In the Duke lacrosse case, on the Fourth Amendment malicious prosecution issue, police officers who told the prosecutor that the case was weak and presented him what exculpatory evidence they had were entitled to qualified immunity. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012):

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Defendant in his rental car was stopped, and the car was overdue. The renter wanted it impounded, and the officer did and inventoried it, not for arresting defendant for a crime. “Defendant points to nothing that requires law enforcement to release an overdue vehicle to a rental customer who has no continuing legitimate claim to the car, has been overdue in returning the car for nine days, has had payment for extra days declined by her credit card, and has personalized the vehicle by adding tint to the windows, when the legitimate owner — the rental company — has requested that the car be impounded. [¶] And, once Detective Wagenmann agreed to impound the car for Advantage, he was subject to the City of Miami Gardens Police Department’s inventory Policy. Nor does the fact that Detective Wagenmann did not impound the car in connection with a crime affect the analysis.” United States v. Handy, 2013 U.S. Dist. LEXIS 6517 (S.D. Fla. January 15, 2013).

The stop of the car defendant was in was valid because it had been involved in a controlled buy that day. The court finds the traffic stop also valid, arresting defendant for a cracked windshield was not improper, and the subsequent inventory was valid under department policy. The stop and search was also valid under the automobile exception. United States v. Baldenegro-Valdez, 703 F.3d 1117 (8th Cir. 2013).*

Defendant was in a hotel room, and the police used a ruse to draw him out for a warrantless arrest. That was not unconstitutional. Defendant’s consent was voluntary because he was experienced with the criminal justice system, and he knew that cooperation could get him leniency. State v. Fornore, 2012 Ohio 5339, 2012 Ohio App. LEXIS 4653 (7th Dist. November 19, 2012).

Defendant defaulted his search issues by not raising them in his direct appeal. On the merits anyway he would lose because of probable cause and plain view when he dropped the gun. Rosado v. United States, 2012 U.S. Dist. LEXIS 165609 (D. Mass. November 20, 2012).*

Defendant was subjected to a patdown and the officer felt something in a pocket of his cargo pants. The officer knew it was not a weapon, but he didn’t know what it was. He asked [told] defendant to pull out the bag and then open it. This exceeded Terry. Williams v. State, 318 Ga. App. 715, 734 S.E.2d 535 (2012).

The officer did not ask dispatch to run warrants on defendant until eight minutes into the stop and after the warning ticket was written. Then the officer ignored dispatch’s response to continue the stop. The stop was too long and invalid. Weems v. State, 318 Ga. App. 749, 734 S.E.2d 749 (2012).*

“Prior to requesting consent to search, Sergeant Mathews asked Berry if there was ‘anything in the vehicle [he] should be concerned with.’” Hearing that, defendant’s general consent included the entire vehicle. Berry v. State, 318 Ga. App. 706, 734 S.E.2d 527 (2012).*

The Davis good faith exception applies to GPS installed on a vehicle in 2010. Kelly v. State, 208 Md. App. 218, 56 A.3d 523 (2012).

The Eighth Circuit assumed a Fourth Amendment violation in police entry into the back room of a car dealership during a routine fire inspection that revealed what the fire marshal thought was a child pornography production facility. Without deciding whether the police violated the Fourth Amendment in the entry [a tough question], the court instead decided whether the good faith exception applied based on how the investigation started, the entry into the area, and the obtaining of the search warrant. The court concluded that the good faith exception applied, and the search would not be suppressed. Defendant’s computer was seized and child pornography was found. The police conduct was objectively reasonable. United States v. Cannon, 703 F.3d 407 (8th Cir. 2013):

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Defendants were stopped for excessive tinting, and the officer could smell marijuana. The officers then had probable cause to search the car and arrest defendants, and it did not matter if the officer arrested first and searched later. State v. Sarria, 2012 Fla. App. LEXIS 9953 (Fla. 4th DCA June 20, 2012).*

Defendant who borrowed his fiancee’s car to commit a bank robbery was not shown to have a reasonable expectation of privacy in it when it was searched. People v. Earl, 297 Mich. App. 104 (June 19, 2012)*:

The mere fact that defendant was engaged to the owner-driver does not endow him with an ownership interest in the vehicle or a reasonable expectation of privacy in it. Although defendant claims that his fiancée allowed him to use the vehicle, he did not show a continuous use of and right of access to the vehicle. Thus, defendant failed to carry his burden of demonstrating that he had a legitimate possessory or privacy interest in the vehicle.

