Two probation officers were patrolling in a high crime area, and they saw defendant probationer. They stopped the car and spoke to him, identifying themselves. He backed away, and they told him not to run. He started to and they Tasered him. That was an investigative detention without reasonable suspicion. Commonwealth v. Chambers, 2012 PA Super 202, 55 A.3d 1208 (2012).*

Defendant’s 2255 claim that defense counsel was ineffective for not filing a motion to suppress was denied because he did and it was heard. Owens v. United States, 2012 U.S. Dist. LEXIS 136351 (C.D. Ill. September 24, 2012).*

Officers complied with the knock and announce requirement of 18 U.S.C. § 3109 by knocking and getting no answer and weapons were reasonably believed to be inside. Some officers went in through a bedroom window. United States v. Cintora-Gonzalez, 2012 U.S. Dist. LEXIS 136323 (N.D. Ga. August 10, 2012).*

Police officers acted reasonably in entering defendant’s apartment after repeated rebuffed requests to turn down the music which was bothering the neighbors. Even though nighttime entries require higher justification, defendant’s own actions “‘undermined’ his right to privacy.” The police entered, and he allegedly resisted. Olson v. State, 208 Md. App. 309, 56 A.3d 576 (2012):

Although his Fourth Amendment rights would ordinarily be at their zenith when he is home at night, appellant “undermined” his right to privacy “by projecting loud noises into the neighborhood in the wee hours of the morning, thereby significantly disrupting his neighbors’ peace.” United States v. Rohrig, 98 F.3d 1506, 1521 (6th Cir. 1996). See also State v. Kaltner, 420 N.J. Super. 524, 534 (2011) (“under certain circumstances, a defendant who knowingly exposes one’s home to the public has a ‘lessened expectation of privacy'”) (quoting State v. Henry, 133 N.J. 104, 117 (1993)); Commonwealth v. Orlando, 371 Mass. 732, 735 (1977) (“[A]busive language [which] in some circumstances may constitute protected speech … may be constitutionally proscribed when loudly uttered late at night in a residential neighborhood so that people in the privacy of their homes are unable to avoid the noise.”). Through his own actions, appellant made it impossible to protect his privacy interests “without diminishing his neighbors’ interests in maintaining the privacy of their homes.” Rohrig, 98 F.3d at 1522. Here, “preserving a peaceful community is all the more compelling when balanced against [appellant’s] substantially weakened interest in maintaining the privacy of his home.” Id.

To be sure, it would have been appropriate, and perhaps feasible, for the police to have obtained a warrant soon after they first arrived on the scene in light of appellant’s behavioral history and his expressed intent to continue projecting his music through the night. But appellant should not be rewarded — and the neighborhood penalized — for the extended period of police patience and restraint.

On summary judgment, entry into plaintiff’s hotel room was without exigent circumstances or a warrant, and a jury might find the officers liable. On this claim, the law is well settled. “Making all inferences in plaintiffs’ favor, a reasonable fact-finder could conclude that a competent officer under the circumstances of this case would have understood both that exigent circumstances did not exist before the officers entered the room and that entering the room in the absence of such circumstances violated plaintiffs’ [clearly established] constitutional rights.” Inman v. Siciliano, 2012 U.S. Dist. LEXIS 75285 (D. Mass. May 31, 2012).*

DUI traffic stop led to plain view of a switchblade in passenger’s lap which caused his arrest. Following that, a plain view of a gun led to a search for which he had no standing. United States v. Seigler, 484 Fed. Appx. 650 (3d Cir. 2012).*

In this murder case the defendant did not specify what was to be suppressed, but “[w]aiver notwithstanding, the only testimony is that the Defendant consented to the search of his vehicle.” That’s first a question of fact resolved against him. State v. Sexton, 368 S.W.3d 371 (Tenn. 2012).*

The Kentucky AG was involved in the child pornography investigation, and state law required certain prerequisites the defendant argued weren’t met. They were irrelevant under Fourth Amendment reasonableness. United States v. Rogers, 2012 U.S. Dist. LEXIS 85947 (E.D. Ky. June 21, 2012),* reconsideration denied 2012 U.S. Dist. LEXIS 98166 (E.D. Ky. July 16, 2012).*

The officer formed reasonable suspicion defendant was driving under the influence, and he asked for consent to search the trunk, which was voluntary. Discovery of drugs there justified a search of the engine compartment, too, under the automobile exception. United States v. Cathey, 485 Fed. Appx. 119 (6th Cir. 2012).*

The officer pulled over to talk to defendant in a parked car about a recent robbery in the area. Defendant was not stopped. Defendant consented to the encounter and a patdown, and a marijuana baggy was found by plain feel. Kirkland v. State, 316 Ga. App. 310, 728 S.E.2d 907 (2012).*

Heck barred the claim of one plaintiff who had habeas relief available to him but not the claims of two others who did not have habeas available after their convictions. Bishop v. County of Macon, 484 Fed. Appx. 753 (4th Cir. June 22, 2012).

