Massachusetts engages in a sensitive analysis of abandonment and subjective reasonable expectation of privacy and concludes that a fleeing suspect who stashes a backpack under a bush in a neighbor’s yard really didn’t have one. (Alternatively, there were exigent circumstances.) Commonwealth v. Carnes, 81 Mass. App. Ct. 713, 967 N.E.2d 148 (2012):

A search in the constitutional sense requires that the defendant must have had a subjective expectation of privacy in the item or place searched, and that such expectation must have been one that society recognizes as reasonable. See, e.g., Commonwealth v. Pina, 406 Mass. 540, 544, cert. denied, 498 U.S. 832 (1990); Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). “The defendant bears the burden of establishing both elements.” Commonwealth v. Montanez, 410 Mass. at 301. Here, the judge’s conclusion of abandonment requires us to consider whether the defendant manifested a subjective expectation of privacy in the place searched, and in the contents of his backpack, which “could be considered objectively reasonable or legitimate.” Commonwealth v. Straw, 422 Mass. 756, 759 (1996). More particularly, abandonment is a question of intent, which may be inferred from words, behavior, and other objective facts. See generally Commonwealth v. Paszko, 391 Mass. 164, 184 (1984).

Because we conclude that the defendant’s actions in discarding the backpack in the back yard of his best friend suggest a subjective expectation of privacy, we focus on whether the defendant’s subjective expectation of privacy “could be considered objectively reasonable or legitimate.” Commonwealth v. Straw, 422 Mass. at 759. First, we consider that the defendant concealed his backpack outside, in a back yard in which “by law, he … had no reasonable expectation of privacy.” Id. at 761. He was neither the owner nor did he establish any right of control over the property. See Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (defendant put drugs in friend’s purse over which he had no control or right to exclude others); United States v. Hershenow, 680 F.2d 847, 855-856 (lst Cir. 1982) (defendant had “no legal interest or even access rights” to the storage barn where he directed another to hide a box of incriminating evidence). See also Commonwealth v. Williams, 453 Mass. at 207-209 (“defendant lacked a reasonable expectation of privacy in the basement area [of her mother’s apartment building] in which she had deposited some possessions”); United States v. Soto, 779 F. Supp. 2d 208, 219 (D. Mass. 2011) (defendant had no legitimate expectation of privacy in computer’s hard drive left in vehicle defendant obtained by fraud and turned over to third party; hard drive deemed abandoned). Contrast Commonwealth v. Mubdi, 456 Mass. 385, 391-394 (2010), citing with approval Commonwealth v. Williams, supra.

. . .

In sum, the defendant’s act of hiding his backpack in the bushes in his best friend’s yard without establishing that he placed the backpack in someone else’s control, while he was trying to avoid apprehension, and in particular, while he was in possession of a handgun, fails to evoke an expectation of privacy that society is willing to recognize as reasonable. See Commonwealth v. Carter, 424 Mass. 409, 412 (1997) (art. 14 “does not relieve a defendant who unlawfully intruded on someone else’s reasonable expectation of privacy from establishing that he had a reasonable expectation of privacy himself”). The motion judge properly concluded that the backpack had been abandoned. See generally United States v. Morgan, 936 F.2d at 1570-1571, cited with approval in Commonwealth v. Straw, 422 Mass. at 760-761; United States v. Soto, 779 F. Supp. 2d at 219.

One could wish that all courts would do this analysis. Few would. Still, the defendant loses, but he can’t complain he wasn’t adequately heard.

The government seized 61 hard drives to copy and copied four others then took its time analyzing them. The court finds the delay was unreasonable and was a “flagrant disregard” of the rights of the owner of the computers and target of the search and suppresses. United States v. Metter, 860 F. Supp. 2d 205 (E.D. N.Y. 2012):

This conclusion leaves the Court with a final determination to make: What is the appropriate remedy in this case? It is well-settled that “[g]overnment agents ‘flagrantly disregard’ the terms of a warrant so that wholesale suppression is required only when (1) they effect a ‘widespread seizure of items that were not within the scope of the warrant,’ … and (2) do not act in good faith.” United States v. Liu, 239 F. 3d 138, 140 (2d Cir. 2000) (quoting United States v. Matias, 836 F. 2d 744, 748 (2d Cir. 1988)). “The rationale for blanket suppression is that a search that greatly exceeds the bounds of a warrant and is not conducted in good faith is essentially indistinguishable from a general search.” Liu, 239 F. 3d at 141. “[T]o satisfy the first prong of the two-part test described above, the search conducted by government agents must actually resemble a general search.” Id. Thus, “the extreme remedy of blanket suppression should only be imposed in the most extraordinary of cases.” United States v. Foster, 100 F. 3d 846, 852 (10th Cir. 1996) (internal quotation marks omitted.)