While Washington recognizes pretext stops, a mixed motive is not unconstitutional. State v. Arreola, 176 Wn.2d 284, 290 P.3d 983 (2012), rev’g State v. Arreola, 163 Wn. App. 787, 260 P.3d 985 (2011):

¶1 The issue in this case is whether a traffic stop motivated primarily by an uncorroborated tip, but also independently motivated by a reasonable articulable suspicion of a traffic infraction, is unconstitutionally pretextual under article I, section 7 of the Washington State Constitution and State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999).

¶2 We hold that a mixed-motive traffic stop is not pretextual so long as the desire to address a suspected traffic infraction (or criminal activity) for which the officer has a reasonable articulable suspicion is an actual, conscious, and independent cause of the traffic stop. So long as a police officer actually, consciously, and independently determines that a traffic stop is reasonably necessary in order to address a suspected traffic infraction, the stop is not pretextual in violation of article I, section 7, despite other motivations for the stop.

Defendant and a companion were seen by police peering into a car in a purported high crime area. When they saw the officer, they walked away. That was not flight, and it did not add up to reasonable suspicion. The “high crime area” claim was discounted, too, as ambiguous on this record. United States v. Dell, 487 Fed. Appx. 440 (10th Cir. 2012) (2-1).

State probation and parole in Las Vegas has its office in a police complex, and police decided to run the license numbers of all cars in the parking garage and search those that had a probation or parole condition. Defendant’s car was searched without knowledge of his search condition, and a gun was found, and defendant was charged with FIPF. “The Government failed to prove by a preponderance of the evidence that the search of the car, conducted after the stop, was (1) based on a reasonable, particularized and objective basis for suspecting defendant of criminal activity, (2) based on the searching officer’s actual prior knowledge of defendant’s status as a supervisee, (3) properly narrowed in scope to fit the purpose of the investigatory stop, (4) consensual, or (5) justified for any other reason.” United States v. Gray, 2012 U.S. Dist. LEXIS 88744 (D. Nev. March 27, 2012), reconsideration denied 2012 U.S. Dist. LEXIS 88750 (D. Nev. May 23, 2012).*

Defendant was told he was free to leave and his papers were handed back to him. Ten seconds later he was asked for consent, and that consent broke any causal chain of what could have been an illegal detention. United States v. Ansourian, 487 Fed. Appx. 155 (5th Cir. 2012):

The second factor of intervening circumstances indicates the consent was an independent act of free will. Prior to asking for consent, Officer Averette communicated to Ansourian that “You’re free to go.” At this point, Officer Averette also returned Ansourian’s license and registration. We have previously identified both of these facts as intervening circumstances. See Jenson, 462 F.3d at 407 (holding that the second factor cut against the government because “there is no evidence that (a) [the defendant] knew he was free to leave or (b) that his license had been returned to him, both of which might be viewed as intervening circumstances”). The knowledge that one is free to leave, accompanied by the return of the license and registration, cuts the causal chain between the unconstitutional detention and the consent. …

Search of defendants’ recent call list off a cell phone was reasonable as a part of search incident where there was probable cause to connect the phone to the offense of arrest. Commonwealth v. Phifer, 463 Mass. 790, 979 N.E.2d 210 (2012):

