New Law Review Article: “‘Eyephones’: A Fourth Amendment Inquiry into Mobile Iris Scanning” by Christopher Rutledge Jones, 63 S.C. L.Rev. 925 (2012):

MORIS, or Mobile Offender Recognition and Information System, is a small device that attaches to a standard iPhone and allows a user to perform mobile iris scanning, fingerprinting, and facial recognition. Developed by BI2 Technologies, this device was recently made available to law enforcement agencies in America.

This article discusses the Fourth Amendment implications that arise from use of such a device, and asks whether a reasonable expectation of privacy exists in one’s irises while in public spaces. The article explores past Supreme Court Fourth Amendment jurisprudence regarding the use of technology to enhance senses, abandonment, and the plain view doctrine in an attempt to determine when mobile iris scans would and would not be allowed by the Fourth Amendment.

Without determining the merits of probable cause for cell site location information, the court applies the good faith exception alone. United States v. Hardrick, 2012 U.S. Dist. LEXIS 147940 (E.D. La. October 15, 2012):

Because this Court holds that the good-faith exception to the exclusionary rule applies, see discussion infra, this Court need not reach the issue of whether the obtaining of CSLI is a Fourth Amendment search. See United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010) (“First, we ask whether the seizure falls within the good-faith exception to the exclusionary rule … [i]f the good-faith exception applies, this court affirms the district court’s decision denying the motion to suppress.”); United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988)(“Principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under the good-faith exception of Leon will resolve the matter.”); United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999) (“If the good-faith exception applies, we need not reach the question of probable cause.”); see also United States v. Webb, 255 F.3d 890, 904-05 (D.C. Cir. 2001) (holding that the good-faith exception applied no matter “what may be said of the search warrant affidavit in this case”); Ferguson, 508 F. Supp. 2d at 10 (declining to address a Fourth Amendment challenge after holding that the good-faith exception applied); United States v. Koch, 625 F.3d 470, 476-77 (8th Cir. 2010) (“We need not address [whether there was a Fourth Amendment violation] because we conclude that the agents had an objective good faith belief … that their search was legal.”).

Despite this practice, courts should address the Fourth Amendment issue when “the resolution of a novel question of law … is necessary to guide future action by law enforcement officers and magistrates.” Craig, 861 F.2d at 820-21 (quoting Illinois v. Gates, 462 U.S. 213, 264 (1983) (White, J., concurring in the judgment). Resolution of the Fourth Amendment issue in this case is not necessary to guide law enforcement because the issue is under consideration by the Fifth Circuit. See In re Application of the U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827, 844-46 (S.D. Tex. 2010), appeal docketed, No. 11-20884 (5th Cir. Dec. 14, 2011) (oral argument held on Oct. 2, 2012).

This Court holds that the good-faith exception applies and is dispositive of this motion to suppress. By declining to reach the Fourth Amendment issue this Court is applying the “sound judicial practice of refusing to decide or address issues whose resolution is not necessary to dispose of a case, unless there are compelling reasons to do otherwise.” Craig, 861 F.2d at 820-21.

Officers did a knock-and-talk at defendant’s girlfriend’s house where defendant was spending the night. The trial court erred in holding the defendant lacked standing as an overnight guest, and the case is remanded for reconsideration of the motion to suppress. State v. Winston, 2012 Ohio 4743, 2012 Ohio App. LEXIS 4156 (2d Dist. October 12, 2012).*

The state planted a GPS device pre-Jones, and the defendant moved to suppress. The state failed to properly raise a Davis good faith exception argument and forfeited it. State v. Henry, 2012 Ohio 4748, 2012 Ohio App. LEXIS 4161 (2d Dist. October 12, 2012).*

Defendant’s continued detention became unreasonable, and his consent was tainted. State v. Rogers, 2012 Ohio 4753, 2012 Ohio App. LEXIS 4163 (2d Dist. October 12, 2012).*

Officers had reasonable suspicion for defendant’s stop and continuing it based on wiretap information well before the stop. His consent thereafter was voluntary. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25, 2012).*

Defendant’s Franks challenge fails–there were two officers involved in the affidavit, and, as a whole, it doesn’t show material falsity by an officer. Inconsistencies alone don’t show reckless or intentional falsity. United States v. Lopez, 2012 U.S. Dist. LEXIS 148042 (E.D. Ky. September 13, 2012).*

On defendant’s 2255, he failed to show he had a reasonable expectation of privacy in the place searched to have standing to challenge the search. So, his lawyer was not ineffective for not pursuing it. Beatty v. United States, 2012 U.S. Dist. LEXIS 147967 (D. Mass. October 15, 2012).