The lack of good faith by the government can be inferred from its conduct in this case. In the affidavits in support of the search warrants issued in this case, the government promised to review the evidence seized offsite to determine whether any evidence fell outside the scope of the warrants. (See McGuire Home Aff. ¶ 58; Carrano Aff. ¶ 60; McGuire Email Aff. ¶ 130.) The government then failed to commence the review, despite repeated requests from defense counsel and directions from the Court to do so. In fact, the government seemed shocked that the Court would require such a review, and, as mentioned above, threatened to provide all of the evidence seized and imaged to each defendant in the case, without conducting any such review. (See 2/4/11 S/C Tr. 24-26, 29-30; 2/28/11 Gov’t Letter at 2.) The government’s own conduct and statements indicate that it had no intention of fulfilling its obligations as promised in the search warrants. Nor has the government presented any evidence or arguments to the effect that it failed to fulfill this obligation due to limited resources, such as it has argued in other cases.

The Court has not reached this conclusion lightly. However, the Court cannot, in the interest of justice and fairness, permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination. Accordingly, Metter’s motion to suppress is granted. This conclusion is limited to the electronic evidence seized and imaged pursuant to the Metter Home Search Warrant, Office Search Warrant, and Email Search Warrant and does not include the paper documents and currency seized pursuant to those warrants.

Udpate: I’ve looked a couple of times today to find the order, and I can’t without paying for it. Even then, I don’t have the capability of posting it as a pdf yet (well, never asked to learn). At any rate, here is a link from the USAO about the case which, of course, doesn’t mention this order. It does show, however, a status conference for this week as to Mr. Metter, and all the other defendants have apparently pled guilty. One of the letter briefs by the government appears here.

The City of LA can’t arbitrarily seize unabandoned property of the denizens of the City’s “Skid Row” district without affording due process. The appeal from the preliminary injunction granted by the District Court is denied. “The City has … asked us to declare that the unattended property of homeless persons is uniquely beyond the reach of the Constitution, so that the government may seize and destroy with impunity the worldly possessions of a vulnerable group in our society. Because even the most basic reading of our Constitution prohibits such a result, the City’s appeal is DENIED.” Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012):

Appellees, nine homeless individuals living in the “Skid Row” district of Los Angeles, charge that the City of Los Angeles (the “City”) violated their Fourth and Fourteenth Amendment rights by seizing and immediately destroying their unabandoned personal possessions, temporarily left on public sidewalks while Appellees attended to necessary tasks such as eating, showering, and using restrooms. Finding a strong likelihood of success on the merits of these claims, the district court enjoined the City from confiscating and summarily destroying unabandoned property in Skid Row. The narrow injunction bars the City from:

1. Seizing property in Skid Row absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, or is evidence of a crime, or contraband; and

2. Absent an immediate threat to public health or safety, destruction of said seized property without maintaining it in a secure location for a period of less than 90 days.

Lavan v. City of Los Angeles, 797 F. Supp. 2d 1005, 1020 (C.D. Cal. 2011).

The district court expanded upon the great leeway the City retains to protect public health and safety, noting: “The City [is] able to lawfully seize and detain property, as well as remove hazardous debris and other trash; issuance of the injunction … merely prevent[s the City] from unlawfully seizing and destroying personal property that is not abandoned without providing any meaningful notice and opportunity to be heard.” Id. at 1019.

In this appeal, the City does not challenge the scope of the injunction, nor does it ask us to modify its terms; instead, the City argues only that the district court applied the wrong legal standard in evaluating Appellees’ claims.

We conclude that the Fourth and Fourteenth Amendments protect homeless persons from government seizure and summary destruction of their unabandoned, but momentarily unattended, personal property.

. . .