For a 2255 Franks challenge, a detailed affidavit of falsity of the affidavit is required for the petition, and petitioner failed to provide it. Dismuke v. United States, 2012 U.S. Dist. LEXIS 88077 (E.D. Wis. June 26, 2012).*

Consent here was limited to looking for pistols in the house and didn’t include the cars outside. However, the plain view through the windows gave probable cause. United States v. Kelly, 2012 U.S. Dist. LEXIS 87653 (W.D. La. May 25, 2012), adopted 2012 U.S. Dist. LEXIS 87670 (W.D. La. June 22, 2012).*

Defendant passenger’s unrebutted testimony he was a bailee of a car gave him standing. However, the driver also had a possessory interest and he had apparent authority to consent. United States v. Valencia, 2012 U.S. Dist. LEXIS 105554 (D. Neb. June 29, 2012).

Probable cause here is viewed through the lens of the good faith exception rather than free standing, and it is not so deficient that the warrant should not be sustained. Defendant fails in his burden of proof in showing that the good faith exception does not apply. United States v. Hurst, 2012 U.S. Dist. LEXIS 105168 (N.D. W.Va. June 22, 2012).*

Defendant argues that the district court’s ruling was too inspecific. It was valid either as a search or inventory. United States v. Kalu, 485 Fed. Appx. 366 (11th Cir. July 30, 2012).*

Defendant could only have understood that the officer wanted to search him for both drugs and weapons, and he consented. People v. Tully, 54 Cal. 4th 952, 282 P.3d 173, 145 Cal. Rptr. 3d 146 (2012).*

Volokh: Does Kyllo v. United States Apply to A Scan of A Person? And What is the Standard for A “Terry Scan”? by Orin Kerr:

New technologies often prompt new and interesting Fourth Amendment issues. Here’s the latest:

Get ready for scan-and-frisk.

The NYPD will soon deploy new technology allowing police to detect guns carried by criminals without using the typical pat-down procedure, Police Commissioner Raymond Kelly said Wednesday.

The department just received a machine that reads terahertz — the natural energy emitted by people and inanimate objects — and allows police to view concealed weapons from a distance.

“If something is obstructing the flow of that radiation, for example a weapon, the device will highlight that object,” Kelly said.

A video image aired at a Police Foundation breakfast Wednesday showed an officer, clad in a New York Jets jersey and jeans, with the shape of a hidden gun clearly visible under his clothing when viewed through the device.

The department will begin testing the high-tech device for use on the street. The device is small enough to be placed in a police vehicle or stationed at a street corner where gunplay has occurred in the past.

. . . [Kelly said:] “We still have a number of trials to run before we can determine how best to deploy this technology. We’re also talking to our legal staff about this. But we’re very pleased with the progress we’ve made over the past year.”

Use of this technology raises two primary Fourth Amendment questions. First, does it constitute a search under Kyllo v. United States? More specifically, does Kyllo apply when the device is used to obtain details from inside a person’s clothes rather than inside a home? And second, if use of the device is a “search” under Kyllo, what is the standard for when such a search is reasonable? Do you match the Fourth Amendment standard for a “virtual frisk” with the existing standard for a physical frisk? Or is the virtual frisk more or less invasive than the physical frisk in a way that would require more or less cause? Interesting questions.

See New York Daily News: NYPD Commissioner says department will begin testing a new high-tech device that scans for concealed weapons.

DOJ White Paper: Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Leader of Al-Qa’ida or An Associated Force on NBC News website.

The White Paper concludes on page 9 that such a use of deadly force is reasonable under the Fourth Amendment.

