The information from the CI was not stale when the police corroborated the CI with information that the defendant was dealing drugs that day. Nexus to the house was shown by defendant leaving his place to go to a drug deal and coming back. It’s a reasonable inference the stash is in the house. United States v. Bradley, 2012 U.S. Dist. LEXIS 173827 (N.D. Ohio December 7, 2012).*

Defendant’s description and being involved in a shots fired incident was more than mere suspicion. They had the car, street name, and two people said he was in the car (one as shooter, one as driver). United States v. Roper, 2012 U.S. Dist. LEXIS 173402 (W.D. Wash. December 6, 2012).*

Defendant’s 2255 claim of illegal search and seizure was waived by not presenting it to the district court before conviction. United States v. Dantzler, 2012 U.S. Dist. LEXIS 173495 (W.D. La. September 25, 2012) [if had been raised as an IAC claim, it would at least be considered].*

AOL AutoBlog: White House clears way for NHTSA to mandate vehicle black boxes by Jeremy Korzeniewski:

At present, over 90 percent of all new vehicles sold in the United States today are equipped with event data recorders, more commonly known as black boxes. If the National Highway Traffic Safety Administration gets its way, that already high figure will swell to a full 100 percent in short order.

Such automotive black boxes have been in existence since the 1990s, and all current Ford, General Motors, Mazda and Toyota vehicles are so equipped. NHTSA has been attempting to make these data recorders mandatory for automakers, and according to The Detroit News, the White House Office of Management Budget has just finished reviewing the proposal, clearing the way. Now NHTSA is expected to draft new legislation to make the boxes a requirement.

The wrong number for the address of defendant’s place (“34” not “32”) was not a constitutional error. The correct color was shown, and the officers made certain that they entered the correct house when they got there by rechecking with other sources. United States v. Running Shield, 2012 U.S. Dist. LEXIS 172245 (D. S.D. December 4, 2012).

In an interstate transportation for prostitution case, a search warrant was validly issued for evidence to corroborate the victim’s version of events. A search warrant for sealed evidence bags coming from another state was as particular as it could get. United States v. Campbell, 2012 U.S. Dist. LEXIS 172246 (D. S.C. December 5, 2012).*

Any errors in the officers’ “smell statistic” of the number of times the smell of marijuana bore fruit at a grow operation were not so material or beyond reckless that they undermined the probable cause. Hamilton v. State, 2012 Alas. App. LEXIS 173 (December 5, 2012).*

SSRN: To Be Secure: The Forgotten Words of the Fourth Amendment by Luke M. Milligan:

The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” For over two hundred years the text “to be secure” has been neglected by courts and constitutional historians.

As currently interpreted, the Fourth Amendment is limited to the protection of persons against actual searches and seizures. If such a limitation had been the design of the framers, then the “to be secure” text must be acknowledged as superfluous. The prohibition of actual searches and seizures would have been sufficiently conveyed by a Fourth Amendment that read: “The right of the people, in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The framers’ inclusion of the “to be secure” language therefore suggests an intent to create a different, somewhat broader, right against searches and seizures.

The intended scope of this broader Fourth Amendment right depends upon the meaning of the term “secure” at the time of drafting and ratification. From my review of relevant historical materials, there appear to have been two contending meanings of “to be secure”: (1) “to be free of fear”; and (2) “to be protected.” Either definition expands the reach of the literal Fourth Amendment to new and important forms of government action. Currently the Amendment does not prohibit government (1) threats of unreasonable searches or seizures; (2) acts leaving persons unsure about the use of unconstitutional (or potentially unconstitutional) surveillance techniques; or (3) restrictions on home or personal security measures. These forms of government action, permissible under modern doctrine, would fall within the purview of the Fourth Amendment if the “to be secure” text were taken seriously. Its first plausible meaning (“to be free of fear”) renders all three acts described above (i.e., threats of search/seizure, creation of confusion about the use of unconstitutional surveillance techniques, and restrictions on home/personal security) vulnerable to Fourth Amendment challenges. The alternative plausible meaning (“to be protected”) calls into question the constitutionality of, at the very least, government restrictions on private security measures.

