Reliable informant who was communicating with defendant about drugs provided reasonable suspicion. State v. Dennis, 2012 Ohio 4877, 2012 Ohio App. LEXIS 4278 (12th Dist. October 22, 2012).*

Driving too slow and not staying in one’s lane justified a stop. State v. Roetzel, 2012 Ohio 4898, 2012 Ohio App. LEXIS 4289 (5th Dist. October 15, 2012).*

Crossing the fog line justified a stop. That didn’t show the fact the vehicle was not being driven unsafely. State v. Brandenburg, 2012 Ohio 4926, 2012 Ohio App. LEXIS 4308 (4th Dist. October 16, 2012).*

SeattlePI.com: Irate crowd greets Seattle Police drone plan / Aircraft with cameras get harsh reaction in Central District by Casey McNerthney:

Seattle police may use remote control drones during future investigations, and a crowd that gathered Thursday night in the Central District was furious about it.

The 6 p.m. meeting at the Garfield Community Center had far more shouting and swearing than civil discourse. Protesters launched insults complaining about invasions of privacy, yelled that the drones were tools of capitalism and political suppression, called officers murderers, and demanded charges be brought against them.

Odor of burning marijuana coming from a house is enough to justify a search warrant for the house for the marijuana, even in the face of a claim that only a small amount of marijuana would be found. United States v. Kilgore, 2012 U.S. Dist. LEXIS 154148 (N.D. Ga. September 13, 2012):

Kilgore contends that the information provided by Rawlings and the odor of burnt marijuana did not establish probable cause to search his residence, asserting that “it only tends to indicate the recent presence of a small amount of marijuana.” [Doc. 50 at 4-5]. Kilgore’s arguments, however, ignore the fact that the basis for the warrant for which probable cause was established was possession under O.C.G.A. § 16-13-30(a), see (Gov. Ex. 1), and courts have routinely found probable cause existed to search a residence based on a marijuana odor detected by law enforcement officers, see United States v. Yarbrough, 272 F. App’x 438, 443 (6th Cir. 2007) (per curiam) (unpublished) (citations omitted) (“[A]n officer’s detection of the smell of marijuana in a home may by itself establish probable cause,” and “[w]hen the smell of marijuana is coupled with [a] [ ] tip of drug activity, probable cause exists for a search warrant.”); United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (citation omitted) (“There is no doubt that the agent’s suspicions rose to the level of probable cause when, as the door stood open, he detected what he knew from his law enforcement experience to be the odor of marijuana.”) ; United States v. Harwell, 426 F. Supp. 2d 1189, 1196 (D. Kan. 2006) (citation omitted) (“The odor of burning marijuana emanating from the open front door of a single home would lead a reasonable officer to believe that marijuana was probably present in the residence.”); see also Johnson v. United States, 333 U.S. 10, 13 (1948); United States v. Noriega, 676 F.3d 1252, 1261 (11th Cir. 2012); United States v. Cephas, 254 F.3d 488, 495 (4th Cir. 2001); United States v. Kittrell, No. CR 10-2903-TUC-RCC (JCG), 2011 WL 2746252, at *9 (D. Ariz. May 20, 2011), adopted by 2011 WL 2784618, at *1 (D. Ariz. July 13, 2011) (citation omitted); United States v. Neth, No. 6:09-cr-210-Orl-19GJK, 2010 WL 1257695, at *7-8 (M.D. Fla. Mar. 30, 2010); Floyd v. United States, Civil Action No. 3:08cv133-MEF, 2010 WL 1052839, at *7 (M.D. Ala. Feb. 18, 2010), adopted by 2010 WL 1197707, at *1 (M.D. Ala. Mar. 23, 2010); United States v. Murat, No. 08-20479-CR, 2008 WL 4394788, at *13 (S.D. Fla. Sept. 26, 2008), adopted at *1; United States v. Correa, No. 1:07-cr-00011-MP-AK, 2008 WL 1804309, at *12 (N.D. Fla. Apr. 18, 2008). In short, the totality of the circumstances presented in the affidavit, when taking a “realistic and commonsense approach” and not viewing the affidavit in a “hypertechnical manner,” established probable cause for the search warrant for Kilgore’s residence for the crime of unlawful possession of marijuana. Miller, 24 F.3d at 1361 (citation omitted).