A polygraph test is not a search. United States v. Alvarez, 2013 U.S. Dist. LEXIS 14813 (D. Mont. February 4, 2013).*

A UPS supervisor was suspicious of several packages going to defendant’s address, so he opened it finding drugs. The first search was a private search, and the anticipatory warrant was valid. United States v. Adams, 2013 U.S. Dist. LEXIS 14853 (D. Mont. January 14, 2013).*

A court order was obtained to track defendants’ phones, and their argument is foreclosed by a later decision of the Sixth Circuit in United States v. Skinner, 690 F.3d 772 (6th Cir. 2012) (they’re just preserving it if Skinner is reversed, anyway). United States v. Money, 2013 U.S. Dist. LEXIS 14172 (E.D. Ky. February 1, 2013),* R&R United States v. Money, 2013 U.S. Dist. LEXIS 14811 (E.D. Ky. January 14, 2013).*

NYTimes: Texas Lawmakers Aim to Limit Drones and Safeguard Privacy by Emily Ramshaw:

A drone, no bigger than a toy airplane, hovered north of the Texas Capitol, floating over the heads of lawmakers who were momentarily distracted from their morning meetings. Several of them gathered beneath it, faces tilted skyward, marveling over a pair of goggles that allowed them to watch live video of the craft’s panoramic bird’s-eye view.

But when the conversation turned to the reason for the demonstration, the tone shifted. Representative Lance Gooden, Republican of Terrell, said he was sponsoring legislation to prevent this futuristic technology — increasingly used by everyone from aviation hobbyists to law enforcement authorities — from capturing “indiscriminate surveillance.”

NYTimes Opinion: Why Police Lie Under Oath by Michele Alexander:

THOUSANDS of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

But are police officers necessarily more trustworthy than alleged criminals? I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie. In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. …

Defendant was transported from the scene of his stop 15 miles to the police station, and the state actually argued that he was not under arrest, probably because there was no probable cause. His detention was unreasonable under the Fourth Amendment. State v. Massenburg, 2013 Ohio 324, 2013 Ohio App. LEXIS 250 (6th Dist. February 1, 2013):

[*P19] The same conclusion must be reached in this case. Here, appellant was placed in the back of Myerholtz’s cruiser, and then transferred to the back of Santibanez’s cruiser. Neither deputy told him that he was free to leave. During that time, a search of the vehicle was conducted, but no drugs were found. At that point, probable cause did not exist to arrest appellant. Nevertheless, he was detained in the back of Santibanez’s cruiser for an indeterminate amount of time between when the roadside search was concluded and when the tow truck arrived. Appellant was then transported approximately 15 miles to the sheriff’s station, where he was placed in an interrogation room in the interior of the police station. Although the state maintains he was not arrested, appellant remained in the interrogation room, with a jail staff member standing outside in the hallway, for approximately another 15 to 20 minutes before Myerholtz and Santibanez entered following the inventory search.

[*P20] Like the court in Royer, we conclude that the officers’ conduct in this case was more intrusive than reasonably necessary to effectuate an investigative detention as contemplated by Terry; rather, it constituted a de facto arrest. … Our conclusion is further bolstered by the United States Supreme Court’s comments, following Royer, that,

There is no doubt that at some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect’s freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments. *** And our view continues to be that the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes. We adhere to the view that such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause. Hayes v. Florida, 470 U.S. 811, 815-816, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985).

In executing a search warrant on a house, the officer encountered four females with their purses. Since they were not the targets of the search, the officer was obliged to inquire into who owned which rather than just search them. State v. Jackson, 46 Kan. App. 2d 199 (2011):

In applying the notice test under the facts of this appeal, we reject the notion that Officer Phillips did not have notice that the purses belonged to the guests and not Davenport. Phillips admitted that he knew the purses could have belonged to the female guests; thus, he had constructive notice of “containers” not subject to the reach of the search warrant. His expressed reasoning for the search was that one or all of the purses could have belonged to the target of the warrant, Davenport, and that in order to determine ownership, he was forced to open the purses.

But Officer Phillips made no inquiry about the purses’ ownership. He did not ask any of the women present in the house if they had brought a purse or which one it was. Phillips could have simply gone into the living room and asked three questions of each guest: Did you bring a purse with you today? Is that the only purse you brought? Can you describe your purse? The true owner of the purse is most likely to have enough knowledge of the purse to describe it, while the others will probably not recall enough about the purse to describe it. Further, if Jackson had been questioned and had denied the purple purse with an orange handle was hers, she would no longer have had a subjective expectation of privacy in the purse. Moreover, if there was doubt of ownership after questioning Jackson, the officers could have applied for a supplemental search warrant or requested that a drug dog be brought to the premises. In short, the notion that the police would have been stymied and without appropriate avenues of investigation is not accurate.

