Defendant was seen leaving the scene of a burglary wearing all black and carrying a large black bag. When a man matching all that was seen by the officer, he had reasonable suspicion for a frisk when he saw a screwdriver sticking out of a pocket. Defendant then acquiesced in a consent search of the bag which produced evidence of the burglary. State v. Watkins, 2012 Tenn. Crim. App. LEXIS 1053 (December 19, 2012).*

Defendant in a blocked-in car with three officers with flashlights shining in windows was subjected to a stop governed by Terry. “[T]he police officers had only three justifications: the recent high-crime history of this lot, pat-downs of Julian’s patrons, and Young’s reclined position in the passenger seat of a parked car.” United States v. Young, 707 F.3d 598 (6th Cir. 2012).*

Conclusorily stating the informant is reliable without backing it up is wholly inadequate. The CI here was corroborated only to the extent of where the defendant lived. State v. Duarte, 389 S.W.3d 349 (Tex. Crim. App. 2012):

We agree with appellee that there was no substantial basis for crediting the first-time informant’s hearsay statement. Officers failed to corroborate the informant’s tip except to confirm appellee’s address. The tip was not a statement against interest, nor repeated by other informants. There was no accurate prediction of future behavior. This tip was a first-hand observation, but it contained no particular level of detail regarding appellee’s premises or his criminal activity. The tip was: “The credible individual stated that he/she had observed Gilbert Duarte 08-17-87 in possession of cocaine within the past twenty-four hours at 10919 Indigo Creek.” That is it. How much cocaine did he possess? A couple of lines worth, laid out at a party and fully consumed? A kilo? Where did Mr. Duarte have the cocaine? In the pocket of his jeans? Hidden in the attic? Was it piled on the kitchen table being weighed and packaged for sale? This is not a case where there is a tip about a methamphetamine lab, or marijuana-growing operation, or crack-cocaine dealing. In those cases, the tip supports an inference that the criminal activity is ongoing. Here, as the State acknowledged at oral argument, there is nothing in the affidavit that suggests Mr. Duarte was engaged in drug-dealing. Indeed, one could plausibly conclude from this affidavit that it was the confidential informer who delivered the cocaine to Mr. Duarte’s house. All we know is that the informant saw some amount of cocaine “in the possession” of Mr. Duarte.

On the one hand, the informant gave a timely, first-hand tip. On the other hand, the police failed to corroborate the tip except to confirm Mr. Duarte’s address. But the fact that Mr. Duarte lives where the informant says he lives does not make his assertion that Mr. Duarte possessed cocaine more reliable. Further, the tip was vague, not an “explicit and detailed description of alleged wrongdoing” that the Gates court referenced. There were no facts from which to draw an inference that the referenced “credible individual” actually was a “credible individual.” The affiant’s ipse dixit does not make it so. Under the totality-of-the-circumstances analysis—balancing the relative weights of all the various indicia of reliability (and unreliability) attending the informant’s tip—the magistrate here did not have a substantial basis upon which to find probable cause.

A false promise of immunity (a “bait-and-switch”) to get defendant to consent invalidated the consent. State v. Marshall, 254 Ore. App. 419, 295 P.3d 128 (2013):

The touchstone of three of those “consent-to-search” genres (all except “authority”) is autonomous choice: The lawfulness of the warrantless search derives from, and is innately circumscribed by, the unimpaired autonomous choice of the person giving consent. Here, defendant posits that his “consent” was elicited by “bait-and-switch” tactics of the investigating officer—viz., the giving of an illusory promise of immunity—and, thus, was not the product of autonomous choice. That is, his “consent” was not consent at all.

While defendant forthrightly acknowledges that there is no Oregon appellate decision holding that an illusory inducement abrogates an ostensible consent to search, he invokes our precedents addressing the effect of promises of leniency on the voluntariness of admissions elicited during police interviews. We agree with defendant that those cases are highly instructive in that they are grounded substantively, albeit not exclusively, on the imperatives of autonomous choice.

. . .

In sum, as in Pollard, 132 Ore. App. at 549, “[t]he quid pro quo was apparent”: But for Wilson’s promise that he would not be held responsible for the contents of the RV, defendant would never have consented to the search of the RV. That promise proved to be false, as defendant was charged with evidence discovered during that search. Under those circumstances, defendant’s “capacity for self-determination was critically impaired,” Tanner, 236 Ore. App. at 431, abrogating his purported consent. The warrantless search of the RV did not fall within the consent exception.

