An uncorroborated tip led to a strip search of a female student in school. Nothing was found, and the student was threatened with trouble if she talked about it. The question is close, but the court finds that plaintiff did not show sufficient precedent that an uncorroborated tip is not enough for a school search to overcome qualified immunity. S.S. v. Turner Unified School District No. 202, 2012 U.S. Dist. LEXIS 177180 (D. Kan. December 14, 2012)*:

The court recognizes in that responding to a qualified immunity challenge, plaintiff is not required to find Supreme Court or Tenth Circuit cases with precisely the same facts. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). But plaintiff must demonstrate that the right allegedly violated is clearly established in a more particularized and relevant sense:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in light of the pre-existing law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted).

As one example, plaintiff could have identified Supreme Court or Tenth Circuit case law discussing whether an informant’s tip justified a finding of reasonable suspicion in the school setting or in other circumstances. See, e.g., United States v. Chavez, 660 F.3d 1215, 1222 (10th Cir. 2011) (discussing relevant factors in determining whether a tip provides reasonable suspicion). But plaintiff did not make this showing or engage in this analysis. And it is not the court’s job to search the case law and create arguments on plaintiff’s behalf. Accordingly, plaintiff has not carried her burden and demonstrated that the right allegedly violated was clearly established. Hillidard v. City & Cnty. of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991); …

Defendant was acquitted of a weaving offense, but convicted of DUI for driving on the wrong side of the road. Defense counsel was not ineffective for not moving to suppress the stop because the acquittal of the weaving charge doesn’t mean anything on the DUI and the basis for the stop. State v. Arnold, 2012 Ohio 5809, 2012 Ohio App. LEXIS 5002 (9th Dist. December 10, 2012).

A traffic stop requires reasonable suspicion, not probable cause, and the trial court erred in so finding. State v. Liebling, 2012 Ohio 5818, 2012 Ohio App. LEXIS 5011 (9th Dist. December 10, 2012).

Defendants were pulled over on suspicion of being involved in a robbery and got out of the car with hands up. That was a seizure, but it was with reasonable suspicion. The description of the robbers was not all that generic, and they fit it under the totality of circumstances, including location and dress. The detention was also reasonable in scope. United States v. Brown, 2012 U.S. Dist. LEXIS 176658 (D. Mass. December 12, 2012).*

Rolling Stone: Outrageous HSBC Settlement Proves the Drug War is a Joke by Matt Taibbi:

If you’ve ever been arrested on a drug charge, if you’ve ever spent even a day in jail for having a stem of marijuana in your pocket or “drug paraphernalia” in your gym bag, Assistant Attorney General and longtime Bill Clinton pal Lanny Breuer has a message for you: Bite me.

Breuer this week signed off on a settlement deal with the British banking giant HSBC that is the ultimate insult to every ordinary person who’s ever had his life altered by a narcotics charge. Despite the fact that HSBC admitted to laundering billions of dollars for Colombian and Mexican drug cartels (among others) and violating a host of important banking laws (from the Bank Secrecy Act to the Trading With the Enemy Act), Breuer and his Justice Department elected not to pursue criminal prosecutions of the bank, opting instead for a “record” financial settlement of $1.9 billion, which as one analyst noted is about five weeks of income for the bank.

The banks’ laundering transactions were so brazen that the NSA probably could have spotted them from space. …

Defendant was not the renter of the hotel room searched, and he showed no connection to the property at all, so he had no standing to challenge the police entry and search. United States v. Golphin, 2011 U.S. Dist. LEXIS 63517 (M.D. Fla. June 15, 2011).*

The court accepts the officer’s testimony that defendant was speeding and that justified the stop. (The rest is uncontested by the defendant.) United States v. Figueroa-Cruz, 2011 U.S. Dist. LEXIS 62455 (D. Kan. June 9, 2011).*