. . .

In the final analysis, we are required to balance the privacy rights of an individual under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights against the legitimate need of law enforcement to conduct a proper search under the mandate of a search warrant. We hold the State did not meet its burden to demonstrate the search of Jackson’s purse was lawful and, to paraphrase Tonroy, the State offered nothing to rebut the reasonable assumption that three or four purses lying on a kitchen floor during a social gathering attended by three or four women were owned by the guests rather than by the female occupant of the residence. See 32 Kan. App. 2d at 925.

See DARPA’s 1.8 gigapixel drone camera is a high-res Fourth Amendment lawsuit waiting to happen by Joshua Kopstein. A lawsuit may happen, but will it win?

Can an analogy be drawn between Kyllo’s thermal imaging technology and a 1.8 gigapixel camera? (1,800 megapixel; an iPhone 5 has an 8 megapixel camera.) Tough question. A camera like that only shows the curtilage, and that’s visible from any low-flying airplane. Kyllo showed something inside the house.

In the three fly-over cases in SCOTUS, Ciraolo and Riley involved “naked eye” observations at 1,000′ from an airplane and 400′ from a helicopter. Neither bothered the Court. Dow Chemical, on the other hand, involved “a standard floor-mounted, precision aerial mapping camera, to take photographs of the facility from altitudes of 12,000, 3,000, and 1,200 feet.”

Has technology overridden the reasonable expectation of privacy with a 1.8 gp camera, or does it fall within Dow Chemical‘s “precision aerial mapping camera” yet even beyond exotic thermal imaging of the home? But, remember, it’s the curtilage being shown, not the interior of the house. How long has satellite imaging been around? How long has Google Maps shown our backyard to the world? See Kyllo, at 33-34:

The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found “it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened,” 476 U. S., at 237, n. 4 (emphasis in original).

It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See Ciraolo, supra, at 215. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.

Kyllo was 12 years ago. Since activities inside of a house aren’t shown, I don’t think it’s unconstitutional under the three cases already decided.

Defendant and three others were stopped for speeding in a residential area known for its recent burglaries. In the back seat was a big screen TV. “The Court finds that Deputy Braden’s initial questions about the television did not extend the duration of the traffic stop.” The drug dog was used on the car in three minutes. United States v. Robinson, 2012 U.S. Dist. LEXIS 185389 (E.D. Tenn. December 26, 2012).*

Defendant was pacing back and forth around the dumpster behind a closed business in a high crime area. The officer approached, and asked him what he was doing, asking whether he was armed. He said he was and he pulled out the gun. With it came a baggie of drugs. The finding of the drugs was not unlawful because defendant’s producing the gun was by consent and reasonable suspicion wasn’t required. Carter v. State, 2013 Ga. App. LEXIS 30 (January 31, 2013).*

Slate.com: New Report Warns That Drones Could Be Used for Stalking, Voyeurism by Ryan Gallagher:

The sight of a drone in flight is likely to become a regular occurrence in the United States within the next few years. But the rise of unmanned technology could lead to new crimes like “drone stalking” and “drone trespassing,” lawmakers are being told.

A Congressional Research Service report published Wednesday, Integration of Drones Into Domestic Airspace: Selected Legal Issues, sets out the many contentious areas around unmanned aircraft. It cautions that in the future, as drones become more easily available to private citizens, we may see the technology used to commit various offences. This could mean neighbors using drones to infiltrate one another’s gardens as a means of harassment, or a voyeur using one strapped with a camera and microphone to photograph women and listen in on people’s conversations.

http://www.slate.com/blogs/future_tense/2013/02/01/drones_could_be_used_for_stalking_voyeurism_says_congressional_research.html
No sh**, Sherlock.

