When seeing a coming confrontation by officers, reaching into pocket, removing a gun, and tossing it in the nearby bushes is a waiver of any expectation of privacy. [He’s lucky he didn’t get shot.] United States v. Davis, 2013 U.S. Dist. LEXIS 6420 (E.D. Mich. January 16, 2013):

Because the Court finds that Defendant possessed the handgun and discarded it before complying with Officer West’s orders, Defendant was not seized prior to abandoning the handgun. Defendant’s actions are similar to the defendants in Martin and Thomas, who did not comply with officers’ orders, discarded firearms, and then were seized, in that order. Martin, 399 F.3d at 752; Thomas, 77 F. App’x at 863. Here, Officer West first ordered Defendant to stop. After Defendant did not comply and passed through the front gate, Officer West exited his vehicle and again ordered Defendant to stop when he saw that Defendant had reached for something on his person. Before compliance with Officer West’s second order, Defendant abandoned his handgun. As the authorities cited above explain, the abandoned handgun was not the fruit of an illegal seizure because the seizure had not yet occurred. Hodari D., 499 U.S. at 629.

Officers arrived at a known drug house with a search warrant, and they saw the defendant in the front yard. His hesitation in getting on the ground was an indication of a possible attempt to flee or look to escape, and that justified a stop and frisk. United States v. Lucas, 2012 U.S. Dist. LEXIS 184488 (N.D. Ga. December 14, 2012):

Here, the Court finds that the officers possessed reasonable suspicion of criminal activity. As the warrant established, the officers arrived at the house with probable cause to believe that it was the site of drug trafficking activity. The officers saw the Defendant on the front lawn of this known drug dealing location. When they instructed him to get on the ground, he hesitated. According to one officer, he made a movement that suggested he was about to flee. The other witness did not recall seeing movement but recalled that the Defendant looked around as if trying to find an avenue of escape. Either way, he did not immediately comply. The officers also explained that it is common for drug dealers to post look-outs or guards outside of drug dealing locations. All of these facts combined to establish reasonable suspicion that the Defendant was participating in criminal activity.

The court added “looking around” as if to find an avenue of escape as a critical fact, and it was. Just standing in the yard should mean nothing if he can’t be otherwise connected to the drug house. High crime area alone is not enough, and I recall other cases actually holding merely being outside a house during a drug raid isn’t enough. Moral: Just let them arrest you and deal with it later. It never helps to run, or, as here, even try to run. If he hadn’t flinched, the suppression motion might have had to be granted. Sometimes criminal defendants are their own worse enemies.

The defendant is a California registered medical marijuana user, and she was relieved of the MMJ at a border checkpoint in Yuma. She was originally charged with possession, but it was dismissed because Arizona recognized out-of-state registered MMJ users. She sought return of the MMJ, and the state resisted, claiming that federal law preempted and it would constitute a federal crime of delivery to return it. The court disagreed, finding no preemption because the Sheriff was immune under federal law to comply with state law. 21 U.S.C. § 885(d). Without an actual threat of her federal prosecution, the question of her being prosecuted for receiving is not ripe for review. State v. Okun, 2013 Ariz. App. LEXIS 6 (January 10, 2013):

P17 In the absence of any actual or threatened prosecution of Okun under federal law, and given the immunity that federal law affords the Sheriff for complying with the return order, the question is not ripe. See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1137 (9th Cir. 2000) (if no enforcement action or prosecution is threatened or imminent, the dispute is premature). By the same token, on the facts of this case, the State lacks standing to argue that federal law prohibits Okun from possessing the marijuana. Although Arizona’s constitution does not contain a case or controversy requirement, a party must demonstrate a distinct and palpable injury caused by the complained-of conduct. Karbal v. Ariz. Dep’t of Revenue, 215 Ariz. 114, 116, ¶ 7, 158 P.3d 243, 245 (App. 2007). Here, in the language of Karbal, the Sheriff has no “personal stake” in whether the federal Controlled Substances Act might invalidate Okun’s right under the AMMA to possess an allowable amount of marijuana. See id. The requirement of standing “is consistent with notions of judicial restraint and ensures that courts refrain from issuing advisory opinions, that cases be ripe for decision and not moot, and that issues be fully developed between true adversaries.” Bennett v. Brownlow, 211 Ariz. 193, 196, ¶ 16, 119 P.3d 460, 463 (2005); see also County of San Diego v. San Diego NORML, 81 Cal. Rptr. 3d 461, 472-73 (App. 2008) (county has no standing to raise hypothetical constitutional infirmities of a statute when statute did not cause it injury).