This appeal does not concern the power of the federal courts to constrain municipal governments from addressing the deep and pressing problem of mass homelessness or to otherwise fulfill their obligations to maintain public health and safety. In fact, this court would urge Los Angeles to do more to resolve that problem and to fulfill that obligation. Nor does this appeal concern any purported right to use public sidewalks as personal storage facilities. The City has instead asked us to declare that the unattended property of homeless persons is uniquely beyond the reach of the Constitution, so that the government may seize and destroy with impunity the worldly possessions of a vulnerable group in our society. Because even the most basic reading of our Constitution prohibits such a result, the City’s appeal is DENIED.

Courthouse News Service: Homeless Still Have Rights to Property Left Unattended by Tim Hull.

computerworld.com: Fighting unconstitutional stingray phone surveillance that tracks innocent people by Darlene Storm:

Let’s say you have your cell phone with you, even if you are not talking or texting, otherwise minding your own business, innocent of being suspected of any crime … but hey your privacy can be invaded as if you have no Fourth Amendment rights at all. A portable device known as an IMSI catcher, also known by the generic term stingray, acts like a fake cell tower and tricks your mobile device into connecting to it even if you are not on a call. It is used for real time location tracking; some can pinpoint you within two meters as well as eavesdrop and capture the contents of your communications. There’s been a stink about them for a little more than a year, but three big privacy and civil liberty groups, the ACLU, EPIC and the EFF have all warned that the secretive devices threaten your rights and that the invasive technology is unconstitutional.

Reason.com: Little-Known Device Raises Big Fourth Amendment Implications:

On Friday, EFF and the ACLU submitted an amicus brief in United States v. Rigmaiden, a closely-followed case that has enormous consequences for individuals’ Fourth Amendment rights in their home and on their cell phone. As the Wall Street Journal explained today, the technology at the heart of the case invades the privacy of countless innocent people that have never even been suspected of a crime.

Rigmaiden centers around a secretive device that federal law enforcement and local police have been using with increased frequency: an International Mobile Subscriber Identity locator, or “IMSI catcher.” These devices allow the government to electronically search large areas for a particular cell phone’s signal—sucking down data on potentially thousands of innocent people along the way—while attempting to avoid many of the traditional limitations set forth in the Constitution.

Source: EFF. Read full article. (link)

NJ.com: N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case by Anthony Campisi:

Justices of the state Supreme Court wrestled Monday with drawing new privacy protections in a world where police can engage in the sophisticated tracking of suspects using the most ubiquitous of devices: the cellphone.

From NACDL:

NACDL’s October 23 Program (this morning) at the National Press Club — Entrusting the Fourth Amendment to the Dogs: Canine Evidence and the Constitution (Introductory Remarks, NACDL President Steven D. Benjamin; Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; Marc Rotenberg, Executive Director, Electronic Privacy Information Center (EPIC); Professor of Information Privacy Law, Georgetown University Law Center; Danielle Spinelli, Partner and Supreme Court Litigator, WilmerHale; former clerk to The Hon. Stephen Breyer, U.S. Supreme Court, 2000-01; Jeffrey S. Weiner, Criminal Defense Lawyer and Dog Sniff Expert, Miami, Florida; Past President of NACDL (1991-92); David G. Savage (moderator), Supreme Court Reoprter for the Los Angeles Times and Chicago Tribune.) Video available here (see right rail for player).

LATimes.com: Manson follower’s tape recordings off limits to LAPD for now (posted 10/18):

A federal judge in Texas has blocked a request by the Los Angeles Police Department to review recordings of a key Charles Manson follower and an attorney made decades ago.

The tapes are of Manson follower Charles “Tex” Watson, who has said the recordings won’t provide any new evidence about the infamous murders.

Among Manson murder experts, there is much debate about what new revelations the Watson tapes might yield. At least three deaths have been considered as possible murders by those involved in the Manson investigations. …

A U.S. Bankruptcy Court judge in Texas this spring granted a request from the Los Angeles Police Department to review eight cassette tapes containing hours of conversations between Watson and his late attorney after the LAPD argued that it might shed light on unsolved murders. The lawyer made the recordings while interviewing Watson after he and other Manson family members were arrested in 1969.

LATimes.com: New Manson murder probe could bring closure for families (posted 10/19):

Los Angeles police officials said they hope to bring closure to the families of victims in a dozen unsolved homicides that occurred near places where the Manson family operated during its slew of murders four decades ago.

