State procedures for conducting sobriety checkpoints were not faithfully followed, but violation of a state rule does not make a Fourth Amendment violation. This roadblock was still constitutionally reasonable. State v. Cook, 2013 Del. Super. LEXIS 73 (February 13, 2013).

The search warrant had a [probable cut and paste] error, seeking marijuana instead of methamphetamine. That was a technical error that could be overlooked. Norton v. State, 2013 Ga. App. LEXIS 181 (March 13, 2013).

An officer saw a hand-to-hand drug transaction from an apartment at night. He approached the door and knocked, and in plain view just inside the door were drugs and drug paraphernalia. His entry into the apartment was for a felony in progress and was reasonable. State v. Goode, 2013 Ohio 958, 2013 Ohio App. LEXIS 835 (2d Dist. March 15, 2013).*

Law.com: Parties Gear Up for 8-Week Bench Trial Over Police Stops by Mark Hamblett:

Lawyers for New York City will be waging an uphill battle starting March 18 as they try to convince a federal judge, who has seemed skeptical so far, that the Police Department’s stop-and-frisk anti-crime policies comport with the Fourth Amendment.

Plaintiffs challenging the policies have the burden of proving by a preponderance of the evidence that the police target people for stops based on race, without the constitutionally mandated reasonable suspicion that the individual has committed, is committing or is about to commit a crime. Police must have reasonable suspicion a person is armed to frisk them.

The plaintiffs are not seeking money damages in Floyd v. City of New York, 08 civ. 01034. Instead, they are asking Southern District Judge Shira Scheindlin (See Profile), who will conduct a bench trial that could last eight weeks, to find the city liable and ultimately appoint a monitor to oversee the NYPD’s compliance with any remedial order.

The non-disclosure provision of National Security Letters violates the First Amendment as a prior restraint, and it is nonseverable from the rest of the statute. Therefore, the statute is unconstitutional and NSL’s may not be issued. The order is stayed for 90 days to give the Court of Appeals the opportunity to address it. In re National Security Letter, No. C 11-02173 SI (N.D. Cal. March 15, 2013):

For the reasons discussed below, the Court finds that the NSL nondisclosure and judicial review provisions suffer from significant constitutional infirmities. Further, these infirmities cannot be avoided by “conforming” the language of the statute to satisfy the Constitution’s demands, because the existing statutory language and the legislative history of the statutes block that result. As such, the Court finds section 2709(c) and 3511(b) unconstitutional, but stays the judgment in order for the Ninth Circuit to consider the weighty questions of national security and First Amendment rights presented in this case.

See eff.org: National Security Letters Are Unconstitutional, Federal Judge Rules; Wired.com.

“The police entry into defendant’s home after waiting only one to five seconds after knocking and announcing violated her right to be free of unreasonable searches under the New Mexico Constitution.” Violation of the knock-and-announce requirement is fundamental and requires exclusion under the state constitution. (Hudson is cited, but not discussed.) State v. Jean-Paul, 2013 NMCA 032, 2013 N.M. App. LEXIS 13 (January 22, 2013):

P18 The State also contends that the futility exception applies because Dickson knew of the police officers’ presence. Again, however, it is not sufficient that occupants know of the police’s presence; they must also know of the police’s purpose and authority for being there. We recognize that in this case the officers could have reasonably believed that what Dickson saw when he was facing the direction of the window was six uniformed officers carrying a battering ram and approaching the house. While these facts might come closer to providing a reasonable suspicion that Dickson knew that the officers were there to execute a warrant than those cases in which the occupant of a home simply sees an officer outside of the door, we nevertheless conclude that these facts do not support a reasonable suspicion that Dickson knew that the officers were there to search the home pursuant to a warrant. This is not a case in which occupants of a home engaged in any conduct evincing a consciousness of guilt or some other action that would demonstrate that they knew why the police were there.