Defense counsel did not file a motion to suppress, but it would have been waived by the plea agreement, and it is apparent that the defendant needed to plead guilty to “help himself out.” Beaudion v. United States, 2011 U.S. Dist. LEXIS 63574 (C.D. Ill. June 16, 2011).*

Defendant’s alleged dissatisfaction with his attorney’s performance in the motion to suppress was expressly waived by his plea agreement. United States v. Brookshire, 2011 U.S. Dist. LEXIS 63749 (N.D. Ind. June 15, 2011).*

Defendant’s vague request for the court to review defense counsel’s performance without saying what it was that he failed to do or show prejudice does not show ineffective assistance. Lengen v. United States, 2011 U.S. Dist. LEXIS 63658 (N.D. Ohio June 15, 2011).*

Nexus for a suspect’s home is based on “common sense” appeal of the inference evidence may be found there after a crime elsewhere. United States v. Morris, 2012 U.S. Dist. LEXIS 175977 (D. Minn. December 12, 2012):

Morris argues that there was insufficient evidence of a nexus between Morris’s home and the evidence expected to be found. The Eighth Circuit has noted:

Although there must be evidence of a nexus between the contraband and the place to be searched before a warrant may properly issue, we have held that an officer executing a search warrant may rely in the permissibility of the issuing judge’s inference that such a nexus exists when that inference has common sense appeal.

United States v. Houston, 665 F.3d 991, 995 (8th Cir. 2012) (citations and internal quotation marks omitted) (emphasis added). The Court concludes that, here, there was common sense appeal to the inference that evidence related to the shooting would be found in Morris’s home. Connor detained Morris between the shooting site and his home, “directly on the opposite side” of his home, making it reasonable to assume his home was where he came from on his way to the shooting and where he was going. Under these circumstances, it was reasonable to infer that evidence related to the crime existed in Morris’s home. See United States v. Summage, 481 F.3d 1075, 1078 (8th Cir. 2007) (finding it reasonable to infer that the defendant would have a video and photographs at his new residence where “it could be presumed that [the defendant] would maintain in his possession the video and photographs”). Specifically, the warrant sought latex gloves, firearms/ammunition, and evidence of gang affiliation, which were items that could be reasonably expected to be found in his home and not left at the scene of the crime. Accordingly, the Court will deny Morris’s motion to suppress evidence stemming from the warrants.

Probable cause existed for seizure of money from a car by the way it was bundled and packaged, among other things. Legitimate businesses do not transport their cash in cardboard boxes. United States v. Julian, 2012 U.S. App. LEXIS 25356 (11th Cir. December 12, 2012)*:

In determining whether probable cause existed at the time of a seizure of alleged drug proceeds, we evaluate whether, given a commonsense view of “the realities of normal life” and the totality of the circumstances, there is “probable cause to believe that the money is the proceeds of, or is otherwise connected to, any illegal drug transaction.” Id. Even where the evidence presented by the government would support an alternative hypothesis for the source of funds, this does not prevent the evidence from being probative on the issue of probable cause. Id. …

. . .

Here, under the totality of the circumstances, we conclude that probable cause existed for the seizure of $21,015 in cash from the car Julian was driving. Although all seven factors identified by the district court, taken together, support a finding of probable cause, the most probative of these factors are the condition of the funds and their substantial value. At the time of the traffic stop, Julian was in possession of a significant amount of cash, the vast majority of which had been rubber-banded into 20 separate bundles of $1,000 each and concealed inside of a cardboard box, and “[a] common sense reality of everyday life is that legitimate businesses do not transport large quantities of cash rubber-banded into bundles and stuffed into packages.” $242,484.00, 389 F.3d at 1161. Julian had no paperwork, bank receipts, or any documentation whatsoever concerning the source of the funds. Although Julian provided an explanation for the cash’s origin, the fact that his explanation could support an alternative hypothesis does not prevent the lack of documentation from being probative on the issue of probable cause. See id.