Looking at news stories last night, I had some questions about the mechanics of firearm surrender under NYS’s Secure Ammunition and Firearms Enforcement Act signed into law yesterday. I found that New York law already is replete with provisions for surrender of firearms or licenses on the occurrence of particular events. The Act uses “surrender” 42 times. The first, for example:

§ 2-a. Firearm, rifle or shotgun surrender order. Upon entry of a verdict of not responsible by reason of mental disease or defect, or upon the acceptance of a plea of not responsible by reason of mental disease or defect, or upon a finding that the defendant is an incapacitated person pursuant to article seven hundred thirty of this chapter, the court shall revoke the defendant’s firearm license, if any, inquire of the defendant as to the existence and location of any firearm, rifle or shotgun owned or possessed by such defendant and direct the surrender of such firearm, rifle or shotgun pursuant to subparagraph (f) of paragraph one of subdivision a of section 265.20 and subdivision six of section 400.05 of the penal law.

There are several others, such as for conviction of a crime, or believed to be mentally impaired, with a psychotherapist reporting privilege, all protected by judicial review.

What if the owner of a firearm refuses to give it up when ordered to by a court? A search warrant issues. People v. Degiorgio, 36 A.D.3d 1007, 827 N.Y.S.2d 342, 343 (3d Dept. 2007). Because it is a compelled act of production, however, it can’t be used against the gun owner under the Fifth Amendment. People v. Havrish, 8 N.Y.3d 389, 834 N.Y.S.2d 681, 866 N.E.2d 1009 (2007). As for a search warrant, it could be viewed as an administrative warrant, but it is still issued by a judicial officer and subject to review for sufficiency.

GSR test doesn’t need a separate warrant if it is done incident to arrest. United States v. Williams, 2013 U.S. Dist. LEXIS 5943 (N.D. Va. January 15, 2013) (adopting R&R):

Although the defendant feels that [United States v. Simmons, 380 Fed. Appx. 323 (4th Cir. 2010),] only provided qualified approval regarding conducting a GSR search without a warrant incident to arrest, this Court believes that the only qualification the Fourth Circuit indicated was the requirement that it be conducted pursuant to a lawful arrest. As indicated, this Court finds that such arrest was in fact lawful, as the officers had probable cause to make the arrest and, therefore, the magistrate judge’s report and recommendation concerning the motion to suppress evidence is affirmed and adopted.

… The Fourth Circuit stated in Simmons, “the GSR test, a ‘very limited search,’ was appropriate as a search incident to arrest” after it found that Simmons did not contest the lawfulness of the arrest. 380 F. App’x at 330; see United States v. Allen, 358 F. App’x 697, 699 (7th Cir. 2009) (finding no Fourth Amendment violation concerning a GSR test conducted without a warrant as “the delicate nature of the gunshot residue required law enforcement to administer the test quickly before the evidence could be wiped off or destroyed”); see United States v. Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006) (finding no Fourth Amendment violation concerning a GSR test so long as the arrest was valid, as the “presence of gun powder on his hands was relevant” and the defendant “could have eventually removed or destroyed” the evidence).

Officers forcibly arrested defendant and took him to the DEA office to obtain his consent, which is found invalid, as was his statement. “And as noted above, the evidence suggests the agents’ unlawful actions, including the forcible manner of arrest and transporting defendant to the DEA, had an investigatory purpose and were designed to surprise or confuse defendant and thereby obtain information from him, rather than to secure his voluntary cooperation.” Ultimately, however, a search warrant was obtained free of the taint of the consent and statement, and that warrant is not suppressed, but the rest is. United States v. Lindgren, 2013 U.S. Dist. LEXIS 4912 (D. Kan. January 11, 2013).