Officials revealed Thursday that they have 12 open cases and that they hope audiotapes recorded in 1969 between Charles Manson follower Charles “Tex” Watson and his attorney could provide some answers.

What isn’t mentioned clearly here is that the recordings were made by Watson and his attorney in 1969, and they remain privileged unless Watson is willing to reveal them.

Two days ago, I started looking on Lexis and Westlaw and I haven’t been able to find either the Bankruptcy or District Judge’s orders. Maybe they will show later.

Officers conducting a knock and talk got no answer at the front door, and they went around to the back where there was no path. There was no justification for going to the back door, and the view of marijuana plants in the back is suppressed. State v. Pasour, 2012 N.C. App. LEXIS 1201 (October 16, 2012):

Here, the officers were within the curtilage of the home when they viewed the plants, regardless of whether they were in the back or side yards. See Rhodes, 151 N.C. App. at 214, 565 S.E.2d at 270 (2002). There is no indication from the record that the plants were visible from the front or from the road. The trial court found that there was a “no trespassing” sign that was “plainly visible” on the side of the residence where the officers walked. Even though the officers claim they did not see the sign, such a sign is evidence of the homeowner’s intent that the side and back of the home were not open to the public. Unlike in Garcia, there is no evidence here to suggest that there was a path of any kind or anything else to suggest a visitor’s use of the rear door; instead, all visitor traffic appeared to be kept to the front door and traffic to the rear was discouraged as a result of the posted sign. See Garcia, 997 F.2d at 1279-80.

Further, similar to the circumstances in Pena, there is no evidence in the record that suggests that the officers had reason to believe that knocking at Defendant’s back door would produce a response after knocking multiple times at his front and side doors had not. At the suppression hearing, the officers testified that they went into Defendant’s backyard as part of “standard procedure” to see if anyone was in the backyard or in the residence. The State argues that one of the police officers heard a sound within the dwelling, and as such, it was reasonable to believe that there was someone home who was simply unaware of the officers’ presence, and so the officers were justified in entering the backyard. The officers admit that they never saw anyone come out of the house, nor did they hear noises coming from the back of the house. It is also unclear from the hearing transcript as to whether the officers started around back before or after they became aware that the officer knocking at the door had even heard a noise, as one testified that they started back after the initial knock and the other testified they started back after their fellow officer heard a noise. The officer that heard the noise was not able to identify when in time he heard it, what the noise sounded like, where it came from, or even if it sounded like a person moving around. Furthermore, the trial court made no finding of fact on this point; instead it only found that the officers went around back as was “standard procedure” “to observe anyone leaving the house” and for officer safety. Neither this finding nor the underlying facts is sufficient to support the officers’ movement toward the back of the house.

Given the circumstances of this case, there was no justification for the officers to enter Defendant’s backyard and so their actions were violative of the Fourth Amendment. Accordingly, we reverse the trial court’s denial of Defendant’s motion to suppress.

There are cases contra.

When a USDJ reviews a USMJ’s R&R, the court does not abuse its discretion in accepting an argument not presented to the USMJ to sustain the search. Waiver doesn’t work that way. United States v. Franklin, 694 F.3d 1 (11th Cir. 2012):

A district court does not abuse its discretion by accepting an argument not raised before the magistrate judge. Id. at 1176-77. In Tolbert, this Court held that “[w]e reject the notion that, in its review of the report and recommendation, the district court performed an appellate function and was barred, outside of exceptional circumstances, from considering an argument not raised before the magistrate judge.” Id. The district court did not abuse its discretion in allowing the Government to argue in its objection to the magistrate judge’s report and recommendation that the entry and seizure of the firearms did not violate the Fourth Amendment because the record demonstrated that probable cause and exigent circumstances justified the officer’s conduct.