Where the owner of the vehicle showed up at the scene before the decision to inventory and tow the vehicle was made, the inventory was improper because she wanted the car and they refused to give it over [apparently because they were bound and determined to search it]. United States v. Derrick, 2012 U.S. Dist. LEXIS 153809 (D. S.C. October 26, 2012):

Because it finds that Ms. Stover was present at the time of McIlwain’s arrest and before the inventory search occurred, the Court must conclude that the inventory search in this case violated the Fourth Amendment. As explained above, police must have lawful custody of a vehicle before an inventory search is proper. Here, however, at the time they arrested the defendant, the police could have turned the vehicle over to its rightful owner rather than impounding it. Cf. United States v. Fort, 313 Fed. App’x 665 (4th Cir. 2009) (finding that police had lawful custody of vehicle and that inventory search was valid where police made the decision to have vehicle towed and to subject it to inventory search prior to the time defendant’s wife arrived at the scene). The governmental interests discussed above in preventing theft, forestalling claims, and protecting the police are not implicated where the owner of the car is present at the time of the defendant’s arrest. Indeed, Ms. Stover could have taken the Accord and the police would have had no responsibility for the property therein.

Moreover, the officers’ decision to impound the Accord and subject it to inventory violated Lancaster City Police Department regulations. Specifically, the Lancaster City Police Department’s policy regarding “traffic ancillary services” performed by police officers states that officers “may cause a vehicle to be towed” under one of several limited circumstances, including “[a]ny vehicle from which an officer makes an arrest and there is no responsible party to whom the arrestee can turn over the possession of the vehicle.” Def.’s Ex. 1, at p. 3. Then, “[w]henever a vehicle is towed, the inventory and impoundment record will be completed by an officer and processed through normal administrative channels as a permanent record.” Id. at p. 4. In other words, where a “responsible party,” such as the vehicle’s owner, is present, an officer does not have a basis for impounding the vehicle and subjecting it to inventory search. See Bertine, 479 U.S. at 375 (noting that decision to impound must be based on “standard criteria and on the basis of something other than suspicion of evidence of criminal activity”).

Based on the above, the Accord was not in the lawful custody of the officers at the time of the inventory search. Consequently, the inventory search violated the defendant’s rights under the Fourth Amendment.

A pat down solely for officer safety was unreasonable. People v. Berdahl, 2012 COA 179, 2012 Colo. App. LEXIS 1734 (October 25, 2012):

[*P27] Nevertheless, the trial court appears to have applied a bright-line rule that an officer can conduct a pat-down search whenever he or she has an obligation to transport a person in a patrol car. The court found that the trooper had no real choice but to transport defendant, and “[t]he fact that defendant was not intoxicated did not eliminate or diminish a danger to [the trooper] if in fact the defendant was armed with a weapon.” The court concluded that requiring the trooper to transport defendant without first verifying that defendant was not armed would require the trooper to take unnecessary risks in performing his duties and, therefore, the search was reasonable.

[*P28] While we recognize that the trooper faces risks in performing his duties, we fail to see how such risks justify the search in this case. The trooper did not know if defendant or defendant’s girlfriend was armed with a weapon. Thus, the trooper faced the same risk transporting defendant as he did transporting defendant’s girlfriend. Despite this, the trooper subjected defendant to a pat-down search for weapons but did not search defendant’s girlfriend. Furthermore, as noted, the trooper had no reasonable and articulable suspicion to believe defendant was intoxicated or otherwise a threat and there was no departmental policy requiring the pat down.

[*P29] Under these circumstances — and where Colorado law has not recognized an officer safety exception absent a reasonable and articulable suspicion that an individual may be armed and dangerous or intoxicated — we conclude that the trooper’s pat-down search of defendant, conducted under his own “officer safety practice,” was not a constitutionally reasonable search.

Boston U. press release: “A celebration of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin, Professor of Law,” Monday, October 29, 2012:

Boston University School of Law is delighted to celebrate the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin, Professor of Law& Joseph Lipsitt Faculty Research Scholar.