P19 Furthermore, even if these facts did give rise to such a reasonable suspicion, we would nevertheless conclude that the futility exception does not apply. New Mexico has only applied the exception when there has been an affirmative act of refusal by an occupant of the premises because such action more clearly demonstrates that an occupant does not intend to voluntarily permit the police to enter than does a mere brief period of inaction. …

P26 The State argues that the fact that Dickson was seen by the police in the window and then not seen provides a reasonable suspicion that either he or Defendant was destroying evidence. Although the record is somewhat ambiguous as to when Dickson was seen and not seen, if his movement away from the window occurred prior to the officers’ announcement of their presence and purpose, we cannot reasonably conclude that the fact that someone moves about a residence knowing that the police are outside, but not knowing that they are there to execute a warrant, gives rise to the inference that he is destroying evidence. …

The stop continued for 10 minutes, but it was complicated by defendant’s paperwork, and it was only as long as required. After that, he was validly asked for consent. United States v. Aponte, 2013 U.S. Dist. LEXIS 34017 (D. Neb. March 12, 2013).*

Defendant was driving a truck of a friend with a loud muffler, and the noise attracted the officers’ attention, and they saw him speeding. When pulled over, defendant had no paperwork for the truck, and his story was changing. Extending the stop was reasonable under the circumstances. United States v. Bernal, 2013 U.S. Dist. LEXIS 34822 (D. Guam March 11, 2013).*

On the totality, with information from other officers, officers had probable cause that defendant was involved in a hit and run, and that justified his stop. United States v. Perkins, 2013 U.S. Dist. LEXIS 34861 (D. Minn. January 11, 2013).*

Officers got a tip of a man with a gun wearing a leather jacket with a hoodie on the street. Responding, defendant matched the description. When he saw a gun in defendant’s waistband, the report, even if anonymous, was completely corroborated. When defendant ran into a building, that was hot pursuit under Warden v. Hayden. United States v. Mallory, 2013 U.S. Dist. LEXIS 33532 (E.D. Pa. March 11, 2013).

Where defendant’s own version of the events shows the search to be legal, a hearing isn’t required. United States v. Young, 2013 U.S. Dist. LEXIS 33496 (W.D. N.Y. January 16, 2013).*

The state conceded standing, but the appeals court disagreed because it was a rental car that defendant had never been in. Even assuming there was a Fourth Amendment violation, the state showed inevitable discovery. State v. Horsley, 2013 Ohio 901, 2013 Ohio App. LEXIS 793 (4th Dist. February 8, 2013).*

Defendant’s car was searched with probable cause, so her consent issue on appeal is irrelevant. United States v. Carter, 2013 U.S. App. LEXIS 4908 (5th Cir. March 11, 2013).*

While the stop was long (31 minutes), there was no evidence that the officer did anything other than pursue the license and registration issues. While the officer testified that he extended the stop based on reasonable suspicion, his discussion with the driver never varied from the license and registration issues, so his own opinion isn’t determinative. Finally, the search of the car was by consent. United States v. Aponte, 2013 U.S. Dist. LEXIS 34017 (D. Neb. March 12, 2013).*

There was probable cause for defendant’s arrest for bank robbery because he was found looking for the getaway car in a residential neighborhood where the driver had been arrested with the key. He matched the description and there were other factors linking him. Because a suppression motion would be meritless, defense counsel cannot be ineffective. Emanuel v. United States, 2013 U.S. Dist. LEXIS 33014 (M.D. Fla. March 11, 2013).*

The officer’s version of Oregon law on what is an obscured LPN was a mistake of law and can’t support the stop. During the stop, one passenger got out and stared intently at the officer. That wasn’t reasonable suspicion. The driver’s consent to wait for a drug dog did not extend to his passengers, necessarily stopped with him. United States v. Pina-Lopez, 2013 U.S. Dist. LEXIS 32353 (D. Ore. March 8, 2013).