Defendant did not object to the cause of his stop on information from a CI, but he did to the patdown that produced nothing. Shortly thereafter, the police received information from his codefendant that he was hiding drugs in his buttocks, and that supported a further search for the drugs. Canada v. State, 2010 Ark. App. 510, 2010 Ark. App. LEXIS 548 (June 23, 2010), companion case Jackson v. State, 2010 Ark. App. 359, 374 S.W.3d 857 (2010).*

Defense counsel was not ineffective for not challenging the search of defendant’s car because there was probable cause for the search. Means v. State, 2010 Tenn. Crim. App. LEXIS 531 (June 21, 2010).*

The search of defendant’s car was with probable cause he possessed drugs, so Gant was not a bar to the search. United States v. Hodges, 2010 U.S. Dist. LEXIS 62760 (D. Kan. June 23, 2010).*

Accidentally leaving one’s turn signal on is not evidence of impairment, without more. Killebrew v. State, 2012 Ind. App. LEXIS 528 (October 19, 2012).*

Failure to argue to the trial court that the lineup was based on unlawful detention waived the argument for appeal. State v. Rucker, 2012 Ohio 4860, 2012 Ohio App. LEXIS 4254 (2d Dist. October 19, 2012).*

The officers’ entry into defendant’s motel room for a protective sweep was unjustified. Excising those observations from the search warrant affidavit, however, still left probable cause for the search warrant. State v. Bell, 2012 Ohio 4853, 2012 Ohio App. LEXIS 4244 (2d Dist. October 19, 2012).*

Officers pointing of weapons and use of physical force during execution of a drug and firearms search warrant was not subject to qualified immunity. The warrant was supported with probable cause. The claim of unreasonableness of the search itself was essentially waived in the district court, and the court would not undertake it on appeal. The officers were also entitled to qualified immunity on the scope of seizure based on the scope of the search warrant. Marcilis v. Twp. of Redford, 693 F.3d 589(6th Cir. 2012)*:

The money, the jewelry, and the personal effects, are all valuable items or proceeds which fall within the scope of the warrant. See, e.g., United States v. Blair, 214 F.3d 690, 697 (6th Cir. 2000) (finding that vehicles, jewelry, and money are “items related to narcotics transactions or the proceeds of narcotics transactions”). Likewise, the police officers may have reasonably believed that any bills seized and photographs taken, as well as the weapons permit, marriage license, and property deed, contained information reasonably related to the sale and the possession of narcotics, possession and ownership of firearms, the depiction of controlled substances and proceeds from controlled substances, and the ownership of the searched homes. See United States v. Savoy, 280 F. App’x 504, 511 (6th Cir. 2008). Moreover, a search does not become invalid merely because some items not covered by a warrant are seized. Rather, an otherwise valid search becomes an impermissible general search only where the searching officers demonstrate a flagrant disregard for the limitations of a search warrant. United States v. Lambert, 771 F.2d 83, 93 (6th Cir. 1985). Though the officers might have been mistaken as to whether the photographs seized were within the scope of the warrant, we cannot conclude that it was a “flagrant disregard” of the warrant limitation to seize photographs pursuant to a warrant that expressly provided for the seizure of “all photographs … depict[ing] controlled substances and/or proceeds from controlled substances.” See, e.g., United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988) (finding that the improper seizure of 667 pieces of property grossly exceeded the scope of the warrant and required suppression of all evidence under the warrant). We find that the district court correctly concluded that police officers are due qualified immunity on this claim.

There is no reasonable expectation of privacy in the cell phone of another in the defendant’s possession. United States v. Clinton, 2012 U.S. Dist. LEXIS 150171 (D. S.D. October 4, 2012):

Clinton’s mere possession of the cell phone, without more, is insufficient to establish a Fourth Amendment right to privacy in its contents. Salvucci, id., 448 U.S. at 91-92. In United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) the Fifth Circuit held that the defendant had a privacy interest in a cell phone which was subscribed to his employer but which was issued to him and which his employer allowed him to use. The Court reasoned that “although [the defendant’s] employer issued the phone, [the defendant] maintained a property interest in the phone, had a right to exclude others from using the phone, exhibited a subjective expectation of privacy in the phone, and took normal precautions to maintain his privacy in the phone.” Id.

