 2012).*

Substantially corroborated information from a citizen informant provided probable cause to issue a search warrant. Plaintiff’s claim of false statements in the statement of probable cause was not material because, even if it was assumed, there was probable cause on the remainder. Samadian v. Meade, 494 Fed. Appx. 490 (5th Cir. 2012).*

Officers had a shots fired domestic disturbance call. At the scene, the apartment seemed abandoned, and officers were justified in entering it. Defense counsel was not ineffective for not raising it. Colón-Díaz v. United States, 899 F. Supp. 2d 119 (D. P.R. 2012).*

The Memphis P.D.’s practice of a “48 hour hold” for investigation is an arrest requiring probable cause. This court has criticized it before. Here, they had probable cause for defendant’s arrest, and his confession to murder was otherwise voluntary. State v. Cox, 2013 Tenn. Crim. App. LEXIS 18 (January 9, 2013).*

Call about shots fired in a house justified a warrantless entry when the officer got there. State v. Hopkins, 2013 Ohio 48, 2013 Ohio App. LEXIS 32 (6th Dist. January 11, 2013).*

The motion to suppress never raised the issue presented for appeal, and, while it was discussed in argument, nothing in the trial court’s findings and conclusions even mentions this issue, so it wasn’t raised or preserved below. State v. Fry, 828 N.W.2d 325 (Iowa App. 2013).*

A product of decriminalization:

Defendants’ car was stopped for not using a turn signal, and the officer could smell marijuana coming from the car. Questioning and searching one produced two small bags, only enough for a civil infraction and not enough for a criminal offense, and that small amount did not justify a search of the whole car. The state’s proffered justification of officer safety was rejected as not being based in fact. Commonwealth v. Daniel, 464 Mass. 746, 985 N.E.2d 843 (2013)*:

Here, Tayetto surrendered two small bags of marijuana at the request of the officer. Possession of the amount contained therein constituted a civil infraction, not a criminal offense. “As citizens, we expect that if we commit a civil infraction we will pay a fine; we do not expect a significant intrusion into our privacy and liberty.” Cruz, supra at 469 n.16. Absent articulable facts supporting a belief that either occupant of the vehicle possessed a criminal amount of marijuana, the search was not justified by the need to search for contraband.

“We conclude that the search was not a lawful search incident to arrest, because the officers had no basis to arrest the defendant before searching him. The officers’ observation of the defendant and two others passing what appeared to be a marijuana cigarette back and forth did not provide probable cause to believe the defendant was committing a crime. Therefore, the defendant’s motion to suppress should have been allowed.” Commonwealth v. Jackson, 464 Mass. 758, 985 N.E.2d 853 (2013)*.

A small bag of marijuana on the floorboard doesn’t justify a search of the trunk in Massachusetts. Commonwealth v. Pacheco, 464 Mass. 768, 985 N.E.2d 839 (2013).*

Testimony of the officer gave defendant standing to contest the search of the house, and that was sufficient for appellate review. [Regrettably, the defense argument of state waiver was countered with “the trial court implicitly addressed the issue of standing by addressing the merits of Rogers’s motion” which makes absolutely no sense if the state didn’t object to standing; it’s not the trial court’s job to raise standing.] State v. Rogers, 319 Ga. App. 834, 738 S.E.2d 667 (2013).

Stop for LPN violation led to furtive movement by defendant under seat. That gave the officer cause to search under the seat for a weapon or drugs. State v. Morlock, 2013 Ohio 641, 2013 Ohio App. LEXIS 571 (3d Dist. February 25, 2013).*

Defendant’s stop for riding a bicycle at night without a headlight was valid. He consented to a search of his person which found nothing. He refused to consent to a search of the bag on the handlebars, and he stuffed something further in when asked. A flashlight revealed marijuana which was validly seized. Bolen v. State, 320 Ga. App. 3, 739 S.E.2d 11 (2013).*