Business Insider: Two Supreme Court Cases About Dogs May Profoundly Impact Americans’ Privacy by Michael Kelley:

On Oct. 31, the U.S. Supreme Court will hear two cases from Florida about drug-sniffing dogs that will either affirm or weaken the constitutional privacy rights of Americans.

Rulings favorable to the government would allow law enforcement to conduct warrantless searches and surveillance on an even more routine basis.

NYTimes.com: First Plaintiffs Testify in Federal Challenge to Police Stop-and-Frisk Policy by Joseph Goldstein:

Charles E. Bradley stood outside his fiancée’s fifth-floor apartment at about 5 p.m., the agreed-upon time, and began drumming on the door, he testified Tuesday, re-creating the sound in Federal District Court in Manhattan, his knuckles rat-a-tatting on the witness stand. She did not respond, he said, and so after waiting a moment — she is deaf in one ear — he left.

Mr. Bradley, who is in his early 50s, said he reached the sidewalk on that May evening last year and looked up toward his fiancée’s window. “We were expecting to get together,” he said. “Where is she?”

It was then that a police van pulled up, he said, and within moments an officer was questioning Mr. Bradley and searching his pockets.

The Columbia Science and Technology Law Review: The Fourth Amendment in the Digital Age by Min Choi:

In the old days – and even now, as Occupy Wall Street exemplifies – people took to the streets to protest. But as technology evolved, new forms of demonstrations appeared. One such form is hacking to pursue political ends – hack-activism, or hactivism. A famous example of a hactivist group is Anonymous, whose attacks on government and major corporation websites to protest online surveillance and censorship were widely publicized.

The officer said he was going to patdown the defendant for a weapon after defendant said he had a gun on him which was a violation of Illinois law. It was valid as a search incident, not a patdown. United States v. Lyons, 856 F. Supp. 2d 946 (C.D. Ill. 2012),* reconsideration after conviction denied 2012 U.S. Dist. LEXIS 61379 (C.D. Ill. May 2, 2012).*

Plaintiff’s case was not attempting to invalidate a conviction in another state case, so there was no Heck bar. Plaintiff also barely satisfies a substantive due process claim. Plaintiff’s Fourth Amendment claim doesn’t survive. Andrews v. Bureau of Codes Admin. Office, 2012 U.S. Dist. LEXIS 23835 (M.D. Pa. February 24, 2012).*

Pro se motion to suppress that states no grounds is denied. United States v. Goodrich, 2012 U.S. Dist. LEXIS 25337 (W.D. Mo. February 10, 2012).*

2255 petitioner’s claim that defense counsel was ineffective for not moving to suppress his stop is wrong; defense counsel did. United States v. Davis, 2012 U.S. Dist. LEXIS 25314 (D. Kan. February 28, 2012).*

The inventory search here was unreasonable under the Fourth Amendment because of a lack of evidence of police policy. The officers simply testified that their searches of the wrecker, van, and its contents were inventory searches pursuant to the impoundment. Capellan v. State, 729 S.E.2d 602 (Ga. App. 2012).

Defendant’s consent to a search of her blood for BAC mooted application of the implied consent statute. McMullen v. State, 316 Ga. App. 684, 730 S.E.2d 151 (2012).*

Officers received a report of a reckless driver, and defendant was seen weaving 20 mph under the speed limit. He was stopped and was found under the influence. After the suppression hearing, he raised invalid inventory, but that was after the evidence closed and the trial court wouldn’t hear it. He reraised it in a motion for new trial and it was denied on the merits, and the record supports it. State v. Harvey, 2012 Tenn. Crim. App. LEXIS 486 (June 22, 2011).*

Defendant was in a car with another that was stopped by the police, and the driver gave consent to search. The driver’s consent did not apply to separate luggage in the car that belonged to the passenger, and the officer told defendant that the driver consented so he was searching. The passenger’s silence is not consent. United States v. Blas, 2012 U.S. Dist. LEXIS 147486 (M.D. La. October 11, 2012).

Because of the complete lack of factual allegations from the defendant supporting the motion to suppress, the motion is denied. The government’s response shows justification, and defendant raised no question for a hearing. United States v. Carter, 2012 U.S. Dist. LEXIS 147010 (W.D. N.Y. September 11, 2012).*

No standing in installation of GPS in a car in which defendant was only a passenger. United States v. Merritte, 2012 U.S. Dist. LEXIS 147962 (D. Nev. October 15, 2012).*

Defendant has no right to be arrested only at the earliest possible time. Officers can watch and let the situation develop to see what else happens. United States v. Davis, 2012 U.S. Dist. LEXIS 145849 (D. Neb. September 21, 2012)*:

Law enforcement officers had informant information indicating the defendant was engaged in illegal drug activity during the summer and fall of 2011, and they had probable cause to arrest the defendant when they smelled marijuana and saw drug paraphernalia within his apartment in October of 2011. But the law does not require officers to initiate an arrest when they first have a basis to do so. They may choose to monitor a situation and further investigate, particularly when, based on their education and experience, they believe the magnitude of defendant’s criminal activity exceeds their current basis for arrest.

