No-knock provision in this search warrant was supported only by generalizations about drug dealers, and the accused here was only suspected of being a user. Entry was unreasonable. State v. Cash, 316 Ga. App. 324, 728 S.E.2d 918 (2012):

The affidavit and evidence presented in this case are remarkably similar to that presented in our recent decision in Barnett, supra, 314 Ga. App. at 17-20, where we held that the blanket provisions based on the agent’s generalized experience in drug investigations were insufficient to justify a “no-knock” provision in a search warrant. Here, as in Barnett, the affidavit requested a “no-knock” search warrant based upon the agent’s general experience that drug evidence can be easily destroyed and that drug suspects commonly possess firearms. See Barnett, supra, 314 Ga. App. at 19. While the affidavit stated that the drug suspect had been in the military and likely had “knowledge” regarding firearms, there was no indication that the drug suspect or any occupant of the residence possessed a firearm. The affidavit also failed to set forth any information indicating that the drug suspect had packaged or located the drugs in the residence for quick disposal. In sum, the affidavit and evidence in this case failed to present any particular facts and circumstances justifying a “no-knock” provision, and instead, was based entirely upon generalizations. Consequently, the “no-knock” provision was invalid, which rendered the execution of the warrant without knocking and announcing illegal and supported the trial court’s decision granting the motion to suppress. See Barnett, supra, 314 Ga. App. at 20; Poole, supra, 266 Ga. App. at 114-119 (1).

Defendant was serving in the Army in Iraq during Operation Iraqi Freedom and was stationed at a forward base. He lived in a rucksack with a roommate. His roommate got on his computer to look for a movie to download and watch, but he found child pornography telling their superiors what he found. That was a private search, but a second “unauthorized” search wasn’t and was unreasonable. Nevertheless, the inevitable discovery doctrine saves the search. United States v. Spiess, 2012 CCA LEXIS 371 (Army Ct. Crim. App. September 28, 2012):

Although the initial discovery of appellant’s child pornography was not in violation of the Fourth Amendment, we conclude that the subsequent, unauthorized search of appellant’s external hard drive was unlawful. See Mil. R. Evid. 313-315. Sergeant First Class DH’s direction and participation in SPC JC’s subsequent search of appellant’s external hard drive amounted to a government intrusion into appellant’s reasonable expectation of privacy. The military judge’s findings of fact with regard to the 23 February 2009 search engaged in by SPC JC and SFC DH are supported by the record and as such are not clearly erroneous. However, in applying the law to these facts, the military judge erroneously concluded that SFC DH’s involvement did not transform what was previously a private search by SPC JC into a governmental intrusion. In this respect, the military judge’s application of the law to the facts was clearly erroneous.

On appeal, the government urges us to consider United States v. Daniels (Daniels II), 60 M.J. 69 (C.A.A.F. 2004), in support of the military judge’s finding of a private, non-governmental intrusion. The Daniels case turned on whether a government official encouraged, endorsed, or participated in a third party’s search such that the third party became an agent for the government official. The government correctly notes the applicability of Daniels to the instant case, but a review of Daniels reveals that it does not support the government’s argument of private action.

. . .

3. Inevitable Discovery Exception to the Exclusionary Rule

Although SPC JC’s and SFC DH’s unauthorized search violated the Fourth Amendment, we nonetheless conclude appellant was not prejudiced by the military judge’s ruling to the contrary. We hold that the child pornography found on appellant’s external hard drive pursuant to the unlawful search would have been inevitably discovered and was therefore admissible against appellant at his court-martial.

As previously noted, SPC JC’s actions on 22 February 2009 were private in nature and thus did not trigger Fourth Amendment protections for any of the information discovered during that search. Thus, the evidence discovered by SPC JC in his private capacity could have been lawfully used to support a search authorization-assuming it established probable cause-which, in turn, could have led to the lawful search and seizure of appellant’s hard drive. However, absent probable cause to believe appellant’s computer contained child pornography, “there could be no application of the doctrine of inevitable discovery in this case.” Dease, 71 M.J. at 121-22 (citations omitted).

Mobiledia.com: In Brief: GPS, Cell Records and Warrants, Oh My! by Margaret Rock:

Can your phone’s location data be used as evidence in court trials? The Supreme Court and the Obama administration are wrangling over the issue, and the fallout will shape the legal landscape for years to come.

When the Supreme Court made the highly-anticipated ruling earlier this year that law enforcement’s placement of a GPS tracking device on a suspect’s vehicle violated the Fourth Amendment’s protection against unreasonable search and seizure, nobody, much less the average person, was sure of the far-reaching ramifications.

During the case’s subsequent re-trial briefings, both the federal government and the defense team brought issues to light, forcing the courts and the wireless industry to re-examine what information and records — like GPS data and cell phone records — constitute a “search,” and establish when law enforcement needs a warrant to access the data as the courts navigate the digital frontier.