In addition, unlike in Boyce, the video of the traffic stop in the present case did not belie Woolard’s testimony. …

The Hill: Drone-makers push feds on test flights by Kevin Bogardus and Keith Laing:

Lobbyists for the booming drone industry are pushing the Federal Aviation Administration (FAA) to stop delaying action on a plan that will open up U.S. skies to unmanned vehicles.

The agency has yet to select six test sites that will be used to gauge the safety of drone flights, despite a mandate to do just that under the FAA reauthorization bill that passed earlier this year. That has led to pressure from the Association of Unmanned Vehicles Systems International (AUVSI) and lawmakers on Capitol Hill to get the process moving.

ComputerWorld: Tendency of law enforcement to adopt new technology without considering its impact on privacy and civil liberties ‘unacceptable’ to one expert by Taylor Armerding:

Drones are not just for spying and targeted assassinations in Iraq, Afghanistan and other war zones. They are also being used extensively for surveillance in the U.S.

The fact of domestic drone surveillance is not new. There have been numerous reports of Customs and Border Protection using Predator drones to monitor the nation’s borders, and that multiple branches of the military are authorized to fly drones in the U.S.

But the Electronic Frontier Foundation (EFF) provided evidence last week of how extensive that use is, not only by the federal government but by local law enforcement as well, with a posting of several thousand pages of drone license records, along with a new map that tracks the location of those domestic flights.

Defendant’s detention, frisk, and search was without reasonable suspicion. It quickly evolved into a de facto arrest. There were general reports of robberies in the area, but nothing related to this stop. The officers’ heavy handedness was also a factor in finding a Fourth Amendment violation. United States v. Morgan, 2012 U.S. Dist. LEXIS 175192 (D. Neb. December 11, 2012)*:

The factors that courts consider in determining whether an investigative detention has become an arrest weigh in favor of finding an arrest. This is not the case of a lone law enforcement officer-two officers were involved from the outset and more officers arrived on the scene shortly thereafter. At least two squad cars were present. The nature of the crime under investigation was ostensible robbery, but there was no testimony with respect to number or locations of the robberies, whether the alleged robbers were armed, and no description of either suspects or vehicles involved. The officers’ articulable suspicions were weak. The only suspicious behavior was reaching under the automobile seat. Pat-downs of the defendant and his companions yielded no weapons or contraband. There is no evidence that the defendant was violent, uncooperative or aggressive. Other than the defendant’s gesture of reaching under the seat, there was no reason to suspect the defendant was armed and dangerous. There was no need for immediate action by the officer.

Also, there was an opportunity for the officer to have conducted himself in a less threatening manner. Officer Normandin did not testify as to any facts indicating a need to handcuff the defendant and the two young women once they were removed from the vehicle.

The government’s reliance on “officer safety” concerns to justify their actions in this case are perplexing. The court finds the officers have not shown a reasonable belief based on specific articulable facts that the defendant posed a threat of harm or danger once the defendants and passengers had been removed from the vehicle and patted down. …

Officers had probable cause to believe defendant had a grow operation based on his buying stuff at a store specializing in that and a trash pull finding marijuana leaves. An email in the trash pull that referred to the drug operation justified a search of his computer. Child pornography was stumbled upon in that search. Alternatively, the search warrant was valid under the good faith exception. United States v. Ellis, 2012 U.S. Dist. LEXIS 174367 (D. Kan. December 10, 2012).*

A 2255 can’t relitigate a denied motion to suppress. United States v. Brown, 2012 U.S. Dist. LEXIS 174515 (N.D. Ohio December 7, 2012).*

Defendant’s arrest was justified by probable cause, so the search of her person was valid incident to the arrest. United States v. Ortiz, 2012 U.S. Dist. LEXIS 174514 (D. Minn. November 20, 2012).*

