A time frame in the search warrant to limit the breadth of the search would have been better, but the circuit law on that isn’t clear that it’s required, and that thus triggers the good faith exception. United States v. Levy, 2013 U.S. Dist. LEXIS 25508 (S.D. N.Y. February 25, 2013):

Undoubtedly, it would have been preferable if the Government had included a more specific time frame in the Search Warrant. However, “[t]he Second Circuit has not yet addressed the impact of the absence of a time frame to the particularity of a search warrant.” Hernandez, 2010 U.S. Dist. LEXIS 719, 2010 WL 26544, at *11. The Court need not resolve whether the lack of a time limit renders the Search Warrant unconstitutional because the continuing uncertainty in this Circuit regarding this issue triggers the good-faith exception to the exclusionary rule. See 2010 U.S. Dist. LEXIS 719, [WL] at *12; Cohan, 628 F. Supp. 2d at 367.

Thus, “close” only applies in horseshoes, nuclear war, and the good faith exception.

Grits for Breakfast: Bill filed to require warrant for GPS tracking of cell phones:

Woo Hoo! Many thanks to state Rep. Bryan Hughes (R-Mineola) for filing HB 1608, which would require police to obtain a warrant to access location tracking data from your cell phone or other wireless communications device. Rep. Hughes sits on the House Criminal Jurisprudence Committee which would likely hear the legislation. Thanks also to the volunteers who’ve been helping promote the idea at the Lege, along with EFF-Austin, ACLU of Texas and Texans for Accountable Government, who have now formed a coalition to support the bill.

http://gritsforbreakfast.blogspot.com/2013/02/bill-filed-to-require-warrant-for-gps.html

WaPo: Sotomayor, Kagan ready for battles by Dana Milbank:

For a quarter-century, Antonin Scalia has been the reigning bully of the Supreme Court, but finally a couple of justices are willing to face him down.

As it happens, the two manning up to take on Nino the Terrible are women: the court’s newest members, Sonia Sotomayor and Elena Kagan.

The Arkansas Governor two days ago signed 2013 Ark. Act 168, An Act Concerning Training Requirements for Canine Law Enforcement Units, specifying training for drug dogs that effectively implements the admonition of Florida v. Harris, noted here (syllabus) and here (LA Daily Journal: Dog sniff ruling doesn’t smell so bad after all by Allison B. Margolin).

The entirety of Act 168:

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Daily Kos: While Millions Hotly Debate the Second Amendment, the Fourth Amendment is Dying a Quiet Death by Richard Riis:

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One of my favorite quotes about the Fourth Amendment is Frankfurter’s 1948 comment “[W]here one comes out on a case depends on where one goes in.” So, too, of DNA testing arrestees. See NYTimes: Justices Wrestle Over Allowing DNA Sampling at Time of Arrest by Adam Liptak:

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In a nighttime search case, the safety of children on the premises with a meth lab could be considered by the police and courts in issuing a nighttime search warrant. While all the prior case law deals with officer safety and a nighttime search, here it needed to mean that the children were generally at risk and the warrant happened to be sought at nighttime. That is not a valid reason for a nighttime search warrant. However, the officers were acting in good faith, and this nighttime search would not be suppressed. [Presumably the next one would? The dissenters seem to think not.] State v. Tyson, 2012 Ark. 107, 388 S.W.3d 1 (2012) (4-3):

Additionally, as evidenced by this split opinion, this court cannot unanimously agree in the exact interpretation of the language in Rule 13.2(c)(iii). Therefore, we cannot hold that an officer should have known that the threat of immediate harm to the children inside a trailer with an active methamphetamine lab was not the type of reasonable cause covered by Rule 13.2(c)(iii) to execute the search warrant in hand that had been considered and signed by a judge. Accordingly, we hold that the Leon good-faith exception applies under these circumstances and that the circuit court erred in suppressing the evidence from the nighttime search and seizure.

One curious part of this case is the fact that Arkansas has a rule-made good faith exception that it did not even discuss. So why have it?