The application of the Fourth Amendment’s Exclusionary Rule has divided the Justices of the Supreme Court for nearly a century. As the legal remedy for when police violate the Fourth Amendment rights of a person and discover criminal evidence through illegal search and seizure, it is the most frequently litigated constitutional issue in the nation’s courts. Tracey Maclin’s The Supreme Court and the Fourth Amendment’s Exclusionary Rule traces the rise and fall of the exclusionary rule using insight and behind-the-scenes access into the Court’s thinking. Based on original archival research into the private papers of retired Justices, Professor Maclin’s analysis clarifies the motivations and thoughts that explain the Court’s exclusionary rule jurisprudence. He includes a comprehensive scholarly and objective discussion of the reasoning behind the Court decisions, and demonstrates that like other constitutional doctrines, the exclusionary rule is a political mechanism that expands and contracts as the times and Justices change. Ultimately, this book will help readers understand how constitutional law is constructed by judges with diverse political perspectives.

Flyer here; Amazon here; Barnes & Noble here. I ordered it today.

Grits for Breakfast: Houston hearing honed in on use of drones by law enforcement:

Grits wishes I could have attended yesterday’s hearing in Houston of the US House Judiciary Committee’s Subcommittee on Crime on domestic use of unmanned drones by law enforcement, but James Pinkerton at the Houston Chronicle offered up a good report that began thusly (“Use of drones in community policing ‘uncharted territory’,” Oct. 25):

Privacy concerns about an airborne armada of government drones recording the actions of Americans was at the forefront of a congressional hearing Thursday in Houston, but so far Texas law enforcement has had limited experience with the new technology.

U.S. Rep. Ted Poe, R-Humble, chaired the hearing to discuss his proposed law that would ensure the unmanned aerial vehicles will not be used by government agents to illegally spy on Americans or let people stalk their neighbors.

The Texas Department of Public Safety employed drones from 2008 to 2010, but halted their use due to operational costs and federal regulations that limited both flight areas and radio frequencies to control the aircraft, said regional DPS Commander Duane Steen.

[I always have trouble with Grits’s links]

A forest service officer reasonably suspected defendant of smoking marijuana and he ordered him to empty his pockets. His refusal made it not a search. “Cf. California v. Hodari D., 499 U.S. 621, 629, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (holding no Fourth Amendment seizure occurred when juvenile did not comply with officer’s command to halt).” When defendant finally did, it was with probable cause. United States v. Pope, 686 F.3d 1078 (9th Cir. 2012).

Officers who had probable cause to believe the occupants in a car were involved in a crime was sufficient to justify a search. Williams v. State, 316 Ga. App. 821, 730 S.E.2d 541 (2012).*

Defendant took a pretrial application for writ to this court on a Gant issue denied by the trial court, and that order was law of the case and could not be appealed again on the direct appeal from the conviction. State v. Massey, 97 So. 3d 13 (La. App. 5 Cir. 2012).

There was no proof that the officer’s challenged statements were anything more than negligent. One was a reasonable assumption based on the facts known to the officer at the time. United States v. Wyatt, 2012 U.S. Dist. LEXIS 42725 (W.D. Ky. March 28, 2012).*

Just because there is no Fourth Amendment rights in prison does not mean that an inmate has no rights at all. Here, the inmate’s drinking mug was bought with his own money, and it was arbitrarily confiscated. He stated a claim under the takings clause of the state constitution. Johnson v. King, 85 So. 3d 307 (Miss. App. 2012).*

Officers stopped defendant with reasonable suspicion of drugs, and they blocked his car and approached with guns drawn. That was not a per se arrest. State v. Carter, 96 So. 3d 1283 (La. App. 5 Cir. 2012):

The vast majority of courts have held that police actions in blocking a suspect’s vehicle and approaching with weapons ready, and even drawn, does not constitute an arrest per se. United States v. Edwards, 53 F.3d 616, 619 (3rd Cir.1995). An investigatory stop necessarily involves an element of force or duress and the temporary restraint of a person’s freedom. There is the complete restriction of movement in an investigatory stop, but for a shorter period of time than an arrest. [citing cases] Investigatory stops may be accompanied by features normally associated with an arrest, i.e., use of drawn weapons. An investigatory stop is reasonable even when the police block a vehicle to prevent its occupant from leaving and approach with weapons ready or even drawn. [citing cases] Because an officer’s view of a suspect seated in a car is always partially obscured, the officer is at a disadvantage when he approaches the occupant. United States v. Edwards, 53 F.3d 616, 619 (3rd Cir.1995). Furthermore, guns and drugs frequently go hand-in-hand. State v. Warren, 05-2248, p. 18 (La.2/22/07), 949 So.2d 1215, 1229.

