ABAJ: Litigation News: Eight Google Skills All Litigators Should Master by Don MacLeod:

Hiding in plain sight are some tools that can quickly improve the quality of your Google search results, help you save time, and produce custom-tailored results that simple keyword searching can’t deliver on its own. These are the techniques no litigator should do without.

Defendant was arrested on a fast food restaurant parking lot, and it was appropriate for the officers to tow and inventory the vehicle under Ninth Circuit precedent. Also, defendant’s sister was called about getting the car, but she wouldn’t come until the following day. United States v. Sequeira, 2012 U.S. Dist. LEXIS 158636 (D. Ariz. September 28, 2012).*

Defendant’s consent was voluntary; defendant told the officers where the firearms were and provided the key to get in. United States v. Yonts, 2012 U.S. Dist. LEXIS 158911 (E.D. Ky. November 6, 2012).*

The security sweep of defendant’s garage was proper. The officers properly looked behind things for persons, and there they found hidden marijuana. This was called a “second” sweep by one of the officers, but the court finds that it was a continuation of the initial sweep. United States v. Sinclair, 2012 U.S. Dist. LEXIS 158445 (W.D. N.Y. November 2, 2012).*

Officers had information that child pornography had been received at defendant’s house via the Internet, so they did a knock-and-talk. Defendant was then attempting to delete files to the recycle bin, so the officers decided to take the computer without a warrant for safekeeping. While the files were not being permanently deleted from the computer, that wasn’t determinative. United States v. Ma, 2012 U.S. Dist. LEXIS 158775 (D. Mont. November 6, 2012):

The court finds that the agents’ decision to take the computer with them did not violate the Fourth Amendment. Whether or not Ma’s actions could have permanently destroyed the evidence of child pornography is not the question here. Ma’s actions, taken immediately after he was informed that the agents were looking for evidence of possession of child pornography, made it reasonable for the agents to believe he was attempting to destroy evidence, regardless of the language in which the files were captioned. Ma points to no authority stating that agents in the field are required to have a sophisticated understanding of computer technology or absolute certainty about whether Ma’s actions were reversible. Furthermore, the court notes that once the computer was seized by law enforcement, nothing was done to access its files until the search warrant was issued. This action adds to the reasonableness of the agents’ actions, a critical inquiry under the Fourth Amendment. See Kentucky v. King, __ U.S. __, 131 S.Ct. 1849, 1856 (2011) (“The ultimate touchstone of the Fourth Amendment is ‘reasonableness'”) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

The New American: Will Police Drones Destroy the Fourth Amendment? by Joe Wolverton, II:

Although the president’s use of drones to execute the war on terror and those he assumes are associated with it has so far occurred only outside the United States, soon drones will slice through the domestic skies, as well. While the sight of drones over U.S. cities and towns is rare now, the Federal Aviation Administration (FAA) predicts that by 2020, 30,000 of these unmanned aerial vehicles (UAV) will be patrolling American airspace.

Scores of these UAVs will be deployed by state and local law enforcement, adding to the many that will be sent airborne by the federal government.

Reason.com: Why a Sensitive Dog Is an Evidence-Impaired Cop’s Best Friend by Jacob Sullum:

On Monday I noted the 2011 Chicago Tribune analysis of data from suburban police departments that found vehicle searches justified by a dog’s alert failed to turn up drugs or drug paraphernalia 56 percent of the time. A 2006 study by the New South Wales Ombudsman in Australia looked at more than 10,000 searches triggered by dog alerts and discovered that 74 percent of them found no illegal drugs. In other words, as the National Association of Criminal Defense Lawyers (NACDL) and the American Civil Liberties Union (ACLU) note in their Harris brief, “any given alert was almost three times more likely to be a false alert than an accurate one.” More-recent data from New South Wales indicate an even higher error rate: 80 percent.