Defendant calls the affidavit for search warrant bare bones, but the argument picks out pieces and doesn’t consider the affidavit as a whole which does, in fact, show probable cause. United States v. Gumula, 2012 U.S. Dist. LEXIS 146967 (W.D. N.C. June 29, 2012), R&R adopted 2012 U.S. Dist. LEXIS 143697 (W.D. N.C. October 3, 2012).*

Extending a stop by a minute for other questions was not a Fourth Amendment violation (adopting the de minimus standard, without calling it that). United States v. Burrows, 2012 U.S. Dist. LEXIS 146695 (S.D. Ga. October 11, 2012).

A brief handcuffing during a stop just for the frisk and then unhandcuffing defendant was reasonable. Defendant’s consent thereafter was voluntary on the totality. United States v. Quinones-Ortiz, 2012 U.S. Dist. LEXIS 147004 (N.D. Iowa October 11, 2012).*

Defendant has no standing to challenge the seizure of a shotgun thrown from a vehicle fleeing police. United States v. Stanton, 2012 U.S. Dist. LEXIS 145932 (W.D. Pa. October 10, 2012).*

Defendant did not own or was driving the vehicle on which the GPS device was placed, so he lacked standing to challenge the GPS placement. United States v. Smith, 2012 U.S. Dist. LEXIS 147866 (D. Nev. July 24, 2012).

Defendant’s house was subjected to a search warrant for multiple burglaries, and all kinds of property belonging to others was found there. The claim that the defendant’s arrest was without probable cause was frivolous. Kanda v. State, 2012 Del. LEXIS 534 (October 12, 2012).*

The truant juvenile was stopped for violation of the school day curfew after he was told multiple times to go home, so there was reasonable suspicion for a stop. State v. JS , 2012 Del. Fam. Ct. LEXIS 63 (March 28, 2012).*

High crime area with several reported drug deals a month and smell of marijuana coming from defendant’s group justified stop. United States v. Elmes, 2012 U.S. Dist. LEXIS 147256 (D. V.I. October 12, 2012).*

Officers came to defendant with a search warrant for child pornography after an investigation revealed it coming from his IP address. A sweep of the premises was appropriate after the warrant was issued for see if there was an additional person there after they learned others would be present. Nothing suggests defendant’s talking to the officers wasn’t voluntary. United States v. Brashear, 2012 U.S. Dist. LEXIS 147158 (M.D. Pa. October 12, 2012).*

The officer had reasonable suspicion for a traffic stop for a cracked windshield and lane changes. The questioning during the stop was not intrusive and was reasonable. Consent was valid. United States v. Johnston, 2012 U.S. Dist. LEXIS 147207 (S.D. Ohio October 12, 2012).*

The trial court concluded that the seizure of the keys to a pickup truck should be suppressed, and the record supports that finding. Seizure of evidence from the bed of the pickup truck, however, is not a product of the illegal seizure of the keys. Also, a search warrant had been issued for the truck on separate probable case. State v. Ostein, 2012 Tenn. Crim. App. LEXIS 833 (October 9, 2012)*:

The evidence at the suppression hearing was that the Ford F-150’s location and its registration to Dean were confirmed entirely independently of the key and remote seized from Ostein. The uncontradicted testimony was that the keys and remote were not used to locate the truck. Furthermore the truck bed where the evidence was found was locked and had to be pried open because no key on the key ring and remote unlocked the lid. A drug canine “hit” on the bed of the truck, and a confidential informant stated Ostein’s “stash” was in the truck. The Ford F-150 was not searched until after the search warrant had been issued, and the search warrant authorized the officers to search any vehicle, found in proximity to 1314 Acklen Avenue, with a nexus to persons present at 1314 Acklen Avenue. As discussed above, Ostein did not challenge issuance of the search warrant or the search conducted pursuant to the warrant except to allege the search was a fruit of the illegally seized keys and remote. Based upon this evidence and the above-cited law, we conclude that the trial court erred by suppressing the cocaine and money found in the bed of the F-150 pickup truck. The search of the bed of the Ford F-150 was not the fruit of the seizure of keys and remote from Ostein.