This case falls squarely within the scope of Madera [and basic SI law]. The evidence at issue here consists of the contents of the recent call list on the defendant’s cellular telephone. The defendant does not appear to dispute that the cellular telephone itself — the physical object — was seized properly during a permissible search incident to his lawful arrest. More to the point, like the police in Madera, 402 Mass. at 158, 160-161, the officers here had probable cause to believe the telephone’s recent call list would contain evidence relating to the crime for which he was arrested: Officer Fontanez had seen the defendant using the cellular telephone just before the observed drug transaction between the defendant and Claiborne took place; the police recognized Claiborne as a drug user and recovered cocaine from Claiborne; and Detective McCarthy testified that based on his experience, telephones are commonly used in the drug trade. Thus, the search of the call list in this case was a valid search incident to arrest.

We do not suggest that the assessment necessarily would be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device. Determination of the reasonableness of a search “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). As other courts have noted, see, e.g., United States v. Flores-Lopez, 670 F.3d 803, 805-806 (7th Cir. 2012); State v. Smith, 124 Ohio St. 3d 163, 167-169 (2009), today’s cellular telephones are essentially computers, capable of storing enormous quantities of information, personal, private, and otherwise, in many different forms. They present novel and important questions about the relationship between the modern doctrine of search incident to arrest and individual privacy rights. Although an individual’s reasonable expectation of privacy is diminished concerning his or her physical person when subject to a lawful arrest and taken into custody, the same may not necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that he or she is carrying at the time of arrest. See People v. Diaz, 51 Cal. 4th 84, 110 (Werdegar, J., dissenting), cert. denied, 132 S. Ct. 94 (2011). However, we do not need to consider these questions in the present case.

Accord: Commonwealth v. Berry, 463 Mass. 800, 979 N.E.2d 218 (2012).

Entry into defendant’s house under the emergency aid exception was objectively justified because of a murder of his father in the house next door and he couldn’t be found. State v. Markins, 2013 Ohio 602, 2013 Ohio App. LEXIS 530 (4th Dist. February 8, 2013):

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Storekeeper who observed defendant’s intoxicated conduct was a citizen informant when he called the police report her condition. State v. Schmidbauer, 2013 Ohio 530, 2013 Ohio App. LEXIS 465 (12th Dist. February 19, 2013).

Even assuming the challenged part of the search warrant affidavit was false, probable cause existed on the remainder, and the warrant would not be suppressed. State v. Johnson, 2013 Ohio 575; 2013 Ohio App. LEXIS 509 (8th Dist. February 21, 2013).

CI’s statement that defendant engaged in drug sales with him showed reliability for issuance of search warrant. State v. Tolbert, 2013 Ohio 577, 2013 Ohio App. LEXIS 508 (8th Dist. February 21, 2013).*

Defendant’s furtive movement like he was hiding something in his waistband was reasonable suspicion. State v. Travis, 2013 Ohio 581, 2013 Ohio App. LEXIS 512 (8th Dist. February 21, 2013).*

It does not violate the Fourth Amendment for the State of Ohio to keep the DNA of a person acquitted and then use it later. State v. Emerson, 2012 Ohio 5047, 134 Ohio St. 3d 191, 2012 Ohio LEXIS 2630 (Ohio November 1, 2012):

{¶ 1} There are two issues presented in this case. First, when a sample of a person’s DNA is lawfully obtained by the state during the course of a criminal investigation but the person is acquitted of that crime, does that person have standing to object under the Fourth Amendment to the U.S. Constitution to the retention by the state of the DNA profile obtained from that sample or its use in a subsequent criminal investigation? Second, is the state authorized to retain and subsequently use a DNA profile when the DNA sample was lawfully taken from a person during a criminal investigation, but the person was acquitted?

{¶ 2} For the reasons that follow, we conclude that a person does not have standing to object to the retention of his or her DNA profile or the profile’s use in a subsequent criminal investigation, and the state is authorized to retain the DNA profile and to use it in a subsequent investigation even though the profile was obtained from a sample taken during the investigation of a crime of which the person was acquitted. We accordingly affirm the judgment of the court of appeals.