The NACDL and the ACLU also describe a 1984 operation in which Florida state police stopped about 1,330 vehicles at roadblocks and walked dogs around them. If one dog alerted, another was brought in, and vehicles were searched only if both dogs indicated the presence of illegal drugs. That happened 28 times, but those searches yielded just one drug arrest. “Despite the requirement that two dogs alert before a search,” the NACDL/ACLU brief notes, “police found illegal narcotics sufficient to justify an arrest in only 4% of cars searched,” meaning “the likelihood of a false alert was approximately 96%.” With impressive chutzpah, Florida’s lawyers claim “this example at most shows a ‘false’ alert rate under 2%.” You see what they did there? Twenty-seven false alerts divided by 1,330 cars equals 2 percent. But the relevant question is not the percentage of vehicle stops that resulted in a false alert; it is the percentage of alerts (in this case, double alerts) that turned out to be false. For purposes of probable cause, we want to know the likelihood that a search triggered by a dog’s alert will find drugs. In this case it was 4 percent—not, as Florida’s tricky calculation implies, 98 percent.

Plaintiff’s refusal to answer questions as a witness at the scene of a hit-and-run was not clearly an obstruction of an officer under Colorado law, so his arrest was without probable cause, and any reasonable officer should have known it. Kaufman v. Higgs, 11-1390 (10th Cir. October 23, 2012), revg Kaufman v. Higgs, 2011 U.S. Dist. LEXIS 83609 (D. Colo. July 29, 2011) (posted here):

… Refusal to answer questions during a consensual encounter, expressed by silence and assertion of “privilege,” is not an “obstacle” as the term is used in the statute.

. . .

An “obstacle” is “a thing that blocks one’s way or prevents or hinders progress.” Oxford New English Dictionary 1211 (3d ed.). Silence accompanied by an explanation of the basis for that silence does not obstruct anything. In fact, it is hardly “a thing” at all. It is a null action; it simply maintains the status quo. Mr. Kaufman’s silence here did nothing to the police’s investigative efforts; it allowed them to continue unimpeded. They were able to continue putting questions to Mr. Kaufman, they could have sought out other members of Mr. Kaufman’s family for questioning, and they could have even sought to compel Mr. Kaufman to answer their inquiries with a grand jury subpoena.

. . .

C. Was there “arguable probable cause” for the arrest?

No reasonable officer could have construed Colorado’s obstruction statute as criminalizing the choice to remain silent when faced with questions the answers to which might be incriminating. Even if the text of the obstruction statute were ambiguous (and it is not), the Colorado Supreme Court foreclosed the Defendants’ interpretation with its opinion in Dempsey.

h/t: a reader

Officers with a reasonable belief that defendant was a person named in an arrest warrant gained entry on the warrant. Once inside, they determined that he was not the person they were looking for. He consented, however, to a sweep of the house to look for the person they wanted, and a plain view of 100 lbs of marijuana was justified. State v. Barnes, 2008 Ohio 5602, 2008 Ohio App. LEXIS 4716 (8th Dist. October 30, 2008):

[*P15] More importantly, even if Barnes had not consented, the deputies still would have been allowed to look inside the house for Scott because they had an active arrest warrant for Scott and a reasonable belief that he lived in the house. Police, without a search warrant, consent, or exigent circumstances, are allowed to enter the residence of a person with an active arrest warrant to execute said warrant. See Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639. In State v. Tolbert (1996), 116 Ohio App.3d 86, 686 N.E.2d 1375, we determined that the police may enter a dwelling in order to arrest a person named in an arrest warrant who is not the homeowner if there is reason to believe that the person listed in the warrant is in the home. Id. (adopting the holding in United States v. Underwood (C.A.9 1983), 717 F.2d 482).

Officer had reasonable suspicion for a stop of a car seen stopped in a high crime area along side another car so they could talk to each other [like cops do] and “eyeballed” the police car driving by. Once stopped, marijuana was seen in plain view in the back seat. State v. Douglas, 2008 Ohio 5568, 2008 Ohio App. LEXIS 4702 (9th Dist. October 29, 2008).*

Spousal testimonial privilege did not bar the defendant’s wife from being the CI in a search warrant affidavit. State v. Fairfield, 2012 Ohio 5060, 2012 Ohio App. LEXIS 4428 (8th Dist. November 1, 2012):

[*P15] At all times in the affidavit, any reference to the CRI is to Fairfield’s wife. Fairfield contends that his CRI-wife could not provide information in support of the warrant because it violated the spousal privilege in violation of R.C. 2945.42, concerning the competency of a witness, and R.C. 2317.02, regarding privileged communications. Both statutes state that a husband and CRI-wife “shall not testify” concerning communications made to each other or regarding an act done in the presence of the other, during coverture, unless the communication or act was done in the known presence of a third person.

