Officers saw a van parked in an industrial area around noon on Sunday, and they approached because that was unusual. Defendant would not roll down the window and reached under the seat, and that justified a protective search of where he was reaching. State v. Rose, 814 N.W.2d 622 (Iowa App. 2012).*

In this circuit the good faith exception is considered first, and the affidavit for the warrant is not so lacking in probable cause that the good faith exception would not apply. United States v. Oldaker, 2012 U.S. Dist. LEXIS 25788 (N.D. W.Va. February 16, 2012).*

The CI contacted the police within the previous 48 hours to say that he saw that the defendant had a marijuana grow operation, but didn’t specify when it was that he saw it. This was stale under the state constitution, and the court refuses to apply the totality of circumstances test to this situation. State v. Lyons, 174 Wn.2d 354, 275 P.3d 314 (2012), revg State v. Lyons, 160 Wn. App. 100, 247 P.3d 797 (2011).

Defendant was stopped for a traffic violation, and the smell of marijuana came from the car when the window was opened. A drug dog went into the car and alerted on the console, producing a roach. The smell of marijuana was reasonable suspicion; the dog alert was probable cause. State v. Chinn, 94 So. 3d 838 (La. App. 5 Cir. 2012).*

A child sex abuse victim’s story that defendant supplied him with alcohol and had a camera out was sufficient to show probable cause to search for the camera to see if there were pictures on it. The police also had an allegation from 2002 of defendant in possession of naked children in pictures. United States v. Westerlund, 477 Fed. Appx. 366 (6th Cir. 2012).*

Defendant was found in North Carolina wanted for a murder in Arizona, and the SWAT team came to execute the arrest warrant. A protective sweep of the room included going under the mattress. “Searching under beds is within the ambit of a protective sweep.” There the police found the gun. State v. Manuel, 229 Ariz. 1, 624 Ariz. Adv. Rep. 4, 270 P.3d 828 (2011):

P19 The search of Manuel’s hotel room was justified under the first Buie exception. The police knew that Manuel had outstanding felony warrants and was possibly involved in a Phoenix murder. While they were completing the arrest in the hallway outside the room, D.J. came to the doorway, screaming hysterically. Officers placed her in handcuffs and removed her from the scene while other officers swept the room to determine if anyone else was inside who might pose a threat. The hotel room was immediately adjacent to the place where Manuel was arrested and D.J. was detained. Cf. United States v. Thomas, 429 F.3d 282, 287, 368 U.S. App. D.C. 285 (D.C. Cir. 2005) (upholding sweep of bedroom adjacent to living room where arrest occurred). Thus, the police could sweep the room even without reasonable suspicion that someone was inside. Cf. Fisher, 226 Ariz. at 567 ¶ 15, 250 P.3d at 1196 (invalidating sweep under second Buie exception because not supported by reasonable suspicion that others were in an apartment).

P20 Because the police were authorized under Buie to conduct a protective sweep of the room, the question becomes whether they lawfully discovered the pistol while conducting such a sweep. Buie permitted the officers to look under the hotel bed because a person could have been hiding there. See United States v. Green, 599 F.3d 360, 376 (4th Cir. 2010) (noting that “searching under beds is within the ambit of a protective sweep”). The police testified that, because of safety concerns, their usual practice is to look under a bed by lifting its mattress and box spring, and we conclude that their doing so here was within the permissible scope of a Buie sweep.

WSJ: Affair Highlights Uncertainty of Email-Privacy Laws by Ashby Jones and Joe Palazzolo:

The adultery scandal that short-circuited David Petraeus’s career also shined a light on the peculiar legal standards governing the privacy of email.

According to U.S. officials, the Federal Bureau of Investigation obtained search warrants after developing probable cause that Mr. Petraeus’s biographer, Paula Broadwell, may have sent harassing emails to Jill Kelley, who planned social events for military personnel in Tampa, Fla.

Probable cause for what? What’s the federal crime?

Question to defendant whether gun was loaded was not a Miranda violation. United States v. Ashmore, 2012 U.S. Dist. LEXIS 161613 (E.D. Tenn. October 11, 2012).

A locked box in a car that was being towed was not subject to search at first, but it was as a part of the inevitable inventory, so it could have been searched then. The prior search was thus not illegal. United States v. Ashmore, 2012 U.S. Dist. LEXIS 161612 (E.D. Tenn. October 2, 2012).*

Probable cause for the search of defendant’s car was shown, so the search was valid under the automobile exception. United States v. Boyd, 2012 U.S. Dist. LEXIS 163187 (W.D. Pa. November 15, 2012).*

Congressional Research Service:

Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, October 9, 2012 (18 pages)

Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, October 9, 2012 (162 pages)

Privacy: An Overview of the Electronic Communications Privacy Act, October 9, 2012 (91 pages)

Privacy: An Abridged Overview of the Electronic Communications Privacy Act, October 9, 2012 (11 pages)

Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions, November 9, 2012 (66 pages)

(These were added to the sidebar.)

