Buccal swab for DNA requires a court order if defendant doesn’t consent. People v Smith, 95 A.D.3d 21, 940 N.Y.S.2d 373, 2012 NY Slip Op 1896 (4th Dept. 2012):

An order compelling an individual to provide corporeal evidence, such as blood or saliva for DNA analysis, constitutes a search and seizure within the meaning of the Fourth Amendment (see Skinner v Railway Labor Executives’ Assn., 489 U.S. 602, 618; Schmerber v California, 384 U.S. 757, 767; Matter of Abe A., 56 NY2d 288, 295). Although no New York statute expressly authorizes courts to compel uncharged suspects to supply a DNA sample (see Abe A., 56 NY2d at 293-294; cf. CPL 240.40 [2]), the Court of Appeals has held that a court may issue an order to obtain a blood sample from a suspect so long as the People establish: “(1) probable cause to believe the suspect has committed the crime, (2) a clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable. In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other. Only if this stringent standard is met … may the intrusion be sustained” (Abe A., 56 NY2d at 291). Here, the court determined that the People satisfied the requirements of Abe A. set forth above, and defendant does not expressly challenge that determination. Rather, defendant contends that (1) he was denied due process because the second order compelling defendant to provide a buccal swab was not made upon notice to him; and (2) the method of collecting the swab, i.e., the use of the taser, was excessive and objectively unreasonable. We agree with defendant on both counts, and thus that reversal is required.

The Secretary of Agriculture failed to show “special needs” for random drug testing of civilian employees of the Job Corps Civilian Conservation Centers of the U.S. Forest Service. The only evidence shows that there is no drug problem. Nat’l Fedn. of Fed. Employees-IAM v. Vilsack, 401 U.S. App. D.C. 152, 681 F.3d 483 (2012):

The National Federation of Federal Employees (“the Union”) challenges the constitutionality of a random drug testing policy applicable to all employees working at Job Corps Civilian Conservation Centers operated by the U.S. Forest Service. The district court granted summary judgment in favor of the Secretary of Agriculture and the Chief of the U.S. Forest Service (hereinafter “the Secretary”) and denied the Union’s request for a preliminary injunction. Upon de novo review, we conclude that the Secretary has failed to demonstrate “special needs” rendering the Fourth Amendment requirement of individualized suspicion impractical in the context of Job Corps employment. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665-66 (1989). Although identifying governmental interests in the students’ abstention from drug use and in their physical safety, the Secretary offered no foundation for concluding there is a serious drug problem among staff that threatens these interests and thus renders the requirement for individualized suspicion impractical. Rather, the Secretary’s evidence to date suggests the contrary. Because the Secretary has offered a solution in search of a problem, the designation of all Forest Service Job Corps Center employees for random drug testing does not fit within the “closely guarded category of constitutionally permissible suspicionless searches,” Chandler v. Miller, 520 U.S. 305, 309 (1997). Accordingly, we reverse and remand the case for proceedings consistent with this opinion.

Defendant was found to have voluntarily consented to a search of his business. Officers said that they did not have a search warrant, and he said “go ahead.” He refused consent to search his house, and that showed voluntariness. Uriel-Ramirez v. State, 385 S.W.3d 687 (Tex. App. – El Paso 2012).

Defendant was the subject of an encounter at the Baton Rogue Greyhound station over whether he was a U.S. citizen. The court finds the encounter was consensual because it was administrative and not criminal. It took a while, but it was determined that defendant’s British identity was likely false and, by his own admission, he’d overstayed the 90 day visa by several years. United States v. Doe, 2012 U.S. Dist. LEXIS 156186 (W.D. La. October 1, 2012).*

Defendant was found to have consented to a search of his two cell phones at the Niagara Falls border crossing after he had been handcuffed and detained at the border and MDMA had been found in the car. The court [wisely] declines to decide, at the urging of the government, that the cell phones could have been searched as a part of a border crossing. United States v. Ighodaro, 2012 U.S. Dist. LEXIS 156834 (W.D. N.Y. July 5, 2012).*

Defense counsel was not ineffective for the decision to allow defendant to cooperate by further interrogation and consenting to searches. When defendant turned himself in, counsel-less, he admitted the killing, said it was self-defense, and already admitted to hiding the body. Woods v. State, 291 Ga. 804, 733 S.E.2d 730 (2012).*