The juvenile was found on the street in a high crime area in violation of the curfew. He was patted down and a gun was found in his waistband. His sister testified that he was summoned from his porch and arrested. The juvenile court credited the officer’s version, and that’s the end of it. State in Interest of R.L., 95 So. 3d 1147 (La. App. 4 Cir. 2012).*

An officer observed two men get in a car and then he stopped it before a turn signal violation. The record supports that there was no reasonable suspicion to believe that one of the men was one Barbosa who was darkskinned, and not one of the two men. Therefore, there was no justification for an exit order under state law, and the motion to suppress should have been granted. [A brick of heroin was found in the console.] Commonwealth v. Damon, 82 Mass. App. Ct. 164, 971 N.E.2d 809 (2012).*

Not a search case, but interesting: Defendant answered the door at a house that the police showed up to search. He said he couldn’t consent to a search because he didn’t live there. The police searched and found drugs. The evidence was insufficient to connect him to the drugs other than spatial proximity. He did not control the premises, so his mere presence infers nothing. Conviction reversed. Garcia v. State, 316 Ga. App. 787, 730 S.E.2d 455 (2012).*

Defendant was searched in New Jersey and prosecuted in North Carolina. The search result might have been different in New Jersey, but the North Carolina court holds that state law requires that the search be governed by its state law. State v. Hernandez, 208 N.C. App. 591, 704 S.E.2d 55 (2010):

Next, Defendant argues that Trooper Ramcheran’s decision to ask for consent to search the truck violated the principle of New Jersey state constitutional law enunciated in State v. Elder, 192 N.J. 224, 927 A.2d 1250 (2007). N.C. Gen. Stat. § 15A-974 only authorizes the suppression of evidence in the event that “[i]ts exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina” or the evidence was “obtained as a result of a substantial violation of the provisions of” Chapter 15A of the North Carolina General Statutes. As should be obvious, any violation of the principle of New Jersey state constitutional law enunciated in Elder would not involve a violation of Chapter 15A of the North Carolina General Statutes. Assuming, without in any way deciding, that Trooper Ramcheran’s actions violated the New Jersey Constitution, any such “illegality under … state [law] can neither add to nor subtract from its validity” under the federal or North Carolina Constitutions since a “[m]ere violation of a state statute [or constitutional provision] does not infringe the federal Constitution.” Snowden v. Hughes, 321 U.S. 1, 11, 88 L. Ed. 497, 504, 64 S. Ct. 397, 402 (1944). Thus, this argument provides no basis for the suppression of evidence in a North Carolina court.

[Now, Virginia v. Moore would reach the same result.]

The exclusionary rule does not apply to driver’s license revocation proceedings. Hartman v. Robertson, 208 N.C. App. 692, 703 S.E.2d 811 (2010).

Where defendant consented to a search of his truck and a concealed weapon was found, Gant did not prohibit a further search of the truck. State v. Foy, 208 N.C. App. 562, 703 S.E.2d 741 (2010).*

Officers had reason to stop defendant’s car because the taillight was not lit, so the pretext (Whren) argument became moot. State v. Ford, 208 N.C. App. 699, 703 S.E.2d 768 (2010).*

Defendant was asked outside his apartment for his ID, and he told the officers it was in his apartment and the officers should come with him. He motioned for them to come inside. Once inside, they validly saw cocaine in plain view. Ruiz v. State, 50 So. 3d 1229 (Fla. App. 4th DCA 2011).* See Orin Kerr’s take on Volokh Conspiracy: Police Officers Committing Perjury in Testimony About Consent Searches?