[*P16] The court in State v. Jaschik, 85 Ohio App.3d 589, 620 N.E.2d 883 (11th Dist.1993), addressed an identical situation. In Jaschik, the CRI-wife told police that her husband abused drugs and had weapons at the home. Based on the information she provided, the police obtained a search warrant for the marital home where weapons were found. The court in Jaschik concluded that the prohibition against “testifying” against a spouse applied to trials and not search warrants because warrants are used to aid in the investigation process and are ancillary to the criminal proceedings. We agree. Although the CRI-wife would not be permitted to testify at trial, she could provide information in support of the investigation.

The fact the U.S. Marshals transferred plaintiff from one jail to another in pretrial detention did not state a Fourth Amendment claim for an unreasonable seizure without alleging a lot more not even present. Vega v. United States, 2012 U.S. Dist. LEXIS 157102 (W.D. Wash. November 1, 2012).*

Defense counsel was not ineffective for not moving to suppress the stop in this case because there was at least a technical violation of the traffic code, and that justified the stop. “In light of the holding of Mosley, the stop was lawful because a traffic infraction can be used as a pretext for investigation into the drug activity. Mosley, 454 F.3d at 252. … ‘[C]ounsel cannot be deemed ineffective for failing to raise a meritless claim.’ …” Ferguson v. United States, 2012 U.S. Dist. LEXIS 157341 (W.D. Pa. November 2, 2012).*

That defendant had pictures of a naked child not his own was PC for child pornography at least under Pennslyvania law. The fact a parent might have an innocent picture of his or her own child is different. United States v. Kofalt, 2012 U.S. Dist. LEXIS 157349 (W.D. Pa. November 2, 2012).*

Knock-and-talk entries could still lead to an entry on exigent circumstances. The failure of the defense to mention exigency in the motions below means that the certified question for appeal might not be dispositive of the case. Therefore, appeal dismissed under state law. State v. Ward, 2012 Tenn. Crim. App. LEXIS 907 (November 2, 2012).*

The same for State v. Finney, 2012 Tenn. Crim. App. LEXIS 908 (October 29, 2012):

In the instant appeal, the defendant’s certified question is overbroad and non-specific. The defendant challenges the validity of an alleged search and an ensuing seizure but does not state the reasons she relied upon in the trial court. From our review of the defendant’s brief and relevant transcripts we discover that the defendant argued in the trial court that: (1) the State did not have the authority to search the defendant’s vehicle simply because it had entered State property, and (2) the consent given by the defendant to the search of her purse was involuntary because no reasonable person [*9] would have felt free to leave or to decline such consent after having been ordered to exit the vehicle. These claims are not frivolous on their face.

However, the certified question reserved by the defendant in the trial court, as phrased, does not include the “reasons relied upon by defendant in the trial court at the suppression hearing” as required by Preston. …

Officers had objectively reasonable evidence that somebody had been shot to justify their entry under exigent circumstances. United States v. McCabe, 2012 U.S. Dist. LEXIS 158309 (D. Ariz. November 2, 2012).*

Defendant’s trash was searched, and he claimed officers entered the curtilage to conduct the search. Based on the evidence at the hearing, the court finds that the trash container searched was not on the curtilage at the time of the search; it was at the street. United States v. Knox, 2012 U.S. Dist. LEXIS 158129 (N.D. Tex. November 5, 2012).*

In a conspiracy to violate the Clean Water Act conviction, the defendant is denied bail pending appeal because none of the issues are sufficiently strong to suggest reversal on appeal, including the search question of open fields. “Because the Court does not believe either Fourth Amendment claim presents a ‘close question or one that could go either way,’ Pollard, 778 F.2d at 1182, the Court concludes the first ground for staying on bond pending appeal must fail.” United States v. Fillers, 2012 U.S. Dist. LEXIS 158269 (E.D. Tenn. November 5, 2012).*