. . .

{¶ 30} There is no support in the CODIS Methods Manual for appellant’s position. The manual has no provision for the removal of a DNA profile of an individual acquitted at trial. Section 17.6 sets forth the basis for expunging a DNA profile—a conviction being overturned on appeal or a sample taken in error—and the procedures that need to be followed. However, section 17.6 is not self-executing. There is no mechanism set forth in the manual by which the state is automatically notified that a person’s conviction has been overturned, requiring the profile of the acquitted person to be removed. Instead, the requirement of going forward is on the exonerated individual to notify CODIS that the conviction has been overturned and to seek expungement of the DNA profile. Appellant failed to do this.

{¶ 31} There is no legislative requirement that DNA profiles obtained from lawfully obtained DNA samples be removed from CODIS on the state’s initiative when the subject of the profile is acquitted at trial, and we will not create such a requirement. “Exclusion of extremely valuable evidence in crimes that often leave little other trace is a major social cost” and “the potential for abuse in the future is not sufficiently clear to warrant adopting a rule excluding evidence from the database on the ground that it was obtained or retained beyond the authorized classifications.” Smith, 744 N.E.2d at 442.

Defendant was riding a bicycle in circles in an intersection late at night in a high crime area. When they were near him, he said “They went that way.” They saw the handle of a gun and stopped him. They quickly found it was a toy gun, and they should have let him go, even if they suspected he was high. “Because Officers Smith and Fenwick’s articulated basis for reasonable suspicion was dispelled prior to the warrant check and no new facts were developed, the continued detention of Mr. Lovelady was unlawful. The handcuffs should have been removed from Mr. Lovelady, thereby releasing him to go home as he had requested.” State v. Lovelady, 2013 Mo. App. LEXIS 204 (February 19, 2013).*

Defendant was arrested on warrants at home, and she was taken to the door. When she wanted to get a jacket and turn off the stove, the officers followed her back in, and they saw things in plain view, and that caused enough concern for a protective sweep finding more in plain view that supported a search warrant. United States v. Moore, 2013 U.S. Dist. LEXIS 22830 (E.D. Mo. February 20, 2013).*

Defense counsel at trial was not ineffective for not challenging defendant’s parole search that would have lost anyway. Foster v. United States, 2013 U.S. Dist. LEXIS 23192 (N.D. Ohio February 20, 2013).*

Washington State SB 5737 (posted here) sponsor claims assault weapon inspection a “mistake” that shouldn’t have been in there. See Dems Sponsor Bill To Violate Fourth Amendment Rights Of Gun Owners.

Mistake as in: Some scribe was supposed to have deleted that before it got submitted? Or, a slip of the keyboard that included it in the first place?

Defendant had a reasonable expectation of privacy in zipped and closed duffle bags stored by permission at a friend’s house. This was reasonable under our societal understandings. See United States v. Waller, 426 F.3d 828 (6th Cir. 2005). The closed and locked nature of the containers showed his expectation of privacy, and that was enough for him to prove it, even without testifying. A search of the rifle case was valid without a warrant because it was a “single purpose container” that revealed its contents. United States v. Gardner, 2013 U.S. Dist. LEXIS 20527 (E.D. N.C. January 30, 2013):

“[A]lthough the plain view doctrine may support the warrantless seizure of a container believed to contain contraband, any subsequent search of its concealed contents must either be accompanied by a search warrant or justified by one of the exceptions to the warrant requirement. United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994). One such exception is the so-called single-purpose container exception. This doctrine instructs that search of a container seized pursuant to the plain view doctrine is permissible when “the contents of the seized container are a foregone conclusion.” Davis, 690 F.3d at 235. The Supreme Court has specifically held that a gun case is such a container. See Arkansas v. Sanders, 442 U.S. 753, 765 n.13 (1979) (specifically noting that the contents of a gun case “can be inferred from [it’s] outward appearance” obviating the need for a warrant to search it), overruled on other grounds, California v. Acevedo, 500 U.S. 565 (1991).