Allegations of a gun in a backpack at school permit a search of the backpack, even if the backpack was removed from the possession of the student. “[T]he scope of a permissible school-safety search is determined by what is reasonable under the perceived circumstances, which, in turn, depends on the nature of the safety threat. [T.L.O.] at 392 n 5.’ For example, a ‘reasonable suspicion that the person searched is carrying a rifle’ would ‘not ordinarily be sufficient to justify a strip search of the person or a search of the person’s wallet.’ Id.” In re A. J. C., 2013 Ore. App. LEXIS 122 (January 30, 2013):

Here, Smith was confronted with an immediate threat both to a named student and to the general safety of the school. As noted, Glader told Smith that, in addition to V, youth might have threatened other, unidentified students. Smith did not know the type or size of the gun that youth reportedly had brought to school or the manner in which youth possessed it. That is, Smith did not know whether youth was carrying the gun on his person, had the gun in his backpack, or had concealed it somewhere else inside the school. Thus, Smith was faced with the choice of returning the unopened backpack to youth, his mother, or the family friend, searching elsewhere in the school, or searching youth’s person. Smith chose to search the backpack, and, in light of the other options, that choice was reasonable; it was the most likely to reveal a gun and dissipate the safety threat without further intrusions or delay. For those reasons, in light of the nature of the safety threat, Smith’s decision to search youth’s backpack was reasonable.

Student Press Law Center: School cellphone searches test boundaries of students’ Fourth Amendment rights by Frank LoMonte:

It happened last week at an upstate New York high school, where a 14-year-old boy and his girlfriend are now under criminal investigation after a school principal discovered “inappropriate” photos of the girl while searching the boy’s cellphone.

Is this legal? Are there limits to how deeply a school can intrude into a student’s electronic notes, messages and photos?

Despite what many school and law-enforcement officials may insist, the Fourth Amendment very much exists on school grounds. The Supreme Court reaffirmed as recently as 2009 that it’s possible for a school search to go too far, if a search is highly intrusive and is unsupported by reasonable grounds for suspicion.

CBS St. Louis: KC Mo. Catholic “High School To Collect Students’ Hair For Mandatory Drug Testing”:

A Kansas City high school will begin collecting hair from students to conduct mandatory drug tests.

KSHB-TV reports that Rockhurst High School will start the random drug testing during the 2013-14 school year.

“Our point is, if we do encounter a student who has made some bad decisions with drugs or alcohol, we will be able to intervene, get the parents involved, get him help if necessary, and then help him get back on a path of better decision making, healthier choices for his life,” Rockhurst Principal Greg Harkness told KSHB-TV.

Remember, drug testing by a Catholic high school is not “state action” governed by the Fourth Amendment.

Reason.com: This Dog Can Send You to Jail; How cops and their canines manufacture probable cause by Jacob Sullum:

Robert J. Burns, a 55-year-old retired nurse who lives in St. Louis, was returning from a trip to the West Coast last October when his white Nissan pickup truck was pulled over on Interstate 40 near Amarillo. Burns was carrying a 12-foot aluminum fishing boat on top of the truck, and he had been struggling against high winds that kept pushing him toward the shoulder. The sheriff’s deputy who stopped him thought he might be drunk.

“He asked me to step out and come back to his car,” Burns says, “and that’s when I noticed the dog in the back seat, a yellowish Lab. I explained that I hadn’t been drinking and my getting on the shoulder of the road was strictly from the wind. He said that he was going to write me a warning, and I said, ‘OK, that’s fine.’ He asked me if I had any drugs in the car. I said, ‘No, sir, I don’t do drugs, and I don’t associate with people who do.’ He asked me would I mind if he searched my vehicle, and I said, ‘Well, yes, I would mind if you searched my vehicle.’ ”

But thanks to the U.S. Supreme Court, the deputy did not have to take no for an answer. In the 2005 case Illinois v. Caballes, the Court declared that “the use of a well-trained narcotics-detection dog…during a lawful traffic stop generally does not implicate legitimate privacy interests.” So the deputy was free to walk his dog around Burns’ truck. “He got out with this dog and went around the car, two or three times,” Burns says. “He came back and said the dog had ‘passively alerted’ on my vehicle.” Burns, who is familiar with drug-detecting dogs from his work as an M.P. at Edwards Air Force Base in the 1970s, was puzzled. Properly trained police dogs are supposed to indicate the presence of drugs with a clear, objectively verifiable signal, such as sitting down in front of an odor’s source or scratching at it. Yet “the dog never sat down, the dog never scratched, the dog never did anything that would indicate to me that it thought there was something in there.”

As Ron White opined: “What’s the sign of his alert? A blank stare?”