A storage unit operator called the police to complain that somebody was living in a storage unit contrary to the rental terms, thereby trespassing. That gave the officers reasonable suspicion when they found defendant living in one. His admission he had marijuana on him was only more. Clark v. State, 2012 Ind. App. LEXIS 547 (October 31, 2012).*

Officers on drug patrol were looking for people who had sold them drugs a few weeks prior. When they saw defendant, that was reasonable suspicion. State v. Gibson, 103 So. 3d 641 (La.App. 5 Cir. 2012).*

Crossing the centerline justified the stop. State v. Vinson, 400 S.C. 347, 734 S.E.2d 182 (App. 2012).*

Where the warrant failed to describe the place to be searched but the affidavit did and was attached, the papers as a whole properly described the place to be searched. State v. Cheeks, 400 S.C. 329, 733 S.E.2d 611 (2012).

The trial court held that the officer failed to show that a traffic violation occurred and suppressed the search based on that stop. The video of the stop did not contradict the trial court’s findings, so they are affirmed. State v. Houghton, 384 S.W.3d 441 (Tex. App. – Ft. Worth 2012).

Defendant argued that the inventory policy for no insurance was too discretionary with the officer. Here, however, the vehicle was parked so it impeded traffic, so the inventory was proper because the vehicle was towed for that without regard to possible pretext. State v. Penney, 252 Ore. App. 677, 288 P.3d 989 (2012).*

Officers lacked reasonable suspicion for a continued detention based on a belief that defendant was a different person who was wanted. The initial detention was reasonable, but, as soon as it was determined that defendant didn’t even look like the person wanted and another officer said he wasn’t the guy, the detention should have stopped. Instead, one of the officers insisted on him. “Agent Stanko, nevertheless, continued to detain De La Cruz and obtained his identification ‘just to be safe … because I still wasn’t a hundred percent sure.’ … The existence of reasonable suspicion, however, is measured from the perspective of an objectively reasonable officer, not from the subjective perspective of the particular officer on scene. See al-Kidd, 131 S. Ct. at 2082;…” Then, the flight of one of a group was not reasonable suspicion as to the others. United States v. De La Cruz, 2013 U.S. App. LEXIS 561 (10th Cir. January 9, 2013).

Defendant was found in a house after police were permitted entry by the person in control. The contents of a cell phone found on him was admitted into evidence. The entry and arrest were valid. The court does not decide[, but should have because the validity of the search of the cell phone is not discussed] the question of standing because the defendant disavowed the cell phone as his when he was arrested [n2]. United States v. Lindsey, 702 F.3d 1092 (8th Cir. 2013)* [Note: All in all, a really unsatisfactory opinion: too big an unanswered question. And I have an oral argument with one of the members of this panel on Jan. 18.]

Aside from other crimes, a NOPD officer’s burning a dead man’s car to cover up murder during the aftermath of Katrina was a civil rights violation, too. United States v. McRae, 702 F.3d 806 (5th Cir. 2012):

This case tells one of the nightmarish stories that arose from Hurricane Katrina in 2005—the physical devastation, human diaspora, and struggle of the City to maintain some semblance of law and order, and, in the chaos, a horrific failure of law enforcement. The case also demonstrates again the axiom that a cover-up, with its domino effect, begets more tragedy than the crime. It indeed presents a grim vignette within the larger Katrina story, told here in terms of legal consequences.

The three appellant former policemen were convicted in the same trial—conducted from November 8 to December 9, 2010—largely on separate facts but all arising from the death of one citizen, Henry Glover. Thus, this opinion will set out the facts and the issues raised on appeal in three separate parts.

. . .

Importantly, the second superseding indictment charged McRae with seizing Tanner’s car by burning it. McRae contends that he cannot have seized the car by burning it because the car had already been seized at that point: the car had been moved twice on the school property, and driven away from the school before it was burned. He argues that Tanner’s possessory interest in the car had therefore already suffered meaningful interference. The government responds that the burning was merely the culmination of a course of conduct, all of which constitutes an unreasonable seizure. [This is reviewed for plain error.]