The fact defendant had previously connected to Limewire did not show no reasonable expectation of privacy in defendant’s computer files. His connection to a wireless router was also not a waiver of his reasonable expectation of privacy in the files on his computer. The government engaged in a search in getting someone to enter defendant’s computer and open a file because it was not publicly accessible. Suppressing that image leaves the affidavit without probable cause. United States v. Ahrndt, 2013 U.S. Dist. LEXIS 7223 (D. Ore. January 17, 2013), on remand from United States v. Ahrndt, 475 Fed. Appx. 656, 657 (9th Cir. 2012), for additional fact finding.

There was probable cause to arrest defendants for a drug conspiracy. The CI was fully corroborated. United States v. Johnson, 2013 U.S. Dist. LEXIS 6026 (S.D. N.Y. January 10, 2013).*

Questions of the driver during the “unavoidable lull” of the wait for information back on the DL were permissible and not a “second stop.” State v. Wiener, 254 Ore. App. 582, 295 P.3d 152 (2013).

Officers had a restraining order against a bar and frisked all the patrons. As to defendant, the first frisk found nothing, but he was “fidgety,” so they frisked him again finding drugs. The officers detained all the patrons until they could run criminal history checks. The motion to suppress should have been granted. This is like Ybarra. State v. Sweeney, 2012 Ohio 3152, 2012 Ohio App. LEXIS 2783 (8th Dist. July 12, 2012).

2254 petitioner’s search and seizure claim in federal court was the same as his state court, so it was barred by Stone v. Powell. COA denied. Cheeks v. Zupan, 490 Fed. Appx. 110 (10th Cir. 2012).*

Defendant did not submit to a seizure because he was jogging when the police tried to talk to him, and, as he was finally stopped, he admitted he had a gun, and that justified a frisk. United States v. Denson, 488 Fed. Appx. 314 (10th Cir. 2012).*

Officers beating on the door to open when they reasonably believed there was an exigency was not unreasonable. Their actions did not amount to a threat to violate the Fourth Amendment if the door wasn’t opened. United States v. Ramirez-Fragozo, 490 Fed. Appx. 125 (10th Cir. 2012) [Co-defendant’s case: United States v. Canas, 462 Fed. Appx. 836, 2012 U.S. App. LEXIS 3329 (10th Cir. 2012)]:

We emphasize two fundamentals: First, the facts creating the exigency occurred well prior to the officers’ arrival at the house, as discussed above. Second, the officers made no overt threat to violate the occupant’s rights. After their arrival, the officers knocked on the door several times; they twice announced their presence; they twice asked the occupants to come to the door; and they twice waited for a response. This is not a “demand that amounts to a threat to violate the Fourth Amendment.” King, 131 S. Ct. at 1863.

Ramirez-Fragozo argues the “show of military force … clearly implied that if there was no compliance with their demands the Fourth Amendment would be violated,” (Appellant’s Br. at 27). However, there was no evidence that the occupants were aware of the extent of the police presence or felt threatened. Mostly we have the suppositions of counsel. We know only that someone spread a blind, peeked out of the window and then drew the blind. We have no idea what the occupants saw or thought.

But we know that after the peek there was a flurry of activity, reasonably suggesting destruction of evidence. Before the officers arrived they were legitimately concerned that critical evidence would be lost if they did not act decisively. The events at the door exacerbated those pre-existing concerns—destruction of evidence was not merely likely, it was ongoing.

Defendant was arrested four blocks from his home and the officers had probable cause for his house but no search warrant. The government’s contention that somebody in the neighborhood would possibly give a “heads up” and evidence could be destroyed was too tenuous on the facts. “How would a person who witnessed a traffic stop a few blocks away know that it was a result of a controlled buy which occurred a few minutes earlier at that address?” [The court does not mention that this is a classic “police created exigency” argument.] United States v. Watson, 489 Fed. Appx. 922 (6th Cir. 2012).