GPS on defendant’s car before Jones was valid under Davis. Alternatively, the government had a ping tracking warrant for his cell phone which is not contested. United States v. Orbegoso, 2013 U.S. Dist. LEXIS 5881 (D. Ariz. January 15, 2013).*

The search warrant for defendants’ motel room was based on probable cause. Part of that was from a plain view of the contents of their car parked outside, which is not challenged. United States v. Medina, 2012 U.S. Dist. LEXIS 184369 (D. Minn. October 31, 2012) (R&R).*

A trial court issued an injunction against a strip club requiring searches of employees’ bags coming to work and video recording those searches as well as any public area of the club. The court held that the club lacked standing to complain of the searches and recording that it was being ordered to conduct invasions of privacy by injunction and make the recordings available to the government. Nabilco Inc. v. State, 2013 Tex. App. LEXIS 157 (Tex. App. – Houston (14th Dist.) January 10, 2013) (memorandum opinion):

The provisions at issue in this appeal require appellants to thoroughly check all bags of independent contractors and employees each time they enter appellants’ premises and videotape those checks, enforce a dress code for all patrons on the premises requiring shirts to be tucked in, enforce a dress code for dancers to cover their buttocks, and use existing video cameras to record activity at all times that the premises are open.

Appellants argue that bag checks and video cameras, with tapes submitted to the State, violate the Fourth Amendment protections against unreasonable searches and seizures. This contention fails because the rights invoked by Treasures belong to the individual employees, contractors, and patrons — not to Treasures. “HN15Fourth Amendment Rights are personal rights which . . . may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 428, 58 L. Ed. 2d 387 (1978); see also United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010) (“Fourth Amendment rights are personal rights, which may be enforced only by the person whose rights were infringed.”). A party lacks standing to complain about the invasion of someone else’s personal rights. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). Therefore, appellants have no standing to assert a Fourth Amendment claim on behalf of Treasures’ dancers and customers. See Club Retro, LLC v. Hilton, 568 F.3d 181, 195 n. 5 (5th Cir. 2009) (club owner had no standing to assert Fourth Amendment rights on behalf of its patrons).

In Skinner, the railroad companies had to conduct the searches of employees by federal regulation. That didn’t bother SCOTUS.

Defendant was suspected of a bank robbery. While the vehicle searched was in another person’s name, defendant regularly drove it, and that gave him standing to contest the search by consent the other person gave. Her consent was free and voluntary after reading a consent form. Defendant never negated the consent at the scene. Moreover, the officers had probable cause to search the car because they believed it was involved in the bank robbery. United States v. Lopez, 2012 U.S. Dist. LEXIS 184211 (E.D. Tenn. August 22, 2012).*

In a Rule 41(g) motion for return of property, the government showed that it may use most of the things seized from defendant for trial, but some it offered to return. Essentially, as long as the things may reasonably be used at trial, the government doesn’t have to return them. As to the things being returned, defendant is in custody, so it’s up to the BOP what happens with it. United States v. White, 2013 U.S. Dist. LEXIS 4627 (S.D. Fla. January 11, 2013).*

“Applying the relevant principles, the Court concludes that the search warrant affidavits are replete with probable cause.” Motion to suppress for lack of probable cause denied. United States v. Winfrey, 2013 U.S. Dist. LEXIS 4585 (D. Neb. January 10, 2013).*

Information from the anonymous informant was not verified, except for one piece of personal information that was obvious. Therefore, issuance of the search warrant lacked probable cause. This was a fundamental violation of state law, therefore the Fourth Amendment, and suppression was required. Defense counsel was thus ineffective for not challenging the search. State v. Humphrey, 2013 Ohio 40, 2013 Ohio App. LEXIS 21 (2d Dist. January 11, 2013).