In this case, the rifle case was found in plain view. As it was a gun case, it falls within the single-purpose container exception. Since the contents of the case were a foregone conclusion, no warrant was needed to search this case found in plain view. Accordingly, the court denies the motion to suppress as to the rifle case.

There is no Fourth Amendment right to protection against searching information in NCIC. A warrant on defendant was basis for his stop. United States v. Cobb, 2012 U.S. Dist. LEXIS 186155 (E.D. Tenn. December 27, 2012):

Without providing any legal support for this argument, Defendant Campbell insists that a law enforcement officer must have reasonable suspicion to search the NCIC database for a person’s information. Many courts have held that computer database searches are not subject to Fourth Amendment analysis. In fact, “[t]he obvious purpose of maintaining law enforcement databases is to make information, such as the existence of outstanding warrant, readily available to officers carrying out legitimate law enforcement duties.” United States v. Ellison, 462 F.3d 557, 562 (6th Cir. 2006) (finding no expectation of privacy in an officer’s search of the Law Enforcement Information Network, which revealed an outstanding warrant); see also Eagle v. Morgan, 88 F.3d 620, 628 (8th Cir. 1996) (finding that a NCIC search did not violate the plaintiff’s federal constitutional rights); Cincerella v. Egg Harbor Township Police Dept., No. 06-1183 (RBK), 2009 WL 792489, at *3 (D. N.J. Mar. 23, 2009) (stating that “[b]ecause a person has no reasonable expectation of privacy in the information in the NCIC database, searching a person’s record through the NCIC database does not violate the federal or state constitution”); United States v. Schmid, No. 3:06-CR-97, 2007 WL 540788, at *5 (E.D. Tenn. Feb. 15, 2007) (finding probable cause after the officer entered the vehicle’s license plate number and received a NCIC reporting indicating that the vehicle was associated with the defendants, who had outstanding federal warrants). Therefore, the Court finds that Officer Mattina did not violate the Fourth Amendment when he conducted the computer searches.

FISA’s “significant purpose” requirement has been upheld by several circuits under the Fourth Amendment. The PATRIOT Act amendments have also been upheld. This court doesn’t disagree. United States v. Mohamud, 2012 U.S. Dist. LEXIS 186093 (D. Ore. May 7, 2012).*

A commercial building that was the subject of an arson was reasonably searched under Tyler and Clifford. The owner’s interest is less in a commercial property than in a home. No effort had been made to secure the property after the fire. United States v. Cromer, 2012 U.S. Dist. LEXIS 186153 (E.D. Mo. July 11, 2012).*

2255 petitioner “supplies a laundry list of criticisms relating to his counsel’s pretrial investigation and management of a motion to suppress” that was litigated and lost, and then petitioner pled guilty. That was a waiver. Petitioner claims defense counsel didn’t address the Fourth Amendment in the motion to suppress, but he clearly and effectively did. “Counsel was not ineffective merely because the Court ruled against him on the motion.” Leggette v. United States, 2013 U.S. Dist. LEXIS 21569 (S.D. W.Va. January 7, 2013).*

Am.Crim.L.Rev. Blog: So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees by Regan Gibson, ACLR Featured Blogger:

On February 26, 2013, the Supreme Court will hear argument in Maryland v. King, and will determine the constitutionality of a Maryland statute that authorizes the collection of DNA from individuals arrested for certain felonies. In brief, the case concerns Alonzo King, who was arrested in 2009 on first and second-degree assault charges, and was subjected to DNA collection under the 2008 amendments to the Maryland DNA Collection Act. The Act authorizes authorities to collect DNA samples from those arrested for a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary. Samples taken from arrestees are analyzed and profiles are uploaded in the FBI’s Combined DNA Index System (“CODIS”), where they can be compared against samples taken from crime scenes.[1] King’s profile was uploaded into the system and a few months later (but before his trial on the assault charges) was matched with an unknown sample collected after an unsolved sexual assault. The CODIS match was used as probable cause for a search warrant to collect a new sample from King and he was subsequently indicted and convicted for first-degree rape. King was sentenced to life in prison.