The Courts hold that persons who merely possess a cell phone subscribed to a third person, however, do not have a Fourth Amendment privacy interest sufficient to challenge a warrantless search. See United States v. Skinner, 2007 WL 1556596 (E.D. Tenn.) [*9] (Defendant lacked standing to challenge use of cell phone information because the cell phone in question was subscribed to a third person); United States v. Davis, 2011 WL 2036463 (D. Or.) (sex trafficking case; “defendant’s mere use of the telephone number is insufficient to create a legitimate privacy interest in the cell phone records. Defendant was not the registered owner or subscriber of the phone, and he was not registered as a permissible user. Defendant has presented no evidence that he had the permission of the subscriber …”); United States v. Suarez-Blanca, 2008 WL 4200156 at * 7 (N.D. Ga.) (Defendant failed to demonstrate an expectation of privacy in cell phone found on his person, but to which he was not the subscriber “society is not prepared to recognize a privacy interest for individuals who hold cell phones that are not linked to the subscribers of those cell phones.”). See also, Christensen v. County of Boone, Illinois, 483 F.3d 454, 461 (7th Cir. 2007) (“[Defendant] had no legitimate expectation of privacy in a cell phone belonging to someone else.”). The only record evidence indicates the cell phone seized from Clinton upon his arrest belonged to a third party. Clinton presented no evidence that he possessed or used the cell phone with permission of the third party. Because Fourth Amendment rights are personal and cannot be asserted vicariously, therefore, Clinton failed to carry his burden “of proving he had a legitimate expectation of privacy that was violated by the challenged search.” United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995).

The court finds the defendant consented after an illegal search of his luggage. (Why is important, and this is an important lesson.) United States v. Jimenez, 2012 U.S. Dist. LEXIS 148699 (S.D. N.Y. October 10, 2012) (Judge Swain):

Jimenez admitted at the hearing that he assented to Veloz’s request to search the luggage after signing the Miranda waiver form. However, he asserts that he was detained by the Miami-Dade law enforcement officers and consented to the search against his will. He testified as to the following at the hearing in support of his claim of coercion: (1) he was approached in the airport by officers with guns drawn; (2) he was made to sit on the floor until other officers arrived; (3) Veloz asked him “firmly” to accompany him to a room for questioning; (4) he was not told he could get a lawyer at that moment; (5) he was not told that he could withhold consent; and (6) he did not understand the Miranda warnings. Jimenez also asserts that he “really didn’t have any other choice” but to consent to the search because it was apparent from Detective Veloz’s questions about the money in the luggage that he had already executed a search and knew what the luggage contained. The Government and Detective Veloz dispute each of these claims.

As noted above, the Court does not find credible Jimenez’s assertions at the hearing — which are glaringly absent from his moving papers — that he was held at gun point or otherwise prevented from leaving, and that Detective Veloz revealed that he already knew what was in the luggage prior to obtaining Jimenez’s consent to conduct a search.

Towing a vehicle under the community caretaking function was justified where defendant’s car was stopped for a traffic offense and the driver had a suspended DL. It was in a parking lot in a high crime area known for car break-ins, and the vehicle had expensive stuff in it. State v. Oneill, 251 Ore. App. 424, 285 P.3d 1127 (2012).*

The officer’s founded conclusion that the defendant was under the influence of meth when her car was stopped did not also support the inference that the paraphernalia to ingest was also on her person. The motion to suppress should have been granted. State v. Kolb, 251 Ore. App. 303, 283 P.3d 423 (2012).*

Defendant had a valid re-sentencing issue, but he couldn’t gain the benefit of 2009’s Gant decision on his 1995 conviction. State v. Pittman, 20 Neb. App. 36, 817 N.W.2d 784 (2012).*

Defendant had no standing to challenge the search of his mother’s and sister’s house. He lived elsewhere, but he only occasionally spent the night there; he didn’t on the day in question. He was there, but he fled when the police showed, and that was an abandonment of whatever expectation of privacy he had in the premises. United States v. Oliver, 2012 U.S. Dist. LEXIS 27701 (E.D. Tex. March 2, 2012):

The Court finds that Oliver has no expectation of privacy in the PR 2623 residence. The evidence shows that, at the time of the search, the residence was owned by his mother and sister, but not by him. Oliver lived in a home with his wife in Longview, Texas. Further, Oliver, at most, only sporadically slept at the residence. Additionally, there is no evidence before the Court that on May 1, 2009, when officers executed the search, Oliver was present in the home when the search was conducted. The Government alleges that Oliver was there and fled immediately before the search began. Thus, if Oliver was not present in the home during the search, Oliver cannot claim an expectation of privacy. Further, if as the Government contends, Oliver was present in his mother and sister’s home at the time of the search but fled immediately before the search began, then he abandoned any expectation of privacy he had in the home upon fleeing the premises.