Possession of a reencoded (fraudulent) credit card was pretty much probable cause in itself, aside from all the false statements and the statements of the suspects connecting themselves. United States v. Robinson, 2013 U.S. Dist. LEXIS 5128 (S.D. Ind. January 14, 2013).*

Law enforcement is not prohibited from recording a conversation between a CI and the defendant. United States v. Houston, 2013 U.S. Dist. LEXIS 5320 (E.D. N.Y. January 12, 2013).*

The government bore the burden of proof on consent to search defendant’s house, and it failed. While the officers were otherwise credible, the discrepancies in their versions was too much to tolerate when a search of the home is an issue. United States v. Starks, 2013 U.S. Dist. LEXIS 4985 (N.D. Okla. January 14, 2013)*:

While discrepancies in the testimony of the officers could be the result of the passage of time (here, more than one year), where the government bears the burden of proof, and the discrepancies are material to the issue of consent, the Court should not turn a blind eye to even minor discrepancies.²

2 The Court does not find that any officer was not credible or that an officer intentionally falsified testimony or otherwise was intentionally deceptive. Instead, the discrepancies in the officers’ testimonies, when balanced with other credibility findings, are especially important where, as here, the government bears the burden.

Catherine W. Kimel, DNA Profiles, Computer Searches, and the Fourth Amendment, 62 Duke Law Journal 933-973 (2013). Abstract:

Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled a database containing the DNA profiles of over eleven million citizens. Without judicial authorization, the government searches each of these profiles one-hundred thousand times every day, seeking to link database subjects to crimes they are not suspected of committing. Yet, courts and scholars that have addressed DNA databasing have focused their attention almost exclusively on the constitutionality of the government’s seizure of the biological samples from which the profiles are generated. This Note fills a gap in the scholarship by examining the Fourth Amendment problems that arise when the government searches its vast DNA database. This Note argues that each attempt to match two DNA profiles constitutes a Fourth Amendment search because each attempted match infringes upon database subjects’ expectations of privacy in their biological relationships and physical movements. The Note further argues that database searches are unreasonable as they are currently conducted, and it suggests an adaptation of computer-search procedures to remedy the constitutional deficiency.

Defendant was stopped for a traffic offense, and he reeked of smoked marijuana. He was ordered out of the car, and the officer saw a bulge in the pocket, felt it, and knew it was not a weapon. He told defendant to empty his pockets thinking it was a baggy of marijuana, and it was. Cash also was produced. This was excessive under Terry. The government’s argument it was valid as a search incident is rejected since it argued that defendant was not arrested to claim the benefits of Terry. United States v. Mitchell, 2012 U.S. Dist. LEXIS 184187 (W.D. N.Y. November 27, 2012):

Applying the foregoing constitutional standards to the evidence adduced at the suppression hearing I conclude that Officer Funderburk’s post-frisk order to Mitchell to “empty his pockets” was not reasonable under the Fourth Amendment. Funderburk never testified that the bulks felt like weapons or even that he suspected that they contained weapons. Indeed, Officer Funderburk testified that before commencing the frisk he “had a suspicion” that the bulk was a baggie of marijuana based on the odor coming from the Van (see 4/27/12 Tr. at p. 55) and after the frisk never suspected that the bulge was a weapon. The Government did not present evidence that the contour or mass of the bulge made its identity as contraband immediately apparent to Officer Funderburk. Accordingly, I find that the seizure of the currency after the Terry frisk was improper. See United States v. Owens, No. 07-20568-CR, 2008 WL 151978, at *5 (S.D. Fla. Jan. 15, 2008) (Officer’s “failure to state any reason for suspecting that the bulge in the defendant’s pocket was a weapon or contraband made the removal of the object impermissible under Terry.”); United States v. Thornton, 493 F. Supp. 2d 1024, 1034 (S.D. Ohio 2007) (In the absence of “testimony that either the cellphones or the cash felt like a weapon” the government “failed to show that the frisking/searching officer stayed within the bounds marked by Terry.”).