Although McRae’s position is eminently logical, we do not think that the district court, in entering judgment based on this conviction, committed any error that is beyond reasonable dispute. Assuming that it is error to regard the burning of the car as a seizure, the error is not plain because the law neither clearly nor obviously limits the meaning of seizure to the initial moment of dispossession.

McRae correctly observes that some circuits, with respect to the seizure of property, limit the meaning of seizure to initial dispossession. See Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003); Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999); United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992). But at least one other circuit defines the seizure of property more broadly, to include a course of conduct that interferes with possessory interests. See Presley v. City of Charlottesville, 464 F.3d 480, 487-89 (4th Cir. 2006). McRae does not point to any precedent in this circuit staking a position in this split, and we are not aware of any. “Because this circuit’s law remains unsettled and the other federal circuits have reached divergent conclusions on this issue . . . [McRae] cannot satisfy the second prong of the plain error test—that the error be clear under existing law.” United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007).

With respect to seizures of the person, rather than property, the law is equally unclear, and the lack of clarity further undermines a contention of plain error in this case. We know that seizures of the person do not end at the initial moment of seizure. See Graham v. Connor, 490 U.S. 386, 394-96, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). How long the seizure of the person goes on, however, is not defined with precision in our circuit, and it is a question that divides other circuits. See Brothers v. Klevenhagen, 28 F.3d 452, 455-57 (5th Cir. 1994); Valencia v. Wiggins, 981 F.2d 1440, 1443-44 (5th Cir. 1993). The imprecision in describing the temporal quality of seizure in the context of seizures of the person discredits any argument that it is clear or obvious that a seizure is over at the moment of initial dispossession in this context—that is, seizure of property.

[Because of plain error review:] We hold that it is neither clear nor obvious that McRae’s burning of Tanner’s car could not constitute an unreasonable seizure under the Fourth Amendment, and we therefore affirm his conviction under count four of the second superseding indictment.

2255 IAC claim involving a search requires an allegation that the search was invalid for some reason. This one didn’t, so counsel’s failure to file a motion essentially means there was no ground to. United States v. Smith, 2012 U.S. Dist. LEXIS 103848 (E.D. Va. July 24, 2012), R&R 2012 U.S. Dist. LEXIS 97851 (E.D. Va. July 11, 2012).

Defense counsel was not ineffective for not challenging search that was clearly a losing issue. United States v. Luke, 686 F.3d 600 (8th Cir. 2012).*

Defendant’s guilty plea waived the issue of the legality of his arrest in the Phillippines. United States v. Feldman, 879 F. Supp. 2d 231 (N.D. N.Y. 2012).*

Search incident of a cell phone requires a narrow view. The search here was six hours after the arrest, so it was not “incident.” United States v. Dimarco, 2013 U.S. Dist. LEXIS 16279 (S.D. N.Y. February 5, 2013) (good analysis of the history of search incident as it would apply):

First, the timing of Agent Morales’s search of DiMarco’s cell phone makes it unreasonable to conclude that the search was performed incident to or contemporaneous with his arrest. Even the Government admits that more than six hours passed between DiMarco’s arrest and the search of his cell phone. (See generally Gov’t Post Hr’g Opp’n Mem. at 15 (chart establishing timing and events on February 2, 2012); see also Tr. at 69-70, 91-94; Gov’t Exs. 3, 8.) By comparison, almost all of the courts of authority that have upheld the search of a cell phone under the search incident to arrest exception, contemplated searches that occurred as, or soon after, a suspect was arrested. See, e.g., Murphy, 552 F.3d at 411-12 (initial search of cell phone occurred when arrestee handed phone to arresting officer); Curry, 2008 U.S. Dist. LEXIS 5438, 2008 WL 219966, at *10 (search occurred “within less than a half hour of defendant’s arrest”); Santillan, 571 F. Supp. 2d at 1102 (search occurred “mere minutes after the arrest and seizure” of phone).

Even in Finley, the case upon which the Government relies, the cell phone search was contemporaneous to Finley’s arrest because the DEA Agent searched the phone during the course of investigative activities in the field and well before the police took him to the police station to begin processing the arrest and inventorying the items seized. See 477 F.3d at 254-55, 260. In addition, multiple courts have determined that cell phone searches occurring within much fewer than six hours were not sufficiently contemporaneous to be considered an incident of an arrest. …

. . .