The record supports the conclusion that defendant’s friend consented to a search of her shed where officers found an assault rifle defendant stored there. Mathis v. State, 53 So. 3d 1089 (Fla. App. 1st DCA January 6, 2011).*

The police entry into defendant’s house and his arrest violated the Fourth Amendment, so his statement could not be attenuated from the illegal arrest because it was continuous, even though he was twice Mirandized. Joseph v. State, 975 N.E.2d 420 (Ind. App. 2012):

The record indicates that while Joseph was given his Miranda advisements at least two times and was transported to the police station prior to making his statements to Detective Brown, it also indicates that Joseph was in constant police custody from the time that Officers Winters and Hoehn initiated the illegal search of his apartment and was aware that their search had resulted in the discovery of potentially relevant evidence. Joseph was questioned about this evidence by both the officers at the scene and Detective Brown at the police station. In addition, nothing in the record indicates that Joseph had any way of knowing that the potential evidence found in his apartment and his statements to Officers Winters and Hoehn would later be suppressed from trial when he spoke to Detective Brown. Based on these facts, especially the fact that Joseph was in constant police custody from the time of their illegal entry into and search of his apartment, knew what potential evidence had been discovered in his apartment, and had made prior potentially incriminating statements to Officers Winters and Hoehn, we cannot conclude that Joseph’s comments to Detective Brown were sufficiently attenuated from the illegal search of his apartment to dissipate any taint of the illegal police conduct. As such, we conclude that the trial court abused its discretion in admitting Joseph’s statements to Detective Brown at trial.

Defendant failed to show standing in a hotel room that he was not registered to that he was only a casual visitor to. United States v. Bushay, 859 F. Supp. 2d 1335 (N.D. Ga. 2012)*:

First, Judge Baverman concluded that Bushay lacked standing to challenge the agents’ search of the hotel room because he did not establish that he had a subjective or objective expectation of privacy in the hotel room. As to Bushay’s subjective expectation of privacy, the magistrate judge concluded that Bushay did not show that he had an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence on the premises as a mere guest or invitee. Specifically, Bushay failed to establish that the room was rented in his name, that he paid for the room, or that he was the registered additional guest.

In reaching this conclusion, Judge Baverman found significant that Bushay described his presence in the area as having “met friends”; referred to “the” hotel room rather than “his” hotel room; never proved that the two plastic keys were in fact the keys to room 308; did not prove that the vehicle he was operating at the time of his arrest was a vehicle registered for room 308; was not using the hotel for lodging; and kept no personal items in the room other than the gun. Although Bushay argued that the fact that the agents believed that he was staying in the room helped prove his standing, Judge Baverman found this argument unpersuasive because a defendant may not establish standing by relying on the government’s theory of the case. Because he could not establish that the hotel room was his, nor could he establish that he was an overnight guest, Judge Baverman found that Bushay had not established that he had a subjective expectation of privacy. Further, he concluded that Bushay had also failed to establish an objective expectation of privacy in the hotel room because at most he was only a casual visitor.

Defendant’s consent to a computer search for child pornography was voluntary. He was seemingly gregarious when talking with the officers explaining his obtaining child pornography. [For staleness cases, note that defendant admitted eight years worth of stuff.] United States v. Schaefer, 859 F. Supp. 2d 397 (E.D. N.Y. 2012):

First, the circumstances surrounding the consent to search were non-coercive. In particular, the Court finds that (1) the defendant was approached at his own residence during the early evening; (2) the two agents and detective who came to his home to speak with him were in plain clothes, and their weapons were not drawn; (3) the agents asked the defendant for permission to enter his home, which he granted; (4) the agents introduced themselves and stated that the reason for the visit related to child pornography; (5) the defendant was never handcuffed or placed in custody by the agents; (6) the entire interview and search took one-half hour; and (7) no threats or promises were made to the defendant during the interview or search.

Second, the defendant orally consented to the search and also signed a written consent form which (1) specifically advised him of his right to refuse consent, (2) stated that he understood that information obtained by the search could be used against him, and (3) stated that no threats or promises had been made in exchange for consent.