Power Down: Tasers, The Fourth Amendment, and Police Accountability in the Fourth Circuit by Ian A. Mance, 91 N.C. L. Rev. (forthcoming 2013):

This Comment focuses its attention on the phenomenon of taser abuse in the states that comprise the Fourth Circuit: Maryland, North Carolina, South Carolina, Virginia, and West Virginia. It assesses the state of the law as presented to genuine victims of police abuse who wish to vindicate their right to be free of excessive force under 42 U.S.C. § 1983, the federal statute under which plaintiffs can seek relief for violations of their constitutional rights by state actors.

Defendant’s flight from the officer who was attempting to seize him for a minor offense was a new crime to which the exclusionary rule did not apply. His dropping his gun when shot at was still abandonment under Hodari D. United States v. Gant, 2012 U.S. Dist. LEXIS 78853 (D. Minn. June 7, 2012), R&R 2012 U.S. Dist. LEXIS 79269 (D. Minn. May 22, 2012).*

Probable cause developed to search defendant and his companion’s purse, and that provided probable cause to search the car they arrived in. The defendant admitted that the stop started with the officer quite respectfully offering assistance because they might be lost. One thing turned into another into another, and PC developed. [A new one on me: “motel drug interdiction duty” in North Carolina.] United States v. Laihben, 482 Fed. Appx. 827 (4th Cir. 2012).*

The stop here was not so long that the traffic stop was turned into a detention requiring reasonable suspicion. The passenger also had no standing in the vehicle. United States v. Santos, 2012 U.S. Dist. LEXIS 79252 (N.D. Ga. April 24, 2012).*

The traffic stop was valid, despite claims of pretext, and that led to probable cause to search defendant’s car which also provided probable cause as to his house. United States v. Charles, 482 Fed. Appx. 948 (5th Cir. 2012).*

Defendant disclaimed any connection to a motel room that the police wanted to search, so they got consent from a woman inside. Aside from lacking standing, defendant’s claim that defense counsel was ineffective for not calling the motel manager as a witness fails because it wouldn’t add anything. Goodloe v. United States, 2012 U.S. Dist. LEXIS 144916 (W.D. Ky. August 1, 2012).*

Defendant’s detention was with reasonable suspicion, and the refusal to consent, of course, can’t be considered. Dimino v. State, 2012 WY 131, 286 P.3d 739 (2012).*

Nexus was shown to defendant’s house by witnesses saying defendant had a gun and fired it, and the car in front of his house was hit by a bullet. “The nexus between the items to be seized and the place to be search need not establish to a certainty that the items to be seized will be found in the location specified in the warrant, nor exclude any and all possibility that the items might be found elsewhere. Rather, the test is probable cause, not certainty. ‘The affidavit need not convince the magistrate beyond a reasonable doubt, but must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.’ Commonwealth v. Donahue, supra.” Commonwealth v. Thevenin, 82 Mass. App. Ct. 822, 978 N.E.2d 1215 (2012).*

The probable cause for defendant’s apartment was not stale because the affidavit in support referred to ongoing drug sales, and there was good faith. In the search a safe was seized, and information received at the time of the search separately supported the search warrant for the safe. United States v. Gibbs, 2012 U.S. Dist. LEXIS 168586 (W.D. Pa. November 28, 2012).*

Defendant called 911 because of a small propane tank exploding, severing the tip of his finger and cutting him. The 911 dispatcher did not limit the size of the tank, and firefighters responded. Through a window they could see blood and heard the sound of running water. Defendant had cuts on his chest, too, and he explained the explosion. While the explosion was not great, based on all the firefighters knew, an entry was justified, and marijuana plants and pipe bombs were in plain view. United States v. Infante, 701 F.3d 386 (1st Cir. 2012):