Class action status denied to all persons strip searched under an “all persons present” clause in all city police search warrants. Plaintiff prevailed in his case in the NY Court of Appeals, but can’t represent all others subjected to it whenever. Mothersell v. City of Syracuse, 2013 U.S. Dist. LEXIS 32085 (N.D. N.Y. March 8, 2013).*

Considering all the testimony on consent, the court finds the testimony of the officers more credible and the consent valid. United States v. Abney, 2013 U.S. Dist. LEXIS 31336 (D. N.J. March 6, 2013).*

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I ignored this story as just another “local cops do bad” until I saw it linked about ten times over the weekend, attesting to the power of having video:

Dallas News: Did Garland police officers violate a homeowners’ Fourth Amendment rights? by Tanya Eiserer

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The search warrant was for evidence of a photograph of sexual abuse of a known girl, therefore child pornography. While the time frame for the alleged sexual assault of the girl was not mentioned, and that troubles the court, the good faith exception saves the warrant on the totality. United States v. Cortes, 2013 U.S. Dist. LEXIS 32773 (D. Minn. March 6, 2013) R&R 2013 U.S. Dist. LEXIS 32767 (D. Minn. January 25, 2013).*

Report from a 13-year-old girl that defendant took pictures of her genitalia when she was 8 supported a search warrant despite the claims of staleness. “For these reasons, the Court rejects Mr. Carroll’s staleness arguments because, as Seiver held, staleness arguments are ‘rarely relevant when it is a computer file [because c]omputers and computer equipment are not the type of evidence that rapidly dissipates or degrades.’ 692 F.3d at 777.” United States v. Carroll, 2013 U.S. Dist. LEXIS 32941 (S.D. Fla. March 11, 2013).*

Defense counsel was not ineffective for not raising that defendant’s stop violated Terry where the officer suspected defendant was involved in a robbery. This was a clearly unmeritorious Fourth Amendment claim. Emanuel v. United States, 2013 U.S. Dist. LEXIS 33014 (M.D. Fla. March 11, 2013).*

ProPublica: Everything We Know About What Data Brokers Know About You by Lois Beckett:

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Grits for Breakfast: “Bypassing the telecoms: ‘Stingrays’ allow direct government phone surveillance with little oversight” (link below):

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Defendant contended that the room in the apartment searched by the police by his roommate’s consent was his. The facts presented to the police at the time, however, showed that the apartment was the roommate’s and she had complete control over it. Therefore, the police were objectively reasonable relying on her apparent authority, even though she may not have had actual authority. Actual authority was not shown at the hearing, so the government wins on apparent authority. United States v. Dantzler, 2013 U.S. Dist. LEXIS 31493 (E.D. N.Y. February 7, 2013).*

Defendant’s roommate called the police to tell them that he had child pornography on his computer left behind at her house. The FBI was already investigating him for child pornography. She let the police in to seize the computer. A search warrant was obtained for the computer, and defendant resisted complaining of a Franks violation of false information in the affidavit. The trial court found it negligent at best, but even removing the information did not undermine the probable cause for the warrant, so the search was good. Lamarre v. State, 2013 Tex. App. LEXIS 2198 (Tex. App. – San Antonio March 1, 2013).*

Defendant entered a convenience store when he saw the police, left his backpack in the storage room, and then left the store. That was an abandonment. State v. Milan-Wade, 2013 Ohio 817, 2013 Ohio App. LEXIS 720 (8th Dist. March 7, 2013).*

Defendant’s patdown was justified because, once stopped, the officer recognized him as somebody involved with narcotics and all the factors of the stop coalesced into reasonable suspicion. State v. Montague, 2013 Ohio 811, 2013 Ohio App. LEXIS 705 (2d Dist. March 8, 2013).*

The record supported the trial court’s conclusion defendant consented to the blood draw in this OVI case. State v. Sheppeard, 2013 Ohio 812, 2013 Ohio App. LEXIS 713 (2d Dist. March 8, 2013).*

A report of two men in a particular car dealing drugs in a high crime area that was corroborated before the stop, plus their suspicious actions, justified a frisk. State v. Taylor, 2013 Ohio 814, 2013 Ohio App. LEXIS 709 (2d Dist. March 8, 2013).*

Plaintiff was acquitted of domestic battery so he sued all the officers involved, and they had qualified immunity. The entry into plaintiff’s house was with the apparent authority of the victim who still had it despite having been forcibly removed by plaintiff. Hays v. Bolton, 488 Fed. Appx. 971 (6th Cir. 2012):

We have held that “magic words” are not necessary for effective consent; rather, the totality of the circumstances, including a party’s non-verbal conduct, should be considered in determining whether consent exists. See United States v. Carter, 378 F.3d 584, 588 (6th Cir. 2004) (finding consent “considering th[e] testimony and all [of] the circumstances” where an ordinary citizen would have recognized that assent had been given). Here, the totality of the circumstances suggested that Heather was a forcibly removed co-tenant with authority to consent to a warrantless search of the residence. Even assuming Heather was no longer a resident and lacked the actual authority to consent to a search, we conclude that she displayed apparent authority sufficient to justify Officers Bolton and Grassnig’s conduct under the Fourth Amendment.