During execution of a search warrant that include the “person” of the defendant, he was told to remove his pants so the officers could check for hidden pockets. He told them he had no underwear on, and that made it a strip search. A strip search is so intrusive that a search warrant cannot include a strip search unless there is a showing of a need for one. People v. King, 292 P.3d 959 (Colo. App. 2011):

We find persuasive the holdings of the Virginia and New York courts, and of the First, Second, Fifth, Ninth, Tenth, and Eleventh Circuits and conclude as a matter of law that strip searches are outside the scope of a warrant for a search “upon person.” Strip searches are distinct from general searches in that they are more invasive and subject the person being searched to potential humiliation and degradation. For that reason, strip searches must be authorized by a warrant allowing strip searches that includes an articulable basis for the more invasive search, or by officers having particularized reasonable suspicion that the defendant has hidden contraband on his body.

Stop was without justification; how could officer tell occupants of a car were nervous along side of them? This is no more than an “unparticularized suspicion or hunch.” State v. Canty, __ N.C. App. __, 736 S.E.2d 532 (2012).*

Based on the testimony at the suppression hearing, a handyman had been given apparent authority to consent to an entry so that the police could enter on a knock-and-talk. Defendant then consented to a search. Briggs v. State, 2012 Ark. App. 692, 2012 Ark. App. LEXIS 812 (December 12, 2012).*

The officer stopping defendant’s car saw marijuana seeds and stems and a cut open cigar. He asked if there was more and it was produced. This was probable cause for a more intensive search under the automobile exception. State v. Carmichael, 2012 Ohio 5923, 2012 Ohio App. LEXIS 5103 (9th Dist. December 17, 2012).*

Officers lawfully in defendant’s place with an arrest warrant saw a gun and ammunition in plain view, so the seizure was valid. United States v. Lyons, 488 Fed. Appx. 40 (6th Cir. 2012).*

Defendant argued that one question from the officer expanded the scope of a traffic stop. The court concludes, however, that his shaking and obvious nervousness and deflection when the question was asked was reasonable suspicion. One question could be enough, but not here. State v. Smith, 814 N.W.2d 346 (Minn. 2012)*:

[W]e conclude that Smith’s extreme shaking and his evasive response when asked about his shaking provided the officers with reasonable, articulable suspicion sufficient to support an expansion of the traffic stop. In essence, because we conclude that the officers had reasonable, articulable suspicion to support the alleged expansion of the stop, we assume without deciding that Ehrhardt’s question caused an incremental expansion in the scope of the traffic stop.1
1 We are not persuaded by the State’s argument that a question cannot expand the scope of a traffic stop. Instead, we recognize that even a single question, depending on its content, could expand the scope of a traffic stop under other facts.

It was not an improper threat to get consent for a police officer to stay in the home until a search warrant was obtained. They had enough information to get a search warrant, and they could stay in his house a reasonable time until a search warrant had been obtained. Consent was otherwise voluntary. State v. Mullien, 140 Conn. App. 299, 58 A.3d 383 (2013).*

Defendant’s 2255 motion for defense counsel’s failure to raise a search incident issue is denied. That issue came up during trial when defendant said he was dissatisfied with defense counsel for the same reason, and the court heard argument and determined that the facts don’t support a valid search incident claim. That opinion hasn’t changed. United States v. Gee, 2012 U.S. Dist. LEXIS 184449 (N.D. Fla. November 28, 2012).*

Police received a 911 call about potential credit card fraud from a known person. When they arrived, the stop was reasonable in length to investigate the circumstances. One defendant’s disavowing ownership of a laptop computer seized during a roadside investigation is a disavowing of standing to challenge its search when it was seized. United States v. Phillips, 2013 U.S. Dist. LEXIS 5562 (M.D. Tenn. January 14, 2013).*

Arranged and completed drug deal was probable cause for issuance of a search warrant for defendant’s house because it was a logical inference that he would keep the drugs there. United States v. Savoy, 883 F. Supp. 2d 101 (D. D.C. 2012)*:

Based on a totality of the circumstances, the magistrate’s approval of a search warrant for Hudson’s home was reasonable. The affidavit supporting the warrant application was based on a combination of factors, including information from two cooperating witnesses previously determined reliable by the FBI, interpretations of coded conversations by SA Ray, the prior narcotics involvement of both men, two unexplained meetings between Hudson and Savoy in parking lots, and the seizure of five bags of cocaine from Hudson shortly after he had discussed meeting with Savoy to get “five.” These were sufficient to support a finding of probable cause that Hudson was engaged in narcotics trafficking with Savoy.