“Minnesota’s chemical-test-refusal statute does not violate an individual’s substantive due process rights because an individual does not have a fundamental right under the due process clauses of the United States Constitution and Minnesota Constitution to passively or nonviolently refuse to submit to a constitutionally reasonable police search, and the imposition of criminal penalties for refusing to submit to a properly requested chemical test is a reasonable means to a permissible state objective.” State v. Wiseman, 816 N.W.2d 689 (Minn. App. 2012).*

An allegation of sexual assault on a minor with a reference to photography is enough to show probable cause for production of child pornography. State v. Johnson, 372 S.W.3d 549 (Mo. App. 2012).*

Merely claiming a state constitution violation and citing the section without stating that the search was “unreasonable” did not state a civil claim. The word “unreasonable” is required. Wade v. Ferguson, 2009 Ark. 618 (December 10, 2009)* (Arkansas once again exults form over substance to the point it actually brings disrepute on it as an institution.)

Search of defendant’s shoes after a stop on reasonable suspicion was by consent. Anderson v. State, 2009 Ark. App. 804, 372 S.W.3d 385 (2009).*

There is no state law right to notice of a right to refuse consent during a knock-and-talk. Dow v. State, 2009 Alas. App. LEXIS 178 (November 25, 2009).*

Flight from a stop without reasonable suspicion led to abandonment of a box with cocaine, but it happened in seconds, so the stop was not attenuated from the abandonment. State v. Williams, 410 N.J. Super. 549, 983 A.2d 1114 (2009):

Flight from an unconstitutional investigatory stop that could justify an arrest for obstruction did not automatically justify admission of evidence revealed during that flight. For such evidence to be admissible, there had to be a “significant attenuation” between the unconstitutional stop and seizure of evidence. As only four or five seconds elapsed between the order to stop and defendant’s discarding the cocaine, and there were no significant “intervening circumstances” between the two events, the State failed to show significant attenuation.

New law review article: GPS Tracking Out of Fourth Amendment Dead Ends: United States v. Jones and the Katz Conundrum, 91 N.C. L. Rev. (forthcoming 2012), by Fabio Arcila, Jr.:

United States v. Jones, which reviewed the Fourth Amendment constitutionality of warrantless GPS tracking, may be the most important Fourth Amendment opinion since the Supreme Court decided Katz v. United States over four decades ago. Though Katz has dominated Fourth Amendment jurisprudence, it introduced significant ambiguities, such as the conundrum concerning whether a privacy or property model is controlling. Jones was a highly anticipated decision because it was widely understood that it might have ramifications for numerous core Fourth Amendment doctrines, including the Katz conundrum, and in turn for many governmental activities either currently or potentially subject to the Fourth Amendment. Examples include routine criminal law enforcement investigations, technological surveillance for either criminal or civil purposes (through GPS but also other means, such as location tracking capabilities embedded in individuals’ cellular telephones), and national security, to name but a few.

NPR: Who Feels The Scars Of ‘Stop And Frisk’?:

The New York City council Wednesday held a hearing about blocking the controversial “stop and frisk” policy. That allows police to stop, search, and question people suspected of carrying weapons or drugs. It’s also the subject of a New York Times short film. Host Michel Martin speaks with a producer and a young man featured in the film.

See also The Nation: Stopped-and-Frisked: ‘For Being a F**king Mutt’ [VIDEO] by Ross Tuttle and Erin Schneider:

Exclusive audio obtained by The Nation of a stop-and-frisk carried out by the New York Police Department freshly reveals the discriminatory and unprofessional way in which this controversial policy is being implemented on the city’s streets.

On June 3, 2011, three plainclothes New York City Police officers stopped a Harlem teenager named Alvin and two of the officers questioned and frisked him while the third remained in their unmarked car. Alvin secretly captured the interaction on his cell phone, and the resulting audio is one of the only known recordings of stop-and-frisk in action.

The Republic: Critics call for ‘no’ vote vs. Ind. high court justice; say ruling denied 4th Amendment right by Charles Wilson:

INDIANAPOLIS — An Indiana Supreme Court justice who wrote a ruling that set off a public uproar and provoked legislators into passing a new state law faces rare opposition in a routine retention vote.

Justice Steven David must pass a simple yes-or-no vote in the Nov. 6 election to keep his seat on the state’s highest court. Experts say Indiana judges survive them more often than not.

But opponents, from tea party activists to Libertarians, want David ousted over a 2011 decision he wrote asserting Indiana residents didn’t have the right to resist the police, even if the officers illegally enter their homes. Critics said the 3-2 decision contradicted the Fourth Amendment, which requires police to obtain a court warrant, and violated citizens’ centuries-old right to defend their homes.