Defendant’s truck was stopped at a border patrol checkpoint, and a drug dog there alerted before defendant even produced his driver’s license. The Fifth Circuit has held that the use of dogs at border patrol checkpoints is not unreasonable if they do not prolong the stop, and this one didn’t. United States v. Washington, 2012 U.S. Dist. LEXIS 184188 (S.D. Tex. October 16, 2012).*

Among appellant’s post-conviction issues, there appeared to be a genuine issue of fact on consent, whether it was valid, and whether defense counsel was ineffective for not objecting. Logan v. State, 2013 OK CR 2, 293 P.3d 969 (2013).*

Defendant’s stop for failure to dim headlights was justified, although it appeared after the stop that the headlights might have been unusually bright. Nevertheless, the stop was objectively reasonable, and the conviction for driving on a suspended license is affirmed. This is not a situation where the reasonable suspicion was dispelled before interaction with the driver, as sometimes happens with LPN stops. State v. Bonacker, 2013 SD 3, 825 N.W.2d 916 (2013).*

Gant is retroactive under the Washington Constitution and applies to all nonfinal cases. State v. Louthan, 175 Wn.2d 751, 287 P.3d 8 (2012).

Defendant’s postconviction claim of unsworn affidavits for search warrant is shown to be false. Johnson v. State, 2012 Fla. LEXIS 2276 (November 8, 2012),* connected case, Johnson v. State, 104 So. 3d 1010 (Fla. 2012).*

Defendant was found to have consented to an entry into his curtilage where the police waited and got permission to enter the yard. State v. Collins, 101 So. 3d 557 (La. App. 3 Cir. 2012).*

A constable had a court order he was serving to have defendant tenant’s gas turned off because others in the apartment building could smell the gas, and it was feared dangerous. When the constable came to the apartment with a gas technician to deal with it, defendant at the door acted like he had a gun in hand, and a gun was seen behind him. His actions accentuated the sense of emergency, and the constable and gas company representative lawfully entered defendant’s house to neutralize the gas issue under exigent circumstances. The civil court order satisfied the warrant requirement of the Fourth Amendment and state constitution. The officers had to call for an experienced firearms tech to neutralize all the guns. In the course of that he found a bomb. Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 982 N.E.2d 52 (2013).

During defendant’s recorded police interview played for the jury, it came out that he refused consent of his cell phone. Agreeing that refusal of consent shouldn’t come before the jury, this was an isolated reference and the court isn’t convinced it was prejudicial. State v. Pellegrini, 2013 Ohio 141, 2013 Ohio App. LEXIS 116 (3d Dist. January 22, 2013).*

Information to the arresting officers that there were likely guns and another person on the premises justified a protective sweep along with the arrest. United States v. Cody, 2012 U.S. Dist. LEXIS 132914 (E.D. Tenn. August 9, 2012).

Defendant waived his argument regarding the admissibility of his cell phone records because he failed to file a pretrial motion to suppress the evidence, Rule 12(b)(3)(c). Also, he never asked the district court or the court of appeals to relieve him from the waiver, and he had not provided any explanation for why he failed to file a motion to suppress the evidence from his cell phone. The court declined to consider his ineffective assistance challenge on direct appeal, and he was relegated to a 2255 for that. United States v. Saucedo, 489 Fed. Appx. 3902 (11th Cir. 2012).*

In a search warrant for harboring illegal aliens for purposes of commercial sex, the government showed probable cause for the search warrant. United States v. Delarosa, 2012 U.S. Dist. LEXIS 132470 (N.D. Ga. August 27, 2012).*

A face-to-face report from a confidential informant is entitled to more weight by law enforcement because they can better judge the informant’s credibility. United States v. Lawing, 703 F.3d 229 (4th Cir. 2012):

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