Tasering defendant in the back on reasonable suspicion converted the stop into an arrest requiring probable cause, which there wasn’t. The search of defendant’s person was suppressed. Reid v. State, 428 Md. 289, 51 A.3d 597 (2012):

Application of the principles from Terry and in the de facto arrest cases leads us, with respect to the circumstances in the present case, to determine that a person shot in the back with two metal darts, as was Reid, would reasonably believe that he or she was not free to leave the encounter, especially when, as the trial judge found, a medical technician would have to have removed the prongs. These circumstances are very similar to those in Bailey, Grier, and Dixon, in that Reid was subjected to the custody and control of the officer detaining him by the use of physical force. While we recognize that the suspects in Bailey, Grier, and Dixon were not believed to be armed and that Reid was, such belief does not convert a de facto arrest to a Terry stop found in In re David S. and Lee, because the levels of intrusion and control involved in Reid’s detention are unquestionably greater than those used to detain either Lee or David S. The use of a Taser in dart mode penetrates the body for an indefinite time period, differentiating it from a “hard take down,” the use of handcuffs, and tackling.9 A reasonable person would not feel free, nor even be able, to go under these circumstances: Reid was, thus, arrested.

“This is an appeal asking that we overrule State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992), and hold that the Leon good-faith exception to the exclusionary rule applies to violations of Article I, section 17, of the Idaho Constitution. Because the State has not shown any ground for doing so, we decline to overrule that case and affirm the order of the district court suppressing evidence obtained incident to an arrest pursuant to a wrongly issued warrant.” Considering state case law, the Idaho Supreme Court adopted the exclusionary rule in State v Arregui, 44 Idaho 43, 254 P. 788 (1927), and the good faith exception was not adopted in Guzman. State v. Koivu, 152 Idaho 511, 272 P.3d 483 (2012).

Defendant’s parole condition that he submit to searches of his e-mail account was valid. Sullivan v. Bunting, 2012 Ohio 3923, 133 Ohio St. 3d 81, 975 N.E.2d 999 (2012) (per curiam).

Plaintiff was shot during a no-knock raid on his house. Factual disputes remained on whether the officer procuring the warrant made false statements in obtaining the warrant, and, thus, qualified immunity was denied. Betker v. Gomez, 692 F.3d 854 (7th Cir. 2012).*

Movant outside of a criminal case file a motion for return of money seized, but it was without jurisdiction. Brown v. United States, 692 F.3d 550 (6th Cir. 2012).*

Opening defendant’s car door to talk to him constituted a seizure because the defendant objectively would not feel free to terminate the encounter and leave. The motion to suppress was properly granted. State v. Liechty, 152 Idaho 163, 267 P.3d 1278 (App. 2011):

We first note that the instant case is unlike other cases where a driver rolls down his or her car window in response to an officer’s approach. In such cases, the encounter is consensual in nature because the level of coercion between the officer and the citizen is minimal. See Zubizareta, 122 Idaho at 827-28, 839 P.2d at 1241-42; Osborne, 121 Idaho at 524, 826 P.2d at 485. At that time, the driver has the option to decline to open the window to speak to the officer. However, when an officer approaches a vehicle and initiates questioning of a driver by opening the vehicle’s door without consent, instead of asking to speak to the person through the vehicle’s window, the level of coercion between the officer and the citizen is enhanced.

We also note that, in determining whether a seizure occurred, the district court found, similar to Fry, the officer here placed himself in a position relative to the car that prevented Liechty from driving away. As explained above, this finding was supported by substantial evidence, and whether the officer took action to block a vehicle’s exit route is an appropriate circumstance to take into account when determining whether a seizure occurred. …

The officer had reasonable suspicion for a stop, but his opening defendant’s car door and seeing heroin was an illegal search. There was no safety justification offered for opening the door. State v. Cure, 84 So. 3d 592 (4th Cir. 2011).