Requesting defendant get out of the vehicle and then moving him back between vehicles was not unreasonable or excessive. Handcuffing and lying down are reasonable; so’s this. United States v. Warrick, 2012 U.S. Dist. LEXIS 162985 (W.D. N.Y. April 13, 2012):

The fact that the defendant was requested by Officer Fuller to exit the vehicle and was “pulled towards the back of the vehicle” (T2, p. 102) before the weapon in question was observed, is of no legal consequence. Officer Fuller and his fellow officers had the right to direct all of the occupants of the vehicle to exit it while they conducted their investigation and such directive was not violative of the Fourth Amendment’s proscription of unreasonable seizures. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977); Maryland v. Wilson, 579 U.S. 408, 415 (1997); … Dempsey v. Town of Brighton, 749 F. Supp. 1215 (W.D.N.Y. 1990) (officer’s decision to stop vehicle containing individual who matched description of suspect in armed bank robbery and order occupants of the vehicle to crawl out of the vehicle and lay down on the grass, and to handcuff their wrists behind their back while conducting a pat down search, was reasonable), … see also United States v. Laing, 889 F.2d 281, 285 (D.C. Cir. 1989) (“The amount of force used to carry out the stop and search must be reasonable, but may include using handcuffs or forcing the detainee to lie down to prevent flight or drawing guns where law officers reasonably believe they are necessary for their protection.”), …; United States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983) (“requiring the suspect to lie down while a frisk is performed, if reasonably necessary, does not transform a Terry stop into an arrest.”).

The actions of Officer Fuller and the other police officers were reasonable in carrying out their investigation and protecting their safety and did not violate the defendant’s Fourth Amendment “interest in remaining secure from intrusion.” United States v. Hensley, 469 U.S. 221, 226 (1985).

Defendant got out of a vehicle with a bag and set it down on the ground. He pushed it under the vehicle, but not far. The court concludes that the bag was abandoned by this action. United States v. Davis, 2012 U.S. Dist. LEXIS 162396 (D. S.C. November 14, 2012):

Two possible inferences can be drawn from Davis’s placing the bag on the ground underneath the vehicle. The first is, as Davis argues, that he was hiding the bag—unquestionably in an attempt to prevent Officer Cox from discovering its illegal contents—and that he never intended to relinquish his Fourth Amendment rights in the bag but instead intended to retrieve it later, maintaining an expectation of privacy in the bag and its contents. The second possible inference is that Davis intended to abandon and get rid of the bag, separating it from the vehicle and hoping Officer Cox would not connect it to him. Davis argues that no evidence was introduced to support the second inference, except the mere and insufficient fact that the bag was on the side of the road. However, Davis’s subjective expectation, by itself, is not dispositive of this issue. Rather, his expectation of privacy, for Fourth Amendment purposes, must be objectively reasonable.

. . .
Here, although Davis did not attempt to flee, the core facts are the same. After Officer Cox ordered the driver from the vehicle, Davis made his decision to remove the bag from the vehicle. Why he made that decision and whether he expected to later retrieve the bag are not determinative of the analysis so long as Davis’s expectations were objectively unreasonable. Much like the defendant in Jones, Davis’s ability to recover the bag depended entirely on fate—specifically the possibility that either Officer Cox or Deputy Smith would not observe him retrieving the bag in the event he was freed to leave. In light of the risk Davis faced in placing the bag under the vehicle on the side of a public highway where anyone could pick it up, any expectation of privacy Davis had, by society’s standards, was objectively unreasonable.

Therefore, the Court finds that Davis abandoned the bag and waived any Fourth Amendment rights he had in it and its contents. Because the bag was abandoned, Officer Cox and Deputy Smith did nothing unlawful in seizing and searching the bag after it was discovered. …

Defendant was on a Greyhound bus stopped at the permanent checkpoint south of Falfurrias, Texas, and she was suspected of having on a “body suit” carrying drugs. However, she was wearing Mandenform body shaping clothing. The stop became excessive and without reasonable suspicion. United States v. Diaz, 2012 U.S. Dist. LEXIS 159415 (S.D. Tex. November 7, 2012)*:

At the hearing on the motion to suppress, testimony and exhibits demonstrated that the beige piece of clothing that Defendant was wearing was not in fact a “body suit.” What Agent Cavazos saw was actually one of two articles of clothing, each with brassiere-like straps attached to material covering the torso area. According to testimony, these two camisoles, one with an attached brief and built-in brassiere, are commonly used by women as body shapers. Evidence also showed that these common articles of clothes were made by Maidenform, a popular manufacturer of women’s underwear. These styles of undergarment can be purchased at major retail stores, such as JCPenny and Walmart, and are advertised online.