Although the Government asserts that it is relying on the search incident to arrest exception as discussed in Edwards, and not the inventorying procedure exception, for the proposition that a search may be incident to a lawful custodial arrest so long as the administrative procedures inherent to the arrest are ongoing, (Gov’t Post Hr’g Opp’n Mem. at 14), this is too simplistic a reading of Edwards. …

Second, the delayed search of DiMarco’s cell phone was unreasonable because the reasons that Agent Morales stated for conducting the search are not relevant to the justifications underlying the search incident to arrest exception. DiMarco’s cell phone presented no threat to the officers. Cf. Chimel, 395 U.S. 752 at 773, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (justifying warrantless search incident to arrest because “[t]here is always a danger that the suspect will try to escape, seizing concealed weapons with which to overpower and injure the arresting officers”). Nor has the Government, which has the burden of proof to show reasonableness, shown that DiMarco would have been able to destroy the evidence on his cell phone once the phone was placed under the exclusive authority of the NYPD. See id. (justifying warrantless search incident to arrest because “there is [also] a danger that [a suspect] may destroy evidence vital to the prosecution”).

An illegal power connection outside the house led to a search warrant for the house for proof of electricity theft. The defendant’s excuse for his conduct that arguably made it legal, at least in his mind, did not undermine the initial probable cause. Contraband was found. United States v. Lewis, 2013 U.S. Dist. LEXIS 15277 (E.D. Mich. February 5, 2013).

Officers had reasonable suspicion defendant was under the influence for an FST. He left a bar at 2:15 am and drove erratically. When stopped, he fumbled with his wallet looking for his DL, he smelled of alcohol, and admitted having consumed alcohol. State v. Dillehay, 2013 Ohio 327, 2013 Ohio App. LEXIS 295 (3d Dist. February 4, 2013).*

Defendant did not show “standing” to challenge the search of the house he was visiting when the raid occurred. He presented no witnesses and asked no questions of government witnesses that even suggested standing. United States v. Rose, 2013 U.S. Dist. LEXIS 16366 (W.D. Pa. February 7, 2013).*

Defendant’s roadside “strip search” was reasonable in its justification and how it was conducted. There was a lump in his groin area found during a patdown that was apparently the source of marijuana odor coming from his person. State v. Johnson, 2013 N.C. App. LEXIS 136 (February 5, 2013):

Having concluded that there was a specific basis for believing that contraband was present in defendant’s undergarments, the next question is whether the searching officers took reasonable steps to protect defendant’s privacy. See Robinson, __ N.C. App. at __, 727 S.E.2d at 723. Here, the troopers placed defendant on the side of Trooper Hicks’s vehicle so that the vehicle blocked them from the travel lanes of the highway and formed a wall around defendant as he was being searched so that he could not be seen by passers-by. The troopers never actually removed or pulled down his pants and never examined any of his “private parts”. Defendant was wearing two layers of clothing underneath his pants. The first layer was a pair of boxer-briefs of the type found in the passenger compartment of his car. Underneath the boxer-briefs, defendant was wearing athletic-style compression shorts with a compartment for a protective cup. The only private areas subjected to search by the troopers remained covered by defendant’s compression shorts and they did not remove his pants or outer underwear to retrieve the package from his pants.

We hold that these facts, as found by the trial court, support the trial court’s conclusion that “[t]he troopers took necessary and reasonable precautions to guard against any public exposure of defendant’s private areas during the search of his person, and the search of his private areas was not constitutionally intolerable in its intensity or scope.” Therefore, we affirm the trial court’s order denying defendant’s motion to suppress the evidence seized from his person.

ScienceFriday.com: Tracking Privacy and Ownership in an Online (Audio):

Your phone knows where you are. Social networks know who your friends are, and what you ate last night. How much of your personal data is really yours to control? Khaliah Barnes of the Electronic Privacy Information Center helps sort out the politics and policies of privacy.

NYTimes.com: Debating a Court to Vet Drone Strikes by Scott Shane:

WASHINGTON — Since 1978, a secret court in Washington has approved national security eavesdropping on American soil — operations that for decades had been conducted based on presidential authority alone.