Defendant was Tasered and arrested outside his own house at night in an area known for burglaries and trespasses. He said the house was his, and the door was ajar. The officers acted reasonably by going to the open door and calling out for anyone inside. They pushed the door open and saw lit candles. It was reasonable to enter to extinguish them because of the risk of fire if left unattended too long. Cocaine was in plain view, and the entry was reasonable under all the circumstances. State v. Washington, 2012 La. LEXIS 3083 (La. November 16, 2012).*

Use of a PBT to determine a minor in possession case was waived where not presented to the trial court. In re J.J.M., 2012 Ohio 5605, 2012 Ohio App. LEXIS 4844 (7th Dist. December 3, 2012).*

The evidence supported the trial court’s finding that defendant consented to a search of her person for drugs during a stop. City of Ashland v. Zehner, 2012 Ohio 5545, 2012 Ohio App. LEXIS 4826 (5th Dist. November 29, 2012).* Same; search of a house. State v. Jackson, 2012 Ohio 5548, 2012 Ohio App. LEXIS 4827 (5th Dist. November 29, 2012).*

Officers failed to articulate a factual basis for stopping defendant for an obscured license plate number or obstructed windshield. As to the former, the dispatch tape has the officer reading the license plate number off before the stop. United States v. Lozoya-Izaguirre, 2012 U.S. Dist. LEXIS 170816 (S.D. Tex. November 30, 2012).*

The defendant is allowed to supplement his motion to suppress to preserve additional grounds for appeal, since it doesn’t require an additional hearing. These matters were discussed at the suppression hearing. United States v. Rodriguez, 2012 U.S. Dist. LEXIS 170879 (D. N.M. November 30, 2012).*

Drugs and guns found during a protective sweep were validly found. The court finds as a fact that the officers did not search before the search warrant arrived. United States v. Hammer, 2012 U.S. Dist. LEXIS 171220 (W.D. Tenn. October 24, 2012).*

A damaged package in a mail sorting center obviously contained marijuana, so the USPS Postal Inspection Service got a search warrant and opened it, finding marijuana. A controlled delivery was arranged. The package went from a house to a car, and the car was stopped. The brief detention of the package to get a search warrant was valid under Van Leeuwen, even though it went over a weekend. This defendant’s challenge of the stop of the car was without standing. United States v. Hayes, 2012 U.S. Dist. LEXIS 170915 (W.D. Pa. December 3, 2012).*

Statement at guilty plea that defense counsel did everything requested (“Boyd’s solemn pronouncement made under oath at his guilty plea hearing-that Evatt had done everything that he had asked her to do for him-forecloses any argument at this time that Evatt failed to respond to Boyd’s requests.”) precluded an IAC claim for not appealing a suppression motion that was denied. United States v. Boyd, 2012 U.S. Dist. LEXIS 171123 (D. S.C. December 3, 2012).*

Defendant’s stop was based on specific and detailed information from a CI that heroin was being carried in the air vent of defendant’s car. The conflicting information given after the stop added to it. One defendant conceded no standing in the car as a passenger. United States v. Genao, 2012 U.S. Dist. LEXIS 170941 (D. Me. December 3, 2012).*

NYT: Border Searches Face New Challenges in Digital Age by Susan Stellin:

The government has historically had broad power to search travelers and their property at the border. But that prerogative is being challenged as more people travel with extensive personal and business information on devices that would typically require a warrant to examine.

Several court cases seek to limit the ability of border agents to search, copy and even seize travelers’ laptops, cameras and phones without suspicion of illegal activity.

“What we are asking is for a court to rule that the government must have a good reason to believe that someone has engaged in wrongdoing before it is allowed to go through their electronic devices,” said Catherine Crump, a lawyer for the American Civil Liberties Union who is representing plaintiffs in two lawsuits challenging digital border searches.

By the time the search of defendant’s vehicle occurred, he was too far away from it to make it a valid search incident. The search, however, was valid under the automobile exception. United States v. Polly, 630 F.3d 991 (10th Cir. 2011).*

The defendant did not fail in his burden of proof of showing a basis for pursuing his suppression motion when the government admitted that a warrantless search occurred, so it would have the burden of production. Therefore, a hearing is scheduled. United States v. Bourassa, 2010 U.S. Dist. LEXIS 139780 (N.D. N.Y. December 14, 2010).*

Defendant passenger asserted no possessory interest in the car or its contents, so he lacked standing. State v. Mackey, 209 N.C. App. 116, 708 S.E.2d 719 (2011).*

Violation of state jurisdictional law and federal policy re customs officers and state law was irrelevant under the Fourth Amendment. United States v. Wilson, 699 F.3d 235 (2d Cir. 2012):

The district court concluded that the vehicle stop violated the Fourth Amendment because the officers acted without valid law enforcement authority, having stopped the vehicle in breach of jurisdictional boundaries set by state law and without having obtained prior authorization to exercise customs authority as required by federal policy governing designated customs officers. On appeal, the government does not dispute that the officers stopped Wilson in violation of state law and federal policy but argues that neither breach violates the Fourth Amendment. We hold that the violation of the federal policy governing designated customs officers did not violate the Fourth Amendment, and that the stop and subsequent search comported with the Fourth Amendment because they were justified by probable cause.