. . .

Agent Cavazos relied heavily on Defendant’s undergarment as an indicator that Defendant was a body carrier. Agent Cavazos, however, testified that only a small and commonly exposed portion of this undergarment was visible at the time of the immigration inspection. In fact, he was only able to see a strip of a beige article of clothing on Defendant’s left shoulder that he believed to be made of spandex. Based on this evidence, the undergarment that Agent Cavazos saw peeking out from under Defendant’s blouse could have been any type of women’s undergarment, ranging from a brassiere to a full body suit. The commonality of such articles of clothing does not lend itself to creating individualized suspicion of wrongdoing merely by its use. And, though drugs may be stashed inside women’s underwear, if the mere use of underwear was used to justify search or seizure of an individual, agents may have free rein over half the population passing through a checkpoint. See Portillo-Aguirre, 311 F.3d at 657 (“In short, neither the bag nor its location suggested that criminal activity was afoot. If such common circumstances qualified as reasonable suspicion, then most interstate travelers would be subject to prolonged detention, for virtually any item of luggage, from a handbag to a suitcase, is capable of housing illegal narcotics.”). This undergarment, even when viewed with Defendant’s northward travel as a single, heavy-set female, does not give rise to reasonable suspicion. Defendant was not nervous and Agent Cavazos did not articulate any other suspicious facts that may be used to build sufficient justification.

There is no time limit for motions to suppress in a forfeiture case under the forfeiture rules, so they must be governed by local rule. Here, the motion should have been filed far earlier after discovery started than it did, and there is no excuse not to because the essential facts were known. United States v. $33,330.00 in United States Currency & Ten Pieces of Jewelry Valued at $27,750.00, 2012 U.S. Dist. LEXIS 159081 (N.D. Ga. September 4, 2012)*:

Rule G(8) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions provides, in pertinent part, the following:

Motion to Suppress Use of the Property as Evidence. If the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeiture of the property based on independently derived evidence.

Rule G(8)(a). As such, a motion to suppress is a specific motion allowed in civil forfeiture matters.

. . .

Assuming, without accepting, that practical considerations would have made it difficult for Claimant to depose the law enforcement officers he had identified at the beginning of the discovery period, there are still other actions Claimant could have taken to preserve the Fourth Amendment issue for review by the Court. As is often done in criminal proceedings, Claimant could have filed in a timely manner a preliminary motion to suppress and sought leave to perfect the motion upon Claimant’s receipt of all of the evidence supporting the motion. At the very least, Claimant could have stated in the Joint Preliminary Report that he intended to file a motion to suppress after conducting sufficient discovery and could have sought permission from the Court to do the same. Claimant took none of these actions. Instead, Claimant agreed to the deadlines adopted in the Court ‘s Scheduling Order and then made no mention of the Fourth Amendment issue until he filed his Motion to Suppress on November 2, 2009.

In addition to neglecting the deadline for filing the Motion to Suppress, Claimant still did not act diligently in raising the Fourth Amendment issue once he learned the information that he maintains forms the basis for the Motion to Suppress. …

Officers talking to a motorist parked in a Lexus in a high crime area to watch out was not a seizure. The officer walked around the car and saw the butt of a gun, but it turned out to be a BB gun. United States v. Mahr, 2012 U.S. Dist. LEXIS 161000 (D. Neb. October 22, 2012):

Taking the “position that a person is ‘seized’ for Fourth Amendment purposes whenever an officer interrupts what that person was otherwise doing is absurd.” United States v. Tarantola, 332 F.3d 498, 499 (8th Cir. 2003). Merely attempting to attract a person’s attention to further investigate suspected criminal behavior “does not implicate any Fourth Amendment interest, does not amount to a seizure, and thus falls outside the ambit of the Fourth Amendment.” Tarantola, 332 F.3d 499-500 (knocking on glass door of laundromat is not a seizure). More specifically, an officer’s attempt to make contact with individuals occupying a vehicle parked in a public place does not constitute a seizure. See Mabery, 686 F.3d at 596-97(citing cases) (finding no seizure where officer shined a spotlight on vehicle from the street); see also United States v. Barry, 394 F.3d 1070 (8th Cir. 2005) (finding no seizure where officer knocked on vehicle’s window as it was parked in vacant parking lot behind a mall).