Third, with respect to the characteristics of the defendant, the Court notes that the defendant is a 53-year old who graduated high school, reads English, manages a deli department, and is familiar with computers. Thus, his personal characteristics also favor a finding that he voluntarily consented to the search.

Defendant was stopped for a traffic offense, and the officer found that she had a suspended DL. He asked about prior arrests, and she related some but left out prior drug arrests. The officer got back her prior arrests for drugs after she’d been allowed back in the car in the passenger seat. He got her out of the car again and asked why she’d lied about the prior drug arrests, and she started to cry. He asked for consent and got it. It was all a valid consent, even though she was retrieved from the car a second time. This was characterized as “mere conversation” and not a part of the detention [even though it should have been apparent that the reason was to confront her and ask for consent]. State v. Mazzucchi, 252 Ore. App. 122, 284 P.3d 1263 (2012).*

Officers had reasonable suspicion for stopping defendant for an apparent drug deal in a high crime area. He’d been followed, and a collection of innocent facts added up to reasonable suspicion, particularly looking to see if people were looking, an apparent drug deal in the car from somebody getting in and right out, and more. State v. Holt, 206 Md. App. 539, 51 A.3d 1 (2012).*

There was a reasonable certainty that the defendant just crossed the border for the extended border search doctrine where he was seen near the border after having literally been seen on the Mexican side of the border shortly before that. “Proof of the border crossing beyond a reasonable doubt, however, is not the applicable standard. Guzman-Padilla, 573 F.3d at 880.” United States v. Nelson, 2012 U.S. Dist. LEXIS 32249 (D. Ariz. March 12, 2012), R&R 2011 U.S. Dist. LEXIS 154016 (D. Ariz. December 2, 2011).*

Based on the totality of defendant’s nervousness, lack of current logbook, inability to show where he was going on a map compared to where he said he came from and more all added up to reasonable suspicion. United States v. Fraguela-Casanova, 858 F. Supp. 2d 432 (M.D. Pa. 2012).*

Defendant failed to show false information was included in the affidavit for the search warrant under Franks. United States v. Kearse, 2012 U.S. Dist. LEXIS 32576 (E.D. Tenn. February 21, 2012).*

Update: American Federation of State County and Municipal Employees, Council 79 v. Scott, 857 F. Supp. 2d 1322 (S.D. Fla. 2012):

To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. Chandler, 520 U.S. at 313. To warrant an exception from the main rule, the government must show that it has a “special need, beyond the normal need for law enforcement.” Id. When, as here, the government alleges such a need, “courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Id. at 314. The permissibility of a drug-testing program “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Skinner, 489 U.S. at 619-620 (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)).

. . .

Moving to the Georgia statute [in Chandler] in question, the Court held that merely aspirational goals, such as promoting public confidence and trust in elected officials and demonstrating the government’s commitment to the struggle against drug abuse, which are not tied to any real, concrete danger, do not constitute a “special need” sufficient to exempt a state from its normal Fourth Amendment requirements. According to the Court, Georgia had failed to present any evidence of a “concrete danger” that would demonstrate that the hazards the state sought to avoid were “real and not simply hypothetical.” Id. at 319-20. In particular, the state had asserted “no evidence of a drug problem among the State’s elected officials,” nor did the covered individuals “typically … perform high-risk, safety sensitive tasks.” Id. “Symbolic” public concerns, the Chandler Court concluded, warrant no special departure from the Fourth Amendment. Id. at 322.

. . .

In other words, the Governor’s safety rationale for the EO essentially relies on the Governor’s common sense belief that because illegal drug use exists in the general population, it must also exist among state employees. And, the Governor predicts these drug-impaired employees will be less reliable and more accident-prone; thus, a public benefit will be attained by ensuring that all state employees under the Governor’s purview are drug-free. The Governor may be right, but unlike the programs in Skinner, Nat’l Treasury, and Vernonia, which were moored to concrete dangers, the Governor’s program is detached from any readily-apparent or demonstrated risk. Rather, the Governor’s broadly-defined objectives more closely resemble the state of Georgia’s argument, rejected in Chandler, that the testing of state officials was justified because “the use of illegal drugs draws into question an official’s judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials.” 520 U.S. at 318. And in Chandler, the Supreme Court held that without evidence of a drug problem among the state’s elected officials (who typically do not perform high-risk, safety-sensitive tasks), this justification was “symbolic, not ‘special,’” as required by the relevant precedents. Id. at 322.