Furthermore, D.C. Circuit precedent supports the inference that evidence of narcotics trafficking would be found in Hudson’s home, despite the fact that most evidence of it was derived from activity that may have taken place elsewhere. See United States v. Johnson, 437 F.3d 69, 71-72, 369 U.S. App. D.C. 321 (D.C. Cir. 2006); Spencer, 530 F.3d at 1007 (“Common experience suggests that drug dealers must mix and measure the merchandise, protect it from competitors, and conceal evidence of their trade … in secure locations. For the vast majority … the most convenient location to secure items is the home.”).

Defendant was arrested in his underwear, and it was reasonable for officers to search his pants before he put them on. A USB drive and his NY DL were found. His iPhone and iPod were also lawfully seized because they were within three feet of him when he was arrested. United States v. Meregildo, 883 F. Supp. 2d 523 (S.D. N.Y. 2012).

Defendant was stopped as matching the description of a burglar who had just left a dwelling and was seen on the street blocks away when the officer found him, matching the description, and having the first name of the burglar who was known to the victim. An object of the theft reported to the police was a bank card. In a search incident, the victim’s bank card was found in his pocket. When the victim was presented with the opportunity to make an ID, he said that the defendant was not the one. There was still probable cause for the search incident to arrest. The victim’s refusal to make an ID didn’t require the questioning end. Southall v. State, 2012 Alas. App. LEXIS 147 (September 26, 2012).*

A supervisor set up this roadblock, not a line officer, and that was sufficient under state law. Williams v. State, 317 Ga. App. 658, 732 S.E.2d 531 (2012).*

Defendant agreed at the trial court that there was no suppression issue, and the trial court found the search legal. Just because the trial court sustained the search, the defendant waived any challenge to the search by agreeing in the trial court. People v. Cordova, 293 P.3d 114 (Colo. App. 2011):

At trial, defendant did not contend that the search violated the Constitution. Nor did he direct the court to the applicable constitutional considerations or explain how those principles should be applied to the evidence the prosecution presented. To the contrary, defense counsel told the court there was “no reason to suppress” the knives based on an improper search. Thus, although the court ruled that the vehicle search and the seizure of the knives were proper, it did so without the benefit of a complete record and argument addressing the specific issues defendant now raises.

Therefore, we reject defendant’s contentions that the court’s ruling preserved the issue and that we should review that ruling for constitutional harmless error. Instead, we conclude that defendant waived the legality of the search and that the court’s ruling did not negate that waiver. Accordingly, we decline to address the legality of the search.

[posted 10/23]

Because the dog sniff happened quickly, the stop was not unreasonable in its length. Smith v. State, 981 N.E.2d 1262 (Ind. App. 2013).* [Cases like this should scare us all. Do they mean that law enforcement can sniff any car as long as a drug dog can get there in five minutes? What does that say about us as a nation? Even those of us not carrying dope would be grossly offended if the police could use a drug dog on all of us.]