Three officers testified they could smell marijuana coming from defendant’s car during the stop, and they were credited. That justified a dog sniff, alert, and search. United States v. Gardner, 2012 U.S. Dist. LEXIS 105024 (M.D. Ala. June 27, 2012), adopted 2012 U.S. Dist. LEXIS 104498 (M.D. Ala. July 27, 2012).*

An issue in the motion but not briefed is waived in the district court. United States v. Laughlin, 2012 U.S. Dist. LEXIS 104921 (N.D. Ga. July 6, 2012).*

Defendant’s wife and daughter sparingly used the family computer, but that didn’t mean that the wife didn’t have actual authority to consent to a search of it. She found child pornography on the computer and called the police and consented to a search of the computer. It was password protected, but the password wasn’t working at the time in question. United States v. Marandola, 489 Fed. Appx. 522 (2d Cir. 2013)*:

While Lisa Marandola admitted to using the Apple computer sparingly, she still had access to it, as did her daughter. The computer was located in a common area and was purchased using joint funds. Mrs. Marandola paid for internet out of her own personal account. Moreover, Mrs. Marandola testified that her husband never told her that she was prohibited from using the computer, and that password protection was not enabled on the day in question. These facts provide compelling evidence that Lisa Marandola had common authority over the area, a substantial interest in the area, and even tacit permission to gain access to the area.

The evidence in the record supports consent to search. Three witnesses testified that defendant did, and other evidence pointed to wasn’t conclusive of anything. United States v. Perry, 703 F.3d 906 (6th Cir. 2013).*

Defendant’s arrest was based on his driving and BAC. It was raised to a felony by the officer after dispatch reported priors. This isn’t improper as reliance on hearsay under the Fourth Amendment. People v. Conley, 211 Cal. App. 4th 953, 150 Cal. Rptr. 3d 334 (3d Dist. November 8, 2012), Rehearing granted, Depublished by, Vacated by People v. Conley, 2013 Cal. App. LEXIS 96 (Cal. App. 3d Dist., Jan. 2, 2013).

Illegal tint led to strong smell of air freshener, nervousness and implausible story and a drug dog also led to a federal fugitive being found. The stop was not too long. Mordica v. State, 319 Ga. App. 149, 736 S.E.2d 153 (2012).*

Suppression of the stop here might have been on a misinterpretation of the statute requiring a turn signal, so the case is remanded to the trial court to specify what’s going on. People v. Tramble, 2012 IL App (3d) 110867, 980 N.E.2d 1254 (2012).*

An unidentified twice 911 caller was [sort of] corroborated and thus reliable for a stop. United States v. Holloway, 489 Fed. Appx. 591 (3d Cir. 2012):

These facts are directly analogous to the instant case: here, the caller was an eyewitness to a recently committed crime, the tip provided a detailed description of the vehicle-including the make, color, and license plate number-while contemporaneously describing the movement of the vehicle, and the caller informed the dispatcher when he and Holloway were about to pass a police station, providing the police with ample opportunity to identify him. This information was credibly available to the caller and it accurately predicted what would follow, namely that Holloway would be found near the reported location with a gun. In addition, the tip was further bolstered by the fact that Holloway was driving in a high-crime area, at a late hour.

This is just too thin for me.

Consent of somebody with authority was voluntary: She had actually an interest in consent, she had 90 minutes to think about it, was advised of the right to refuse, mention of getting a search warrant was not threatening and the police clearly had probable cause. United States v. Moore, 2013 U.S. Dist. LEXIS 11734 (D. Ariz. January 28, 2013).*

Two arguments that were better off being waived: no probable cause that defendant robbed a bank and that a bank bag found from the robbed bank couldn’t be searched. A more plausible staleness argument on a search warrant for evidence of the bank robbery being found seven months later was abandoned by saving it for the reply brief. United States v. Abramski, 706 F.3d 307 (4th Cir. 2013).*

“An application for a wiretap authorization must be supported by the same probable cause necessary for a search warrant. See United States v. Hyde, 574 F.2d 856, 862 (5th Cir. 1978). The issuing magistrate is to make a ‘practical, common-sense decision’ about whether the ‘totality of the circumstances’ indicate that there is probable cause that the sought-for evidence will be obtained. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 233, 76 L.Ed.2d 527 (1983).” United States v. Davis, 2013 U.S. Dist. LEXIS 11803 (M.D. Ala. January 10, 2013).*