The Union here asks for a permanent injunction, which requires three elements: (1) there was a legal violation; (2) there is a serious risk of continuing irreparable injury if an injunction is not granted; and (3) there are no adequate remedies at law. Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000). Here, the Court finds that the EO, as applied to current employees at the covered agencies, is violative of the Fourth Amendment, and that these employees will suffer irreparable harm if subjected to it. See Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (holding that Fourth Amendment violation is enough to show irreparable harm); see also Am. Fed’n of Teachers-West Va., AFL-CIO v. Kanawha Cnty. Bd. of Educ., 592 F. Supp. 2d 883 (S.D.W. Va. 2009); Bannister v. Bd. of Cnty. Comm’rs of Leavenworth Cnty., Kan., 829 F. Supp. 1249 (D. Kan. 1993); Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), but see 309 F.3d 330 (6th Cir. 2002) (holding that district court erred in granting preliminary injunction) vacated by 319 F.3d 258 (6th Cir. 2003). The Court also concludes that there is no adequate remedy at law in light of the immeasurable nature of the harm that will flow from the EO’s implementation; were the EO to be implemented, the current employees at the covered agencies would suffer a Fourth Amendment violation that cannot be remedied in monetary terms. “Indeed, one reason for issuing an injunction may be that damages, being immeasurable, will not provide a remedy at law.” Treasure Valley Potato Bargaining Asso. v. Ore-Ida Foods, Inc., 497 F.2d 203, 218 (9th Cir. 1974), cert. denied 419 U.S. 999 (1974).

The Court is mindful, however, that injunctive relief should be limited in scope to the extent necessary to protect the interests of the parties. See Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984). Because the Union did not contend that the EO is unconstitutional as applied to “prospective new hires,” meaning individuals who are not currently employed at covered agencies, the Court does not reach the issues of whether such prospective employees can be subjected to preemployment testing and subsequent random drug testing pursuant to the EO. However, the relief encompasses both Union and non-Union employees because the EO is unconstitutional as applied to them for precisely the same reasons. Accordingly, the Court grants permanent injunctive relief to all individuals currently employed at covered agencies.

StoptheDrugWar.org: Judge Rejects Florida State Employee Drug Testing by Phillip Smith

Jacksonville.com: Rick Scott’s state worker drug tests ruled unconstitutional by Mike Marino

HuffPo: Rick Scott Drug Testing Executive Order Ruled Unconstitutional By Federal Judge by Arthur Delaney

MiamiHerald.com: Judge: Fla. worker drug testing unconstitutional

A jailer was reasonable subjected to a strip search at work based on credible reports he would be bringing cannabis into the jail. His car was stopped and it and his person would be searched. Since drugs weren’t found in those searches, reasonable suspicion thus existed for an employee strip search. King v. Schieferdecker, 2012 U.S. App. LEXIS 22161 (7th Cir. October 25, 2012):

Nor could King successfully challenge the court’s conclusion that the sheriff had reasonable suspicion to strip-search him. Before conducting a strip search, the officers needed a reasonable suspicion that King was concealing drugs. See Bell v. Wolfish, 441 U.S. 520, 558-60 (1979); Campbell v. Miller, 499 F.3d 711, 717 (7th Cir. 2007); Kraushaar v. Flanigan, 45 F.3d 1040, 1045-46 (7th Cir. 1995); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983). That standard was met here. Multiple people informed the sheriff that King had an outstanding arrest warrant and was planning to take drugs into his work facility. Some of this information came from a co-worker close to King who had previously reported credible information about a different employee involved in illegal drug activity. Based on this information, the sheriff directed officers to stop King’s car. The officers then patted down King and searched his vehicle with his consent. Because the sheriff was told specifically that King was planning to bring drugs to work, and neither the pat down or search of the car revealed any evidence, the sheriff had reasonable suspicion to search King’s body further, which led to the strip-search at the jail.