Claimant’s vehicle was stopped for crossing the fog line three times in a mile while being followed. Officers noticed that the truck appeared to be modified while following it. After a dog alert within minutes of the stop, the vehicle was towed to a nearby garage, and they drilled a hole for a fiberoptic scope that revealed plastic wrapped packages. The mechanic figured out how to activate the electrically operated truck bed revealing the cash. After the cash was found not to be drugs, the claimant and his passenger were released six hours after the stop. The stop and search were legal. United States v. One Million, Thirty-two Thousand, Nine Hundred Eighty Dollars in U.S. Currency ($1,032,980.00), 855 F. Supp. 2d 678 (N.D. Ohio 2012).*

Illinois once again holds, contrary to the law in the rest of the country, that the defendant has the burden of showing that his arrest was unjustified. Apparently Illinois believes that all arrests are presumptively valid. People v. Liekis, 2012 IL App (2d) 100774, 362 Ill. Dec. 669, 973 N.E.2d 1065 (2012)*:

[P20] On appeal from a trial court’s ruling on a motion to quash and suppress, the reviewing court “will accord great deference to the trial court’s factual findings and will reverse those findings only if they are against the manifest weight of the evidence.” People v. Close, 238 Ill. 2d 497, 504 (2010). However, the trial court’s ultimate decision to grant or deny the motion is subject to de novo review. Id. A defendant moving to quash and suppress bears the burden of establishing a prima facie case that she was doing nothing unusual to justify the intrusion of a warrantless search or seizure. People v. Linley, 388 Ill. App. 3d 747, 749 (2009). “If the defendant makes the required showing, the burden shifts to the State to present evidence to justify the search or seizure.” Id.

[P21] In this case, defendant failed to establish a prima facie case that would have shifted the burden to the State. At the hearing on defendant’s motion to quash and suppress, defense counsel called defendant to testify. Defendant testified only that she recalled being pulled over by the Antioch police on December 20, 2009, at about 9:30 p.m., “by the Advertiser in Antioch”; that there was no warrant for her arrest; and that she was arrested after she took field sobriety tests. After defendant provided this testimony, defense counsel asked the trial court to shift the burden to the State and, after argument, the trial court stated that the burden had shifted.

[P22] Ordinarily, a trial court should find that a defendant has made a prima facie case after the defendant has established that he or she was doing nothing unusual to justify the seizure. See People v. Matous, 381 Ill. App. 3d 918, 923 (2008). Because defendant failed to establish that she was doing nothing unusual to justify the stop, she failed to establish a prima facie case. Thus, the trial court’s determination that the burden shifted to the State was erroneous.

This holding violates the Fourth Amendment. Warrantless arrests presumptively valid with the burden on the defendant to show it was unreasonable? Impossible. Sounds like a third world country. Or the KGB.

Defendant’s consent to entry after repeated efforts to get consent during a knock-and-talk at a hotel room was still valid. They had probable cause, and the threat to get a search warrant was not spurious. United States v. Taylor, 2012 U.S. Dist. LEXIS 148244 (S.D. Ill. October 16, 2012).*

Courts should be reluctant to reopen a suppression hearing after a ruling. Here, it was well after the new information was found. Crediting the new information, the court doesn’t find that it will change the result, so the motion is denied. United States v. Norris, 2012 U.S. Dist. LEXIS 148409 (W.D. Ky. October 16, 2012).*

The CI was known and reliable, and then his information was well corroborated. United States v. Hands, 2012 U.S. Dist. LEXIS 149423 (E.D. N.C. October 15, 2012).*

Nervousness and claiming to have flown from Texas to San Francisco to rent a Mercedes to drive to Chicago for no apparent reason was reasonable suspicion of drug trafficking. Phelps v. State, 2012 WY 87, 278 P.3d 1148 (2012).*

U.S. Court of Federal Claims has no jurisdiction over Fourth Amendment claims against the government. Cox v. United States, 105 Fed. Cl. 213 (2012) [for the 1000th time].

Plaintiff’s Fifth Amendment claims about animal welfare seizure were precluded by a state court action under the Rooker-Feldman doctrine. Her Fourth Amendment claims, however, predated the state court judgment and were not precluded, despite the fact the state court even considered the search and seizure claim. The Fourth Amendment claim may be precluded, but not under the district court’s analysis and more development of the record is required. Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012).*