Hot pursuit into a home of somebody fleeing a mere traffic offense is permitted by City of Middletown v. Flinchum, 95 Ohio St.3d 43, 2002 Ohio 1625, 765 N.E.2d 330, but this court sure doesn’t like it. State v. Lam, 2013 Ohio 505, 2013 Ohio App. LEXIS 442 (2d Dist. February 15, 2013):

[*P20] The supreme court’s opinion in Flinchum contains a strongly-worded dissent in which Justice Pfeifer distinguishes Santana from Flinchum, based on the seriousness of the offense and the “realistic expectation” in Santana that delay in executing a search would result in the destruction of evidence (heroin and marked money), a concern which was not present in Flinchum. It also emphasizes that “the circumstances of a particular situation must be grave * * * to merit a lifting of [Fourth Amendment] protections.” Flinchum, 95 Ohio St.3d at 47 (Pfeifer, J., dissenting), citing Welsh, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (involving exigent circumstances). Justice Pfeifer observed that, when warrantless arrests in the home are at issue, hesitation in finding a basis for acting without a warrant “is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. * * * When the government’s interest is only to arrest for a minor offense, th[e] presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.” Id., citing Welsh at 750. The dissent concluded that the government had not successfully rebutted the presumption of unreasonableness in Flinchum, because only a minor traffic offense was at issue, and that the arrest of “a mere tire spinner” did not justify the chipping away of a well-established Fourth Amendment right.

[*P21] We share the concerns expressed in the Flinchum dissent. Although we are bound by supreme court precedent, we have reservations about permitting police officers to chase a suspect who is known to have committed only a minor traffic violation and to forcibly enter into his house, in the absence of exigent circumstances. This is a circumstance where a potential traffic violation developed into a chase of the driver, which led to the forcible entry of that person’s home, which turned into a protective sweep of the home, which resulted in the plain view of contraband, which generated a search warrant, which resulted in the arrest of a second person, which resulted in the discovery of drugs. This may be the unusual situation where legal reasoning has plunged off the slippery slope or where the exceptions have swallowed the rule.

[*P22] We see no reason why, in Jeffrey Lam’s case, the officers could not have waited outside the house while they obtained a search warrant or checked for outstanding warrants for Jeffrey. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the U.S. Supreme Court held that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspect’s house in order to make a routine felony arrest. As discussed above, Payton and other decisions have recognized an exception for “exigent circumstances.” Id. at 1386. Similarly, R.C. 2935.12 only permits entry by force to make a warrantless arrest if exigent circumstances exist. State v. Boyd, 2d Dist. Montgomery No. 13425, 1993 WL 169104 (May 21, 1993).

[*P23] However, the principle from which any exceptions to the warrant requirement emanate is reflected in the oft-quoted remarks of William Pitt in 1763: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it, the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!” Payton at 1388, fn. 54, citing Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Indeed, President John Adams traced the origins of our independence from England to James Otis’s 1791 argument against British writs of assistance, where he declared that a “man’s house is his castle.” United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 1072, 108 L.Ed.2d 222, fn. 8 (1990) (Brennan, J., dissenting). It may be that Jeffrey would have temporarily “defeated” his citation for the traffic offense by “escaping to a private place,” but weighing the immediate serving of a citation for a non-jailable minor misdemeanor against the Fourth Amendment’s protection of the home, we would make what should be the obvious choice.

[*P24] However, the facts surrounding the chase of Jeffrey Lam are not legally distinguishable from the facts in Flinchum. Thus, we are obligated to follow our understanding of the majority’s opinion in Flinchum, as the trial court did, and to conclude that the police officers lawfully entered into the house. We hope that the Ohio Supreme Court will reconsider or clarify its position.