Now, in response to broad dissatisfaction with the hidden bureaucracy directing lethal drone strikes, there is an interest in applying the model of the Foreign Intelligence Surveillance Act court — created by Congress so that surveillance had to be justified to a federal judge — to the targeted killing of suspected terrorists, or at least of American suspects.

WaPo: Lawmakers propose giving federal judges role in drone strikes, but hurdles await.

NYTimes.com: Number of Frisks Fell in ’12, Police Data Show by Wendy Ruderman:

The number of times New York City police officers stopped, questioned and frisked people in 2012 dropped by 22 percent from the previous year, according to statistics the Police Department released on Friday.

The decrease — 533,042 in 2012, compared with about 685,000 in 2011 — came amid mounting criticism from civil-rights advocates who have argued that the practice of stop and frisk unfairly targeted minorities — the vast majority of whom were released without any charges.

Wired.com: DHS Watchdog OKs ‘Suspicionless’ Seizure of Electronic Devices Along Border by David Kravets:

The Department of Homeland Security’s civil rights watchdog has concluded that travelers along the nation’s borders may have their electronics seized and the contents of those devices examined for any reason whatsoever — all in the name of national security.

The DHS, which secures the nation’s border, in 2009 announced that it would conduct a “Civil Liberties Impact Assessment” of its suspicionless search-and-seizure policy pertaining to electronic devices “within 120 days.” More than three years later, the DHS office of Civil Rights and Civil Liberties published a two-page executive summary of its findings.

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” the executive summary said.

License-plate reader (LPR) system alert of a wanted person in a police car is probable cause for a stop. Defendant wasn’t the wanted person, but he was without a DL, and his arrest for that was valid. Hernandez-Lopez v. State, 2013 Ga. App. LEXIS 41 (February 5, 2013):

The information retrieved via the LPR system is not unlike that an officer retrieves by way of running vehicle-tag numbers through GCIC, which we have previously held provides justification for an initial stop. Moreover, in an unpublished opinion, the Eleventh Circuit recently addressed use of the LPR system in the context of a case invoking the right to be free from an unreasonable search, noting that the Supreme Court of the United States has “concluded in similar contexts that visual surveillance of vehicles in plain view does not constitute an unreasonable search for Fourth Amendment purposes,” and that “[t]his is true even if the surveillance is aided by the use of technology to augment the officers’ sensory faculties.” Similarly, the LPR system at issue in the case sub judice merely aided the officer by augmenting his sensory faculties, providing an enhanced ability to process tag information through a law-enforcement database rather than requiring the officer to manually conduct random checks. And the information retrieved by the system’s recognition of the license-plate numbers—i.e., identifying information of a wanted person, the offense allegedly committed by the wanted person, and a photograph of the relevant license plate and vehicle—gave the officer reasonable, articulable suspicion to justify a traffic stop of the vehicle driven by Hernandez-Lopez. Thereafter, the officer had probable cause to arrest Hernandez-Lopez for driving without a license.

See United States v. Wilcox, 415 Fed. Appx. 990 (11th Cir. 2011).

Defendant was stopped for a seatbelt violation, but the officer found that the seatbelt was tucked under the arm and was legal. The stop being initially lawful, the officer was not obligated to end the stop and let the defendant go immediately. Davis v. State, 318 Ga. App. 166, 733 S.E.2d 453 (2012):

Similarly, Davis’s argument that the traffic stop was impermissibly prolonged when the officer failed to walk away immediately after noticing that the shoulder strap safety belt was tucked under Davis’s arm is without merit. This is so because once a legal stop is made, an officer “may request and examine a driver’s license and vehicle registration and run a computer check on the documents.” Such a routine inquiry does not impermissibly prolong the traffic stop. Officer Starling’s testimony is clear that he noticed Davis attempting to hide the marijuana at essentially the same time he noticed that Davis had the shoulder strap safety belt under his arm and as Davis was complying with the officer’s request for driver’s license and proof of insurance. Thus, we find that the initial stop, as well as the brief detention, was authorized.