This knock-and-talk was valid. Three LEOs were clearly identified and no guns were drawn. United States v. Poom-Medina, 2012 U.S. Dist. LEXIS 175222 (D. Ariz. December 11, 2012).*

Defendant was stopped for an expired tag, which was a valid stop. After he was out of the car, he fled, and that was another crime. United States v. Holifield, 2012 U.S. Dist. LEXIS 174597 (E.D. Tenn. September 27, 2012).*

Defendant failed to show that omission of disputed facts from the affidavit for the search warrant constituted a Franks violation. What was there showed probable cause, and including what was omitted wouldn’t have changed anything. United States v. Miller, 2012 U.S. Dist. LEXIS 174509 (N.D. Ohio December 10, 2012):

While “false information” can include material omissions, the Sixth Circuit has “repeatedly held that there is a higher bar for obtaining a Franks hearing on the basis of an allegedly material omission as opposed to an allegedly false affirmative statement.” United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008) (“Allegations of material omission are held to a higher standard because of the ‘potential for endless rounds of Franks hearings’ due to potentially ‘endless conjecture about investigative leads, fragments of information, or other matter[s] that might, if included, have rebounded to defendant’s benefit.'” (quoting United States v. Martin, 920 F.2d 393, 398 (6th Cir. 1990)). The Sixth Circuit has reiterated that “except in the very rare case where the defendant makes a strong preliminary showing that the affiant with an intention to mislead excluded critical information from the affidavit, and that omission is critical to the finding of probable cause, Franks is inapplicable to the omission of disputed facts.” Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998) (emphasis in original). Thus, “an affidavit which omits potentially exculpatory information is less likely to present a question of impermissible official conduct than one which affirmatively includes false information.” United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997).

P.S.: Defendant’s street name in the indictment is “Jesus Penis.”

Wired: Public Buses Across Country Quietly Adding Microphones to Record Passenger Conversations by Kim Zetter:

Transit authorities in cities across the country are quietly installing microphone-enabled surveillance systems on public buses that would give them the ability to record and store private conversations, according to documents obtained by a news outlet.

The systems are being installed in San Francisco, Baltimore, and other cities with funding from the Department of Homeland Security in some cases, according to the Daily, which obtained copies of contracts, procurement requests, specs and other documents.

The use of the equipment raises serious questions about eavesdropping without a warrant, particularly since recordings of passengers could be obtained and used by law enforcement agencies.

It also raises questions about security, since the IP audio-video systems can be accessed remotely via a built-in web server (.pdf), and can be combined with GPS data to track the movement of buses and passengers throughout the city.

There was no justification for a warrantless entry into defendant’s house to check on her welfare after an accident. The only information the police had was that she was not injured. There was no exigency because this was not a hot pursuit under Welsh; the police didn’t even see the accident. City of Cleveland v. Lynch, 2012 Ohio 5740, 2012 Ohio App. LEXIS 4942 (8th Dist. December 6, 2012).

There was a warrantless entry into defendant’s house based on a shots fired call and the police arrived there three minutes after the call. No evidence from that entry was admitted at trial, so there could be no error. State v. Cowan, 2012 Ohio 5723, 2012 Ohio App. LEXIS 4927 (8th Dist. December 6, 2012).*

The officer was sent to the house on a welfare check, and it was dark and remote. Cars were in the driveway, but there was no answer at the door which was unlocked and ajar. The officer pushed open the door, and the room looked ransacked like the place had been burglarized. Drugs were seen in plain view. While this was a “close call,” the court decides that this was a valid welfare check entry based on the totality. State v. Hallam, 2012 Ohio 5793, 2012 Ohio App. LEXIS 4981 (2d Dist. December 7, 2012).*

The search warrant for defendant’s house was issued without probable cause. The fact somebody worked in a medical marijuana operation in a state recognizing it is hardly indicative of criminality at his home. When undercover officers tried to buy from the dispensary, they were turned down because their “recommendations” could not be verified. United States v. Franklin, 2012 U.S. Dist. LEXIS 172808 (E.D. Cal. December 4, 2012).