Assistant principal’s smelling tobacco on defendant’s breath justified a search of his car on school grounds for violation of school rules of any possession of tobacco on school grounds, including in cars. Reasonable suspicion of violation of a school rule is all that is required, not a violation of the criminal law; and, here, defendant was over 18 and legally able to otherwise possess. A marijuana pipe was found. State v. Voss, 152 Idaho 148, 267 P.3d 735 (App. 2011):

In examining the authority in [T.L.O. and Redding], we hold that the search of Voss’s vehicle was justified at its inception. Both T.L.O. and Redding indicate that the reason for the schoolyard search exception to the warrant and probable cause requirements is precisely for the swift enforcement of school policies that maintain the order and safety of the educational atmosphere. As such, the assistant principal could justify the search of Voss’s vehicle on school grounds based solely on reasonable suspicion that Voss was in possession of tobacco in violation of school policy—even if it would not otherwise constitute a crime.

In holding that a search may be justified at its inception because of reasonable suspicion the student is violating only a school rule that may or may not also constitute a crime, we find language in T.L.O. particularly persuasive. There, the Supreme Court stated that a search of a student by a school official “will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” T.L.O., 469 U.S. at 341-42 (emphasis added). Additionally, when the Supreme Court dispensed with the warrant requirement, it noted that having to obtain a warrant “before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.” Id. at 340. …

Defendant consented to search after negotiating with officers to sit without handcuffs, smoke, put away his dogs, and not have the officers ransack his house. He invoked his right to counsel, too, but that did not make the consent invalid. State v. Hatfield, 246 Ore. App. 736, 268 P.3d 654 (2011):

After defendant requested an attorney, McCarley again explained to him that, if he did not consent to a search of his residence, the officers would apply for a search warrant. Defendant “thought for a moment” and asked McCarley whether, if he gave consent, he would be permitted to sit on his couch with his handcuffs removed, put away his dogs, and smoke a cigarette; he also asked whether the officers would “tear apart his house.” McCarley agreed to defendant’s requests and told him that the officers would not ransack the house. Defendant consented to a search of his residence under those conditions.

The officer had probable cause to search the car and the containers inside it, including defendant’s backpack, after seeing in plain view a marijuana pipe in the car and noting defendant’s nervous behavior with his backpack when the officer began searching the car. State v. Smith, 152 Idaho 115, 266 P.3d 1220 (App. 2011).*

Defendant was running in a high crime area wearing baggy jeans, apparently not doing it for the exercise. This justified a stop. State v. Jimenez, 2012 Ohio 3318, 2012 Ohio App. LEXIS 2917 (12th Dist. July 23, 2012).*

The stop was justified for a traffic offense, and the officer asked about the marijuana he could smell. That did not prolong the stop. Parker v. State, 317 Ga. App. 93, 730 S.E.2d 717 (2012).*

Defendant’s running a red light was cause for a stop. While the officer was admittedly confused about a detail, he was found otherwise credible, and that’s binding. State v. Bostock, 2012 Ohio 3324, 2012 Ohio App. LEXIS 2918 (4th Dist. July 19, 2012).*

It was a valid strategic decision not to file a motion to suppress a search of defendant’s bedroom where bloody shoes were found. Defendant’s contention all along was that the shoes were not his, were the wrong size, and he had an alibi for the murder. Besides, it looks like there was no valid ground to suppress anyway. Gardner v. State, 2012 Tenn. Crim. App. LEXIS 526 (July 20, 2012).

Officers conducted an illegal protective sweep of defendant’s house before they got a search warrant. Removing what was learned from the illegal protective sweep from the search warrant affidavit still left probable cause for the search. Martinez-Vargas v. State, 730 S.E.2d 633 (Ga. App. 2012).*

The trial court did not abuse its discretion in not suppressing defendant’s arrest for “a vicious murder” without an arrest warrant. When police arrived at the residence of the defendant, they saw him doing something with a bicycle, which was the motive for the murder. Paul v. State, 971 N.E.2d 172 (Ind. App. 2012).*

Arrest of defendant and detention for contempt at direction of judge that was subject to appeal did not make the search incident or inventory invalid. People v. Guthrie, 2012 CO 59, 286 P.3d 530 (Colo. 2012).*

On the totality, defendant’s encounter with the police was not involuntary and the answer to questions and defendant’s actions were by consent. United States v. Eppenger, 2012 U.S. Dist. LEXIS 142483 (D. Nev. July 24, 2012).*

The inventory of defendant’s motorcycle was valid and followed department policy. United States v. Abram, 2012 U.S. Dist. LEXIS 142479 (W.D. Mo. March 21, 2012).*