Officer’s testimony he saw the defendant pull a bag of cocaine out of his pocket was sufficient to support the arrest. Horne v. State, 318 Ga. App. 484, 733 S.E.2d 487 (2012).*

A parolee’s signing of a consent to search as a condition of parole is not unreasonable or unconstitutional, just because the inmate must choose between getting out early or staying in jail to be free from parole searches. United States v. Lamell, 2012 U.S. Dist. LEXIS 153424 (D. Vt. October 25, 2012).*

The court discusses nexus between the items should and the defendants’ home for a search warrant, but never decides the merits. Instead, even if the search were invalid, it was harmless beyond a reasonable doubt and, alternatively, the officers acted in good faith. The prelude to all this was “We may affirm the denial of a motion to suppress on any ground supported by the record. United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).” Also noted in dicta: If the product of the search doesn’t affect the Guidelines or sentence, no harm. United States v. Schulz, 486 Fed. Appx. 838 (11th Cir. 2012).* [So much for the continued development of the body of law of the Fourth Amendment.]

The first search warrant for defendant’s property looked for clothing to attempt to link defendant to a robbery. Instead, probable evidence of another crime was seen, so the officers applied for a second search warrant for that, and it was valid based on the first observation. Good faith would apply anyway. United States v. Morris, 2012 U.S. Dist. LEXIS 113631 (S.D. W.Va. August 13, 2012).* [Note: Indeed, the officers did exactly what was expected of them. I wouldn’t have bothered to file a motion to suppress.]

In executing a search warrant for drugs, officers found currency, and they could seize it. State v. Robinson, 2012 Mo. App. LEXIS 1177 (September 20, 2012).

Defendant’s car parked on a commercial parking lot was still “readily moveable” for purposes of the automobile exception. State v. Lundquist, 48 Kan. App. 2d 180, 286 P.3d 232 (2012).*

Statute requires a turn signal before turning, so the stop was valid. Commonwealth v. Fowler, 2012 Ky. App. LEXIS 187 (September 21, 2012).*

Ordering the defendant out of the car after the stop was effectively completed was unreasonable. There is no carte blanche to order a driver out of the car at any time without reason. Here, the officer did not consider the driver a safety threat. State v. Donaldson, 2011 Tenn. Crim. App. LEXIS 717 (September 15, 2011).*

The search warrant was for a tan building at 506 Christie Street. When the police arrived, they searched a blue building at that address. It turned out that the blue building was on the street and the tan building was behind it with the same address. The warrant failed the particularity requirement. State v. Spivey, 2011 Tenn. Crim. App. LEXIS 720 (September 19, 2011)*:

Based on the above authority and analysis, we agree with the trial court, and conclude that the search warrant was unconstitutional because it failed to adequately specify the property to be searched. The search warrant described the residence as a single story, single family dwelling with tan siding located at 506 Christie Street on the northeast corner of Christie Street and Brigance Avenue. It failed, however, to distinguish the subject building from a second building on the property, the only one that was actually tan. This is fatal to the search warrant because it authorized law enforcement to search the tan building, which was occupied by a resident unrelated to the investigation.

The exclusionary rule does not apply to probation revocation searches unless they were conducted in bad faith. Jones v. State, 2011 Ark. App. 543 (September 21, 2011).*

The exclusionary rule does not apply to probation searches, and this one was valid. Miller v. State, 2011 Ark. App. 554, 386 S.W.3d 65 (2011).*

Defendant with 25 bags of crack on him cursed a police officer for about 15 seconds for “harassing” him, and that led to an arrest for disorderly conduct and discovery of the drugs. Defendant was not legally disorderly justifying the arrest. People v Baker, 2013 NY Slip Op 00782 (N.Y. February 7, 2013):

Finally, this case includes one more factor worthy of consideration. Here, both at its inception and conclusion, the verbal exchange was between a single civilian and a police officer. The fact that defendant’s abusive statements were directed exclusively at a police officer — a party trained to diffuse situations involving angry or emotionally distraught persons — further undermines any inference that there was a threat of public harm, particularly since the police officer was in a position of safety and could have closed his windows and ignored defendant. We do not suggest that the public harm element can never be present in such encounters; Tichenor demonstrates that this is not the case. But isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the “public harm” mens rea necessary to support a disorderly conduct charge.

After consideration of all relevant factors, we conclude that defendant’s arrest for disorderly conduct was not supported by probable cause due to insufficient proof on the public harm element. Because the arrest was unlawful under our long-standing precedent, we have no occasion to address defendant’s First Amendment arguments.