The affidavit for search warrant was not based on stale information. While part of it was years old, it contained current information which showed it to be an ongoing drug operation. State v. Thomas, 2012 Ohio 5577, 2012 Ohio App. LEXIS 4855 (3d Dist. December 3, 2012).*

The search of defendant’s house was not incident to the arrest warrant; it was based on defendant’s parole agreement. United States v. Johnson, 2012 U.S. Dist. LEXIS 172163 (N.D. Ga. April 24, 2012).*

Keeping mind that affidavits for search warrants are usually drafted in the haste of a criminal investigation, this alleged false statement was just in artful drafting. United States v. Bradley, 2012 U.S. Dist. LEXIS 173827 (N.D. Ohio December 7, 2012):

Taking a commonsense approach, and keeping in mind that search warrant affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation,” United States v. Ventresca, 380 U.S. 102, 108 (1965), the Court is satisfied that the affiant, Detective Susan Barker, did not intentionally misstate the facts. … The challenged language in the affidavit may be lacking in precision, but the Court concludes that, if anything, this was a result of inartful drafting rather than an intent to deceive. The defendants have failed to prove that the police intentionally or with reckless disregard for the truth misstated the facts when they included the words “present” or “met” in the warrant affidavit.

Use of blue lights when a police car stops behind an already parked car as a part of the community caretaking function is not a stop. It is for safety. State v. Vandergriff, 2012 Tenn. Crim. App. LEXIS 452 (June 28, 2012).

Defendant’s cotton mouth and slurred speech and seeing a corner of a clear plastic sandwich bag was not reasonable suspicion of drugs. DUI? Likely, but that was not the focus of this investigation, and the continuation of this stop was unreasonable. State v. Jones, 47 Kan. App. 2d 866, 280 P.3d 824 (2012).

Defendant’s almost nonsensical answers to basic questions were enough to make reasonable suspicion. (Something like “where’s your luggage?” “In the back seat?” “There’s no luggage in the back seat.” “I’m wearing it all.”) State v. Dow, 375 S.W.3d 845 (Mo. App. 2012).*

Defendant’s DNA was taken from a straw left at the probation office, and this was not unreasonable under the Fourth Amendment. He was connected to a manslaughter. Corbin v. State, 428 Md. 488, 52 A.3d 946 (2012):

We again examine the evolving law regarding the scope of Fourth Amendment protections in the context of the collection and analysis of DNA by police. Unlike in earlier Maryland cases, the Maryland DNA Collection Act does not apply here because Petitioner Tonto Corbin was not arrested for any of the Act’s predicate offenses. Rather, Corbin was on probation for a drunken driving offense when his DNA was collected. The DNA was taken from saliva that Corbin left on a straw in the course of complying with an alcohol monitoring program mandated by the terms of his probation. Corbin challenges the use of that saliva in connection with a separate murder investigation that resulted in incriminating evidence against him.

We granted certiorari to address the following questions, as Corbin phrased them:

1. Does a DWI probationer, who had previously declined police requests to seize and test his DNA, voluntarily surrender his breath for DNA testing where State officers seize his DNA on the false pretense of seizing and testing only his blood alcohol?

2. In an entirely circumstantial case, was the evidence of Petitioner’s criminal agency legally insufficient because the State failed to establish that it was any stronger than evidence implicating two or three other suspects?

We shall hold that Corbin’s Fourth Amendment rights were not violated when the State recovered his DNA from the straw utilized for this mandatory test. We shall also hold that the evidence was sufficient to sustain Corbin’s conviction.