The search warrant here for a computer in a child pornography case was not a general warrant, although it permitted a search of the entire computer. United States v. Morgan, 2012 U.S. Dist. LEXIS 161771 (E.D. Pa. November 13, 2012):

In this case, the search warrant for the Hatfield residence authorized the government to seize the computer hardware and software located in the residence as part of the search for evidence of criminal conduct. Such seizures were justified under the warrant because electronic evidence is the heart of this case.

The search warrant application provided extensive detail on the computer activity of Wook_inky101@yahoo.com from September through December 2011. This Yahoo account was used to engage in sexually explicit conversations, send sexually graphic images, and transmit child pornography to a person believed to be a thirteen-year-old girl in Texas. Federal agents traced this activity to Defendant’s residence. The search warrant application noted the importance of computer technology in creating, exchanging, and storing child pornography, and also explained how agents would conduct their electronic searches of any evidence seized from the residence. The application made clear that evidence of child pornography rarely, if ever, completely disappears from any computer that once housed it.

In sum, the warrant authorized the FBI to seize a wide array of electronic equipment and data to search for evidence of criminal activity that was thoroughly supported by the general characteristics of those involved in child pornography, and by the actual facts in this case. The Court therefore concludes that the search warrant for the Hatfield residence was not a general warrant and properly complied with Fourth Amendment requirements.

Still, it reads like a general warrant. It seems that the court considers the entire object to be the subject of the search without specifying the target materials. Today, that’s easy to do with computer programs seeking all image or video files by what they are, not by the name.

Defendant lived with a woman named Price at her dad’s house. The police tailed him there, arrested him for drugs, and then got permission of the dad to search the room. They asked the dad if he ever needed permission to enter the room, and he said no, so they asked him for consent. [No analysis of the relationships.] United States v. Page, 2012 U.S. Dist. LEXIS 161531 (E.D. Tenn. October 22, 2012):

To be sure, if the search of the bedroom was an incident to defendant’s arrest, it may have gone too far. But it was not an incident to defendant’s arrest. Drug Task Force Director McQueen asked permission of the owner, Mr. Price, to search the house. Additionally, he asked Price if he (Price) had to obtain permission of his daughter or defendant to enter the daughter’s bedroom. Price stated that he never asked permission, and he freely entered the bedroom when and as he wished, never asking permission of his daughter or defendant to do so. Mr. Price gave his consent to search. Based upon the representations Mr. Price made about his perceived authority over all areas of that house and Price’s consent, the officers searched Nikea Price’s bedroom, finding considerable evidence of drug trafficking therein.

Officer’s cut and paste error from one affidavit to another was enough for a Franks hearing. United States v. Rodriguez-Ramirez, 2012 U.S. Dist. LEXIS 161211 (D. Utah November 7, 2012):

The court is not convinced by the United States’ argument. The erroneous statements concerning the affiant’s surveillance of the house in Magna are sufficiently material to justify an evidentiary hearing on the validity of the warrant. While the threshold for holding a Franks hearing is a high one, the court finds that the affiant’s failure to remove this key information could constitute a reckless disregard for the truthfulness of the affidavit. The Defendants may also be able to establish that the affiant omitted information about the CS, the meeting with Chalmes, or the results of the license plate check, and that this omission was committed either deliberately or recklessly. Taken together, this evidence may establish that the search warrant was not supported by probable cause and that the search of the house in Magna was conducted in violation of the Defendants’ Fourth Amendment rights.

HuffPo: Should Republicans Blame The TSA For Their Loss? (VIDEO) by Christopher Eliott:

When Susan Verbeeck attended a rally for Republican presidential candidate Mitt Romney with her two daughters and a friend at the Virginia State Fairgrounds in Doswell, Va., earlier this month, she didn’t expect to be greeted by TSA agents.

But that’s exactly what she found blocking the entrance to the fair: a row of metal-detectors staffed by uniformed TSA agents.

“We’re accustomed to the TSA at airports when we travel,” she says. “But now it seems they are ubiquitous. I understand that the presidential candidates need security, but wasn’t the TSA originally formed for airport security?”

Well, that was the idea. But a look at TSA’s mission statement, which isn’t limited to air travel, means the agency could try to “protect” you anytime you set foot outside your home.

…

What would you do if you were assigned to screen supporters of a party that you knew presented a threat to your job security? If you answered: harass them, fail to properly screen them and indirectly allow the candidate to be heckled, then congratulations — here’s your tin foil hat and your very own copy of “The X-Files: The Complete Collector’s Edition.”