Based on these facts, the firefighters had a reasonable basis, approximating probable cause, both to believe that there was an emergency and to associate the emergency with the inside of Infante’s residence. Infante’s reports of an explosion involving volatile gas, whether propane or butane, coupled with his significant wounds that were consistent with the occurrence of an explosion, caused the firefighters to reasonably perceive an emergency — the prospect of a secondary explosion resulting from escaping gas. Under these circumstances, the danger of a secondary explosion is akin to that of a rekindling fire that the Supreme Court identified in Tyler as a continuing danger that justified fire officials’ remaining in a building for a reasonable time after extinguishing a fire in order to promptly investigate its cause. See Tyler, 436 U.S. at 510; see also Michigan v. Clifford, 464 U.S. 287, 293 (1984) (“Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases.”). Indeed, relying in part on the Court’s reasoning in Tyler, a number of our circuits have held that the presence of potentially explosive chemicals can justify warrantless entry into a home. …

Identification of person to be arrested in the arrest warrant by street name and description and where to find him was particular enough. United States v. Dunaway, 482 Fed. Appx. 714 (3d Cir. 2012):

Here, the warrant did not include the appellant’s proper name, Nisia Dunaway, referring to him instead merely as “BLIZZ.” But the warrant did provide a physical description of him, including his height, skin color, hair style and color, and build— though not, as Dunaway points out, his age. Further, the warrant specified that he would be found arriving by train in Johnstown at 6:00 pm on April 10, 2010.

The warrant’s physical description of “Blizz” and the specific location where he would be found at a precise time were, together, sufficiently particular that an executing officer could identify the appellant with reasonable certainty. Compare Doe, 703 F.2d at 747 (holding that warrant to arrest “John Doe a/k/a “Ed?” was unconstitutional for lack of particularity), with Ferrone, 438 F.2d at 389 (upholding search of defendant’s person pursuant to warrant to search “John Doe, a white male with black wavy hair and stocky build observed using the telephone in Apartment 4-C 1806 Patricia Lane, East McKeesport, Pennsylvania”). See also 2 LaFave, supra, § 4.5(e), at 598 n.134 (collecting cases). Thus, we reject Dunaway’s contention that the warrant to search his person was so lacking in particularity as to be an unlawful general warrant.

Plaintiff was arrested and detained for 224 days for a sexual assault charge that was ultimately dismissed. He had a prosthetic lower leg and had prostate surgery that made it impossible for him to ejaculate, two things not mentioned anywhere in the investigation. “[I]t is not clear that individuals have a constitutional right to a reasonable post-arrest investigation.” Barham v. Town of Greybull Wyo., 483 Fed. Appx. 506 (10th Cir. 2012)*:

We turn next to Plaintiff’s argument that his constitutional rights were violated by his 224-day detention on charges that were later dismissed. He contends there were problems with the alleged victims’ stories, particularly relating to Plaintiff’s inability to ejaculate semen, and he argues a reasonable law enforcement officer would have investigated these problems and attempted to obtain Plaintiff’s release earlier. As we stated in Romero, it is not clear that individuals have a constitutional right to a reasonable post-arrest investigation. See Romero, 45 F.3d at 1478. To the extent there is such a right, it must be based on “facts that, at a minimum, demonstrate Defendants acted with deliberate or reckless intent.” Id. After thoroughly reviewing the record, we conclude that the officers’ post-arrest investigation was, at most, negligent. Thus, Plaintiff has not shown the officers’ conduct during his detention violated any potential constitutional right to a reasonable post-arrest investigation.

Defendant accepted state furlough: “Lamell’s choice was between remaining in his cell or going on furlough. Under such circumstances, this Court cannot conclude that acceptance of certain terms of release rendered his assent involuntary.” Therefore, he was subject to search on furlough. United States v. Lamell, 2012 U.S. Dist. LEXIS 153424 (D. Vt. October 25, 2012).*

Defendant’s stop for turning too wide and going outside the lane was justified. State v. Petty, 2012 Tenn. Crim. App. LEXIS 866 (October 11, 2012).*

No jurisdiction to enjoin TSA’s alleged Fourth Amendment violations. Haka v. United States, 107 Fed. Cl. 111 (2012).*