Not disclosing there was no strip search of the CI before the controlled buy did not undermine probable cause under Franks. United States v. Rigaud, 684 F.3d 169 (1st Cir. 2012).*

Defendant was accused of sex with a minor and production of child pornography with that minor. The fact the early information was partially years old did not make it stale because the sexual relationship just ended and its continuing utility to the defendant. Cochran v. State, 2012 Ala. Crim. App. LEXIS 45 (June 29, 2012).*

Driving the wrong way on an interstate highway was reasonable suspicion for a stop. During the stop defendant admitted to a gun, and it was not suppressed. State v. Taylor, 97 So. 3d 522 (La. App. 5 Cir. 2012).*

Kentucky S.Ct. adopts Buie protective sweep for the first time finding that the area swept during a 1:30 am knock-and-talk was inappropriate on the facts. Defendant and his girlfriend were in bed and the officers did a protective sweep of an adjoining room without any factual justification finding drug residue on a spoon and then coercing consent to search the entire house. Guzman v. Commonwealth, 375 S.W.3d 805 (Ky. 2012):

Today, for the first time, this Court follows and adopts the holding in Buie. We note, in passing, that four years before Buie our own Court of Appeals recognized that a “protective sweep” or “safety check” is an exception to the warrant requirement in Kentucky law. Commonwealth v. Elliott, 714 S.W.2d 494, 496 (Ky.App. 1986). Guzman points out that the Buie case is distinguishable from the facts of this case in that the “protective sweep” there was performed incident to an in-home arrest on a warrant and was for the purpose of protecting the safety of the police. We agree that Buie is clearly distinguishable. Unlike this case, the holdings in both Buie and Elliott dealt with a limited sweep in conjunction with an in-home arrest.

Note: The fact of a 1:30 am knock-and-talk should be presumptively invalid anyway as inherently coercive. How can armed police officers at the door at 1:30 am be non-consensual?

Doubletalk of the week: “DVDs of pornography” probably insufficient, but “‘records’ and ‘information’ encompassed ‘all the foregoing items of evidence in whatever form and by whatever means they may have been created, duplicated, transferred, or stored, including any electrical, electronic, or magnetic form’ to include ‘floppy diskettes, hard disks, CD, CD-ROM, DVD, DVD-Rom,’ other methods of documentation, and ‘[a]ny records or information related to Internet based pornography …’” is not. Womack v. State, 317 Ga. App. 496, 731 S.E.2d 387 (2012).* [So, they can’t search DVDs because it’s too inspecific, but they can search everything electronic or paper. Try and make sense of this because I can’t. This makes absolutely no sense that DVDs alone is not specific. How are they labeled? It was plenty specific and limited the search. Right outcome, but still a general search condoned by sloppy writing.]

Defendant stopped on a bicycle was issued a citation and the officer asked for consent to search without telling him the stop was effectively over. The state failed in its “heavy burden” of proof that the search was voluntary. Crist v. State, 98 So. 3d 81 (Fla. 2d DCA 2012):

Upon issuing the citation and without acknowledging to him that the stop was over, the officer asked if he could search Crist. Even if we could assume that Crist voluntarily agreed to the search at that point, the officer’s subsequent actions in waiting for a second patrol officer to arrive before conducting the search is the antithesis of a clear and convincing indication that a reasonable person would feel free to revoke consent and leave during that delayed waiting period. See Summerall v. State, 777 So. 2d 1060, 1061 (Fla. 2d DCA 2001) (“[A]fter the deputy issued appellant the traffic citation, he engaged appellant in further conversation in an attempt to delay him; requested to search appellant’s vehicle; and after this request was denied, told appellant that he still was going to have a canine walk around the vehicle. Under these circumstances, no reasonable person would have believed himself ‘free to leave.'”); cf. Sosa, 932 So. 2d at 584 (“No evidence was presented … indicating that any officer attempted to prolong the traffic stop. Nor was any evidence presented … that [the deputy] blocked her from leaving the scene, threatened her, held on to her license, or asked her to step out of her car.”).

Defense counsel first filed a no-merit Anders brief, and the court ordered rebriefing. Id. n. 1.