Did the TSA cost the Republicans the presidency? In such a close presidential election, anything could have swayed the electorate. But I think it’s safe to say the agency didn’t exactly help.

Jonathan Turley: Poll: One-Third of Americans Would Accept Cavity Searches By TSA:

In past columns, I have lamented how our government has not only stripped away core civil liberties from citizens, but that citizens have become increasing passive and accepting of the loss of such freedoms. A new poll conducted by Harris Interactive offers a particularly chilling measure of just how passive and accepting citizens have become to the new realities of our internal security system. The poll found almost one third of American adults would accept a “TSA body cavity search” in order to fly. Moreover a majority believes that it is reasonable to criminalize the act of disobeying any TSA agent.

The boiling frog.

Tenth Amendment Center: Will Texas Nullify Both NDAA and TSA?

The Texas legislature will take up two bills designed to protect basic civil liberties in the Lone Star State during the 2013 legislative session.

On Monday morning, Rep. David Simpson (R-Longwood) prefiled The Texas Travel Freedom Act (House Bill 80). If passed, the law would make it a criminal act to intentionally touch “the anus, breast, buttocks, or sexual organ of the other person, including touching through clothing,” without probable cause in the process of determining whether to grant someone access to a public venue or means of public transportation.

…

The Texas legislature will also consider a bill that would block any attempt to indefinitely detain people in Texas under sections of the National Defense Authorization Act. Rep. Lyle Larson (R-San Antonio) prefiled House Bill 149, which declares:

It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. No. 112-81). Any act to enforce or attempt to enforce those laws is in violation of this subchapter.

The alleged defective appointment of a judge to replace one who died cannot be attacked in a criminal proceeding challenging a search warrant the judge issued. The general rule is that the legality of the judge’s appointment must be tested in quo warranto and not by collateral attack in a criminal proceeding. State v. Hill, 2012 Ohio 5210, 2012 Ohio App. LEXIS 4556 (2d Dist. November 9, 2012):

[*P21] Defendant relies on State v. Williams, which held that a warrant is void ab initio if not signed by a judge prior to the search. In Williams, the warrant bore no signature at all. In the present case, the warrant bore the signature of a person purporting to be a judge. The warrant did not suffer from the facial defect in Williams, which rendered the warrant void and therefore precluded application of the “good faith” exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. Spaw, 18 Ohio App.3d 77, 480 N.E.2d 1138 (1984).

[*P22] The power and authority of a judicial officer and the validity of her office cannot be collaterally attacked in a criminal proceeding. Those challenges must instead be made in an original action in quo warranto to determine whether the judge had a valid title to her office, in which proceeding the judge herself would be made a party defendant and have an opportunity to appear and make a defense thereto. Stiess v. State, 103 Ohio St. 33, 41 (1921). That challenge is not reviewable on appeal from an adverse judgment rendered in the criminal proceeding. State ex rel. Stowell v. Lovinger, 6 Ohio St.3d 21, 450 N.E.2d 1176 (1983).

Officers got a valid warrant for defendant’s car for evidence linked to a shooting. In the car they found a digital camera, and they looked at pictures. Then they got a warrant for the camera, opining that there might be evidence on the camera. There was no showing of any reason to believe evidence would be found on the camera. The good faith exception was also inapplicable. United States v. Alkhaldi, 2012 U.S. Dist. LEXIS 158870 (E.D. Ark. September 18, 2012), adopted 2012 U.S. Dist. LEXIS 158874 (E.D. Ark. November 6, 2012):

In this instance, the LRPD detective’s declaration in the affidavit that “[i]t is believed that this camera is now concealing possible evidence of a crime” could not have been made without his premature and undisclosed search of the camera. Without that initial unauthorized search of the camera, his truthful representation to the issuing judicial officer would have been consistent with his testimony at the suppression hearing, that being, he did not suspect that there would be evidence in the camera until he looked in it. Under the state of facts, as the detective knew them to be, his belief in the existence of probable cause was entirely unreasonable.

The motion to suppress the evidence obtained from the execution of the car warrant should be denied. See Document 25. The motion to suppress the evidence obtained from the execution of the camera warrant, though, should be granted. See Document 16. Alkhaldi’s supplemental motion to suppress should be denied as moot. See Document 17.

[Disclaimer: My case. Government didn’t object to R&R, which was adopted yesterday. JT Tuesday.]

The Supreme Court granted cert in Maryland v. King today. Chief Justice Roberts had previously granted Maryland a stay pending decision on cert.

Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.