Plaintiff took off his shirt at airport security, and the text of the Fourth Amendment was written on his chest. Wearing only shorts and socks, he cooperated with the screening process, and he was arrested and handcuffed for disorderly conduct. He stated a claim for First Amendment retaliation against the TSA officers and local police who arrested him. Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013):

The facts:

In anticipation that he might be subjected to enhanced screening, Mr. Tobey had written the text of the Fourth Amendment on his chest as he believed AIT scanning was unconstitutional. Before proceeding through the AIT unit, Mr. Tobey calmly placed his sweatpants and t-shirt on the conveyor belt, leaving him in running shorts and socks, revealing the text of the Fourth Amendment written on his chest. Agent Smith advised Mr. Tobey he need not remove his clothes. Mr. Tobey calmly responded that he wished to express his view that TSA’s enhanced screening procedures were unconstitutional.

At this point, Agent Smith radioed for assistance. As commanded by her supervisor, Appellant-Agent Jones, Agent Smith ordered Mr. Tobey to remain in front of the AIT unit. Agent Jones and unknown Appellant-Agent Doe then asked RIC police for assistance. At no point did Mr. Tobey refuse to undergo the enhanced screening procedures. Nor did he decline to do anything requested of him. In fact, Mr. Tobey alleges that he “remained quiet, composed, polite, cooperative and complied with the requests of agents and officers.”

RIC police officers Vann and Mason arrived on the scene and immediately handcuffed and arrested Mr. Tobey. None of the TSA agents informed RIC police of what occurred at the screening station, nor did RIC police ask. Officer Vann escorted Mr. Tobey to a side area and informed him he was under arrest for creating a public disturbance. Agent Doe searched Mr. Tobey’s belongings, removing unidentified items. Officer Mason then collected Mr. Tobey’s belongings with assistance from Agents Smith and Doe.

Mr. Tobey was then taken to the RIC police station where Officer Vann and other officers questioned Mr. Tobey and threatened him with various criminal sanctions. Mr. Tobey was eventually charged with disorderly conduct in a public place. See Va. Code Ann. § 18.2-415. The officers later released Mr. Tobey after consulting with an Air Marshal from the Federal Air Marshal’s Joint Terrorism Task Force. In total, Mr. Tobey was held for over an hour. Mr. Tobey boarded the plane without further incident. The Commonwealth Attorney for Henrico County subsequently dropped the disorderly conduct charge.

He survives qualified immunity analysis:

These legal conclusions are well supported by the facts laid out in Mr. Tobey’s complaint. Mr. Tobey alleges that he removed his sweatpants and t-shirt to reveal the text of the Fourth Amendment on his chest. Appellants told him that he did not have to remove his clothing, but he responded that he wished to express his views that the screening process was unconstitutional. Immediately after this assertion, Appellants engaged RIC police officers to arrest him.

They handcuffed and seized him with no questioning and without telling him why he was being arrested. In short, Mr. Tobey’s complaint satisfies all three elements of a First Amendment claim as he alleges: (1) he engaged in constitutionally protected non-violent protest; (2) he was seized as a result of the protest; and (3) the temporal proximity of his peaceful protest and his arrest, unsupported by probable cause, shows Appellants engaged in impermissible retaliation. Cf. Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (observing that “the timing of the search raises an inference of retaliatory motive”). The factual allegations in the complaint, viewed as a whole, have “facial plausibility” that “allow[] the court to draw reasonable inference that the defendant[s] [are] liable for misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This is not a case where the complaint is merely “threadbare recitals of a cause of action’s elements supported by mere conclusory statements.” Id. These factual allegations, when viewed as accurate, adequately support Mr. Tobey’s legal assertion that he was unlawfully seized in retaliation for exercising his protected First Amendment rights.

CNN: How your movements create a GPS ‘fingerprint’ by Doug Gross, CNN:

(CNN) — Can you be identified only by where you take your phone? Yes, according to a new study, which finds it’s not very hard at all.

While most of us are free to go wherever we want, our daily and weekly movement patterns are pretty predictable. We go to work, to school, to church, to our neighborhood gym, grocery store or coffee shop, and we come home — all quietly tracked by the GPS in our phone.