Here, officers were surveilling an area known for its drug trafficking, and they saw what was likely a drug deal going down. The fact that it could have also been a legitimate transaction had to be considered with the place. It turned out that this was a gun sale, not a drug deal, but that was of “no constitutional significance.” United States v. Rabbia, 699 F.3d 85 (1st Cir. 2012):

Although the behavior in question also could have been consistent with legitimate commercial activity, the circumstances “reasonably supported a more sinister explanation.” Brake, 666 F.3d at 805; see also United States v. Stanley, 915 F.2d 54, 57 (1st Cir. 1990) (“Under Terry, the test is whether the circumstances give rise to a reasonable suspicion of criminal activity, not whether the defendant’s actions are subject to no reasonable innocent explanation.”); cf. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (“Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.”).

Here, those circumstances included Rabbia’s presence late at night in an area known to be a hotbed of drug activity. On its own, of course, the character of the location where a stop occurs “is insufficient to create reasonable suspicion,” United States v. Am, 564 F.3d 25, 30 (1st Cir. 2009), and we do not suggest that residents of poorer urban neighborhoods, where crime typically is more prevalent than in nearby suburban communities, may be detained on suspicion of criminal activity simply because of where they live. See United States v. Brown, 334 F.3d 1161, 1165, 357 U.S. App. D.C. 339 (D.C. Cir. 2003) (stating that “an individual’s presence in [a certain neighborhood], ‘standing alone, is not enough to support reasonable, particularized suspicion that the person is committing a crime'” (quoting Wardlow, 528 U.S. at 124)). However, “officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” Wardlow, 528 U.S. at 124. Accordingly, Rabbia’s presence at 11:00 p.m. in a neighborhood with a high incidence of drug crimes is a relevant consideration supporting the reasonableness of the detectives’ suspicion that he was involved in a drug deal. See id.; Am, 564 F.3d at 30 (noting that location “is clearly a consideration that a police officer may use to decide to make a Terry stop” (quoting United States v. Kimball, 25 F.3d 1, 7 (1st Cir. 1994) (internal quotation marks omitted)).

It is of no constitutional significance that, as it turned out, Rabbia was involved in an illicit gun sale, not a drug deal. …

The placement of a GPS on defendant’s vehicle was authorized by binding precedent at the time, so Jones being decided after the fact requires Davis’s good faith exception be invoked. United States v. Leon, 856 F. Supp. 2d 1188 (D. Haw. 2012):

The United States now concedes that Jones renders the placement and subsequent use of the GPS device unconstitutional. And so, the sole remaining issue in this case is whether the exclusionary rule applies, focusing on whether the agents acted with objective reasonable reliance on then-existing precedent permitting the attachment and subsequent use of a GPS tracking device. Based on the following, the court agrees with the Government that the exclusionary rule does not apply.

…

Unlike the placement of a GPS tracking device on the exterior of a vehicle in an area where a defendant has no legitimate expectation of privacy, neither Supreme Court nor Ninth Circuit binding precedent [United States v. McIver, 186 F.3d 1119 (9th Cir. 1999)] in 2009 authorized the agents to continuously monitor the location of the vehicle in public places for a prolonged period of time. Davis therefore is not directly controlling on this issue. Instead, the court must determine whether the agents exhibited “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” or whether they acted “with an objectively reasonable good-faith belief that their conduct [was] lawful.” Davis, 131 S. Ct. at 2427. And after examining precedent as of 2009, the court finds that the agents’ conduct in the use of the GPS tracking device was objectively reasonable.

Defendant’s nervousness and signs of bruxism (grinding of teeth) that he was a methamphetamine user was not justification for a search of the car for evidence he was in possession at that time. State v. Farrar, 2012 Ore. App. LEXIS 1126 (September 12, 2012).*

The fact that defendant’s roommate had displayed suicidal behavior before being handcuffed outside did not justify an emergency aid entry into the apartment under the Oregon Constitution because the officer had no specific information that the roommate had hurt someone or that defendant was injured or in some kind of danger. The illegal entry into defendant’s apartment by reaching in and knocking on his bedroom door was causally connected to defendant’s consent to search because the officer was able to contact defendant and seek consent only by effecting the warrantless entry. State v. Lorenzo, 252 Ore. App. 256, 287 P.3d 1124 (2012).*