Defendant’s standing is tenuous at best, but he loses on the merits of the automobile exception anyway. United States v. Campbell, 2013 U.S. Dist. LEXIS 16535 (N.D. Ala. January 4, 2013), adopted 2013 U.S. Dist. LEXIS 15805 (N.D. Ala., Feb. 6, 2013).*

Defendant was a mere visitor to the apartment searched, so she doesn’t have standing. United States v. Clements, 2012 U.S. Dist. LEXIS 185740 (W.D. N.Y. November 30, 2012).*

Even though this issue has already been argued in SCOTUS, something not even mentioned by this court, a dog sniff at defendant’s front door is not unreasonable. The dog’s alert was PC for a search warrant. Perez v. State, 981 N.E.2d 1242 (Ind. App. 2013):

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Drawing a gun during a traffic stop until backup could arrive to freeze the situation was still not an arrest, and it’s governed by Terry. Billingsley v. State, 980 N.E.2d 402 (Ind. App. 2012).*

Following Fifth Circuit precedent, the search incident of defendant’s cell phone was reasonable. It was found on his person at the time of the arrest. United States v. Rodriguez, 702 F.3d 206 (5th Cir. 2012).*

After an apparent drug buy from a house, the police followed the buyer and arrested him. With that information they did a knock and talk with seven officers of the house. A purse in the basement with no people around was not subject to search because nothing suggested a safety risk. Commonwealth v. Brooks, 388 S.W.3d 131 (Ky. App. 2012).*

A police officer’s wife, also an officer, reported to the Chief that her husband was using steroids, and the department ordered a drug test. The test was valid under Skinner and Von Raab because he carried a gun and was arresting drug defendants, and there was individualized suspicion from the wife’s report. Green v. City of North Little Rock, 2012 Ark. App. 21, 388 S.W.3d 85 (2012):

We also note that, in the present case, not only did the test meet the general reasonableness standard, but the City actually had some “measure of individualized suspicion.” Id. As mentioned above, Bradley determined that he had reasonable suspicion to order a drug test of Green based not solely on Green’s ex-wife’s allegation about the bag of syringes and the bank statements showing purchases of steroids, but also on his own personal observation of Green’s physical appearance and recent aggressiveness, traits which Bradley associated with the use of anabolic steroids. The Police Department’s drug policy provides that an officer may be required to submit to chemical testing “[w]hen the City has reasonable suspicion that a member has violated any of the [policy’s] prohibitions regarding use of alcohol or drugs.” Under the policy, “reasonable suspicion” must be “based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the member.” Clearly, Bradley’s observations, coupled with Carmen Green’s allegations, provided the Police Department with reasonable suspicion to order Green to submit to a drug test.

Defendant consented to stay and talk to the officer after the paperwork was returned after a traffic stop. United States v. Santana-Gomez, 2012 U.S. Dist. LEXIS 128147 (W.D. Okla. September 10, 2012)*:

Upon careful review of the parties’ submissions and the testimony presented at the hearing, the Court finds that Lt. Glass’ further questioning unrelated to the initial stop occurred after Lt. Glass returned defendant’s license and registration and informed defendant that he was “good to go.” Although Lt. Glass posed further questions to defendant within seconds of saying defendant was “good to go,” Lt. Glass did nothing to reasonably indicate that defendant was not free to leave. In fact, a review of Lt. Glass’ in-car video of defendant’s stop shows that Lt. Glass did not coerce the defendant by raising his voice, brandishing his weapon, removing his canine from the back seat, or calling for another officer.

Defendant’s appellate argument only presents the defendant’s version of the evidence which the district court rejected. Appellate review grants deference to the trial court’s findings of fact which are essentially overlooked, and they are not clearly erroneous. United States v. Snellgrove, 488 Fed. Appx. 827 (5th Cir. 2012).*

Oregon’s HB3200 on inspection of assault rifles violates the Fourth Amendment. It suffers the same defect as Washington’s SB 5737’s § 2(5)(a) posted here. That one was later labeled “a mistake” by its author.

HB3200 provides:

SECTION 4. (1) Any person seeking to register an assault weapon or large capacity magazine shall do so as provided in this section within 120 days after the effective date of this 2013 Act.
…
(5) A registered owner of an assault weapon or large capacity magazine is required to:
(a) Securely store the assault weapon or large capacity magazine pursuant to rules and regulations adopted by the department;
(b) Allow an inspector from the department to inspect the storage of assault weapons and large capacity magazines to ensure compliance with this subsection; …