And with nothing more than this anonymous location data, someone who wanted to badly enough could easily figure out who you are by tracking your smartphone. Patterns of our movements, when traced on a map, create something akin to a fingerprint that is unique to every person.

And, The growing push to track your location indoors by Doug Gross, CNN:

(CNN) — Sure, the GPS on your phone or dedicated device can get you from Point A to Point B on the interstate, frustrating “Calibrating … calibrating …” moments aside.

But a new move in mobile tech is seeing startups who want to help you find the store you’re looking for in the mall, turn around when you’re getting farther from your terminal at the airport or figure out where your friends are in an expansive convention hall.

And the big guys of the tech world are taking notice.

Allegations of a punitive strip search in a women’s prison where other inmates could see it stated a claim. “But it is settled that the law demands an adequate need for a strip search, and, depending on the circumstances and context, restricts the scope, manner, and place of the search. … Here, the excessively invasive nature of the search outweighed any need to conduct it in such a fashion.” This overcomes the otherwise broad power to search inside a prison. Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560 (6th Cir. 2013).

“The claimant has alleged a colorable interest in the defendant currency and satisfied the threshold burden to establish standing.” United States v. $1,074,900.00 in United States Currency, 2013 U.S. Dist. LEXIS 11545 (D. Neb. January 3, 2013).*

There was a fact dispute on plaintiff’s arrest sitting in a car allegedly smoking marijuana, and that denied qualified immunity. Pane v. Gramaglia, 2013 U.S. App. LEXIS 2049 (2d Cir. January 30, 2013).*

Florida v. Jardines, 2013 U.S. LEXIS 2542, 2013 WL 1196577 (U.S. March 26, 2013): Dog sniff at the door of a home is a “search” under Jones requiring probable cause and a warrant.

The syllabus:

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

Held: The investigation of Jardines’ home was a “search” within the meaning of the Fourth Amendment. Pp. 3–10.
(a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3. Pp. 3–4.
(b) At the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511. The area “immediately surrounding and associated with the home”—the curtilage—is “part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U. S. 170, 180. The officers entered the curtilage here: The front porch is the classic exemplar of an area “to which the activity of home life extends.” Id., at 182, n. 12. Pp. 4–5.
(c) The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing by a home “on public thoroughfares,” California v. Ciraolo, 476 U. S. 207, 213, but “no man can set his foot upon his neighbour’s close without his leave,” Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5–8.
(d) It is unnecessary to decide whether the officers violated Jardines’ expectation of privacy under Katz v. United States, 389 U. S. 347. Pp. 8–10.

73 So. 3d 34, affirmed.

SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY and BREYER, JJ., joined.

I figured this outcome because of the higher protection of the home running from Payton to Kyllo. I did not think it would be 5-4, nor did I think Breyer would dissent nor Thomas be in the majority. (I thought it would be 6-3 with Roberts, Alito, and Thomas dissenting. Kennedy truly is a loose cannon.)

And, my friends in Florida say the name is pronouced “Har-day-nis.”

This case is important on curtilage.

Philly.com: Report finds problems persist with city’s stop-and-frisk policy:

Although the number of Philadelphians stopped under the city’s controversial stop-and-frisk policy has dropped by 15 percent, an analysis by civil rights groups shows that many stops are still made without “reasonable suspicion.”

The American Civil Liberties Union and the law firm of Kairys, Rudovsky, Messing & Feinberg filed a report in federal court today that found that the number of stops had decreased from 253,000 in 2009 to 215,000 in 2012, but a large number of the stops — 45 percent violated the right to be free from unreasonable searches and seizures.

Warrantless.org: Raytheon’s “Riot” Software: Big Data Analytics and Data Security for Activists by Alex Marthews from the Campaign for Digital Fourth Amendment Rights:

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Oil and gas drilling is a highly regulated industry, and state officials did not violate the Fourth Amendment by an inspection to see if ground water was being contaminated. Defendants were indicted for injecting “produced water” from a well into a sinkhole in violation of the Safe Drinking Water Act. United States v. Stinson, 2013 U.S. Dist. LEXIS 41241 (W.D. Ky. March 25, 2013):

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Defendant was arrested outside his apartment, and a protective sweep of the apartment was unjustified. State v. Boyd, 2013 Ohio 1067, 2013 Ohio App. LEXIS 950 (2d Dist. March 22, 2013):

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