After-the-fact DL roadblock empirical data was good enough to support the roadblock under Brown and Sitz. Each stop lasted under a minute. Here, defendant had methamphetamine in plain view when stopped. State v. Vickery, 399 S.C. 507, 732 S.E.2d 218 (App. 2012):

The purpose of the empirical data on the effectiveness is to be able to balance the effectiveness of the checkpoint with the other two prongs set forth in Brown, (1) the gravity of the public interest served by the seizure and (3) the severity of the interference with individual liberty. Here, the point of the checkpoint was to prevent traffic offenses and people driving without a license. This serves the public interest in that traffic violations and people driving without a license can cause injury to others. The severity with individual liberty was low in that the stops were marked so drivers could anticipate it and each stop lasted under a minute, if there was no violation. Weighing those two factors with the data provided as to the second factor, effectiveness, the license checkpoint did not violate the Fourth Amendment.

An arrest for trespass at a housing project did not justify a search incident and seizure of the bicycle the defendant was riding. It wasn’t an offense for which there would be evidence. Commonwealth v. Holloway, 81 Mass. App. Ct. 910, 964 N.E.2d 996 (2012).

Defendant was stopped for suspicion of DUI and his car was searched without a warrant in violation of the state constitution. While the officer did all that he normally could, there is no good faith exception in Washington, and the search should have been suppressed. State v. Tamblyn,167 Wn. App. 332, 273 P.3d 459 (2012).*

In an appeal dismissed for lack of a dispositive question, the court added: “Defendant has failed to cite controlling authority, and we have found none, to support his assertion that ‘proof of actual attempts by law enforcement officers to obtain a lawful warrant must be placed on the record before the court may find that exigent circumstances exist.’” State v. Lands, 377 S.W.3d 678 (Tenn. Crim. App. 2012).

Consent during immigration stop as an interstate bus was boarding was valid; here granted within 30 seconds. Subjective intent irrelevant. United States v. Castille, 478 Fed. Appx. 868 (5th Cir. 2012)*:

Because the permissible duration of an immigration checkpoint stop includes the time necessary to inquire about citizenship status, request documentation, and request consent to extend the detention, the 30-second stop of each defendant in this case, during which Pacheco asked each defendant about his citizenship status and for consent to search, “lasted no longer than necessary to fulfill its immigration-related purpose.” See Machuca-Barrera, 261 F.3d at 429, 435; see also United States v. Jaime, 473 F.3d 178, 185-86 (5th Cir. 2006). The scope and duration of the immigration checkpoint stop remained valid even though Agent Pacheco had concluded that both Lewis and Castille were United States citizens before he asked for consent to search. See Jaime, 473 F.3d at 185. Furthermore, because the scope and duration of the immigration checkpoint stop were permissible, we will not inquire into Agent Pacheco’s motivation in asking for consent to search. See Machuca-Barrera, 261 F.3d at 432-34. Finally, because Agent Pacheco requested consent to search during the course of his immigration inspection of the passengers on the bus, our decision in Portillo-Aguirre is inapplicable here. See Jaime, 473 F.3d at 185-88.

Defendant’s patdown was justified, and something was shoved into defendant’s boot which justified the officer feeling it, too, and it was drugs by plain feel. State v. Hall, 2012 Ohio 4155, 2012 Ohio App. LEXIS 3658 (8th Cir. September 13, 2012).*

Defendant matched the description of a person flashing a gun. When officers saw defendant, they didn’t see a gun. When finally stopped, defendant had no gun, but they retraced his steps finding the gun. Defendant’s unprovoked flight was a factor. Commonwealth v. Walls, 2012 PA Super 197, 53 A.3d 889 (2012).* [Opinion mentions but doesn’t rely on the fact the gun was discarded in flight and not during a stop.]

Defendant’s patdown was justified by his matching the description of one of two men trying to break into apartments in the 911 caller victim’s building. Commonwealth v. Guess, 2012 PA Super 196, 53 A.3d 895 (2012).*

The record supports reasonable suspicion for continuing the stop. While prior cases say the stop was complete at the time the warning was written, if there was reasonable suspicion, it could be extended for 15 minutes. Menne v. State, 2012 Ark. 37:

Two issues confront this court in the instant case. The first is whether the purpose of the traffic stop was over at the time Trooper Roark requested Menne’s consent to search the vehicle. The second issue is whether Roark developed a reasonable suspicion during the course of the traffic stop that was a sufficient basis to detain Menne further. The parties agree that at the time Roark requested a consent to search, he had not given Menne the warning citation for speeding. According to Roark’s testimony, he had not yet returned all of Menne’s documents to her. Our case law suggests that a stop is not complete until the warning citation and other documents are delivered back to the driver. See Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007) (holding that it was permissible for a police officer to ask for consent to search the vehicle when the officer had determined that he would issue a warning ticket but had not yet returned the driver’s identification papers or issued that ticket); see also Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004) (noting that the legitimate purpose of the traffic stop ended after the officer handed back the driver’s license and registration along with a warning ticket). Countering that, however, is Menne’s assertion that the warning citation was not provided to her by Roark because he was waiting for the K-9 unit to begin the dog sniff. Because we conclude that Roark had reasonable suspicion to detain Menne, we need not resolve the first issue.

Reversing the court of appeals, posted here.

Inventory policy that allows the vehicle to go with somebody “immediately available,” not otherwise defined, does not require the police to allow somebody to be called and the police wait for that person to show up. The person essentially has to be there already. If the inventory is conducted in “good faith,” that’s enough. United States v. Reyes-Vencomo, 866 F. Supp. 2d 1304 (D. N.M. 2012):

The officers initiated the search in compliance with standardized police procedures and the requirement that the officers make a post-search notation regarding the decision to search adds little to the protections that the Fourth Amendment and Supreme Court precedent seeks to impose. The Fourth Amendment is satisfied so long as an officer conducts an inventory search in good faith. See United States v. Battle, 370 F.App’x at 430 (citing Colorado v. Bertine, 479 U.S. at 374). Holfelder and Ortega conducted an orderly inventory search, documenting and photographing the items in the vehicle as they went, and were not “general[ly] rummaging in order to discover incriminating evidence.” United States v. Martinez, 512 F.3d at 1274. Holfelder explained that he understood the policy’s purpose to be to protect the department and the driver’s property, and nothing indicates that he was acting in bad faith. See United States v. Maraga, 76 F.App’x at 228 (“An impoundment must either be supported by probable cause, or be consistent with the police role as ‘caretaker’ of the streets and completely unrelated to an ongoing criminal investigation.”); United States v. Lugo, 978 F.2d at 636 (“When the police acquire temporary custody of a vehicle, a warrantless inventory search of the vehicle does not offend Fourth Amendment principles so long as the search is made pursuant to ‘standard police procedures’ and for the purpose of ‘protecting the car and its contents.'”). Failing to make a notation in the police report regarding the tow decision was a minor deviation from procedure, and an understandable one given the circumstances, and does not render the inventory search invalid.

[I had to go read these cases on good faith, and both appear to just be throw-away lines as to what the government’s burden of proof is:

Battle: “Rather, he acted in good faith as he undertook to identify, secure and protect valuable property.”

Bertine: “We conclude that here, as in Lafayette, reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.”

So, don’t see there being a “good faith exception” to inventory searches. Good faith inventory and not a rummaging is something that the government has to prove in every case.]

14-month-old information in a child pornography case is not stale. More importantly, it seems that computer forensics makes staleness almost irrelevant: “the age of the information supporting a warrant is increasingly irrelevant when the object searched is stored on a computer.” United States v. Johnson, 865 F. Supp. 2d 702 (D. Md. 2012)

Additionally, the ability of forensic examiners to recover files from a computer—even those deleted by a user—impacts a court’s staleness analysis. Since evidence on a computer is recoverable months or years after it has been downloaded, deleted, or viewed; the age of the information supporting a warrant is increasingly irrelevant when the object searched is stored on a computer. See, e.g., Gourde, 440 F.3d at 1071 (“Having paid for multi-month access to a child pornography site, Gourde was also stuck with the near certainty that his computer would contain evidence of a crime had he received or downloaded images in violation of § 2252. Thanks to the long memory of computers, any evidence of a crime was almost certainly still on his computer, even if he had tried to delete the images. FBI computer experts, cited in the affidavit, stated that ‘even if … graphic image files [] have been deleted … these files can easily be restored.’ In other words, his computer would contain at least the digital footprint of the images.”); United States v. Toups, No. 2:06-cr-112-MEF, 2007 WL 433562, at *4 (M.D. Ala. February 6, 2007) (“Further bolstering the conclusion that the staleness calculation is unique when it comes to cases of Internet child pornography is the images and videos stored on a computer are not easily eliminated from a computer’s hard drive. The mere deletion of a particular file does not necessarily mean that the file cannot later be retrieved.”).

Note: The court also notes that no case it could find had ever found staleness in a CP case.