In a rare clearly erroneous finding, the Fourth Circuit finds no support at all for the district court’s [overly solicitous] finding of probable cause. The speeding stop here was without probable cause, and the district court’s conclusion that the officer could estimate speed at 75 in a 70 zone, intentionally not using radar, was clearly erroneous. The finding that the officer was trained to estimate speeds was unsupported by the record. The finding that the officer’s inability to determine distances also made the findings “absurd” because time and distance are required to measure speed. United States v. Sowards, 690 F.3d 583 (4th Cir. 2012):

However, the Fourth Amendment does not allow, and the case law does not support, blanket approval for the proposition that an officer’s visual speed estimate, in and of itself, will always suffice as a basis for probable cause to initiate a traffic stop. Instead, for the purposes of the Fourth Amendment, the question remains one of reasonableness. Critically, and as further explained below, the reasonableness of an officer’s visual speed estimate depends, in the first instance, on whether a vehicle’s speed is estimated to be in significant excess or slight excess of the legal speed limit. If slight, then additional indicia of reliability are necessary to support the reasonableness of the officer’s visual estimate.

Seizure of a notebook under an administrative search warrant that did not authorize seizure of anything was unreasonable. The officers relying on the direction of others are entitled to qualified immunity, but the ones directing them are not. Partial invalidity of the seizure doesn’t affect legality of the warranted search. Elkins v. D.C., 690 F.3d 554 (D.C. Cir. 2012):

But Groh cannot mean that every search warrant that fails to describe items to be seized is invalid. The requirements for a warrant vary based on the purpose for which it is sought, Michigan v. Clifford, 464 U.S. 287, 294-95 (1984) (plurality opinion), and the purpose of the search determines the requisite level of particularity, cf. Groh, 540 U.S. at 557 (finding the warrant invalid because it “provided no description of the type of evidence sought”). Not all searches have seizures in mind. For example, the law has long accepted the use of search warrants to conduct “a routine inspection of the physical condition of private property” in order to ensure compliance with building codes, rather than to seize items. See Camara v. Mun. Court of San Francisco, 387 U.S. 523, 530 (1967). It would make no sense to require a warrant to list items to be seized when the sole purpose of the search is to conduct an inspection, without seizing anything.

The Court followed these principles in Groh, holding the search to seize firearms unlawful because the warrant said nothing about them. See Groh, 540 U.S. at 563 (explaining that the defendant could be held liable for the search because he “did not have in his possession a warrant particularly describing the things he intended to seize” (emphasis added)). Here, the District officials sought only to gain entry to Elkins’s home to see whether unlicensed construction work was being performed. The warrant listed her address and explained that the search was for “unlicensed construction work which is in violation of the Construction Codes.” Defs.’ Mot. to Dismiss Ex. 10. There is no indication that the officials envisioned seizing any documents when they sought the warrant. Instead, as explained in more detail below, the record shows the seizure of documents was a spur-of-the-moment response to the instructions of an MPD officer made during the search. See, e.g., Elkins Decl. ¶ 24; Noble Dep. 39:7-41:9, 101:15-104:16, June 10, 2008. Given this context, the warrant’s language was sufficiently particular. An administrative search warrant need not describe things to be seized when none are meant to be seized. Of course, any seizures made during the search that do not fall within an exception to the warrant requirement are unconstitutional. But such missteps do not render the entire search illegal.

This is an interesting case on qualified immunity, too.

Real time capturing data to trace a “pay-as-you-go cell phone” was not a Fourth Amendment violation because there no reasonable expectation of privacy in that data coming from the phone to the provider. This is no different that just tailing the defendant. United States v. Skinner, 690 F.3d 772, 2012 FED App. 0864P (6th Cir. 2012):

When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them. This is not a case in which the government secretly placed a tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross country shipment of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.

The government used data emanating from Melvin Skinner’s pay-as-you-go cell phone to determine its real-time location. This information was used to establish Skinner’s location as he transported drugs along public thoroughfares between Arizona and Tennessee. As a result of tracking the cell phone, DEA agents located Skinner and his son at a rest stop near Abilene, Texas, with a motorhome filled with over 1,100 pounds of marijuana. The district court denied Skinner’s motion to suppress all evidence obtained as a result of the search of his vehicle, and Skinner was later convicted of two counts related to drug trafficking and one count of conspiracy to commit money laundering. The convictions must be upheld as there was no Fourth Amendment violation, and Skinner’s other arguments on appeal lack merit. In short, Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location.

. . .

No such extreme comprehensive tracking is present in this case. Justice Alito’s concurrence and the majority in Jones both recognized that there is little precedent for what constitutes a level of comprehensive tracking that would violate the Fourth Amendment. Id. at 954, 964. Skinner’s case, however, comes nowhere near that line. While Jones involved intensive monitoring over a 28-day period, here the DEA agents only tracked Skinner’s cell phone for three days. Such “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.” Id. at 964 (Alito, J., concurring) (citing Knotts, 460 U.S. at 281–82). Here, the monitoring of the location of the contraband-carrying vehicle as it crossed the country is no more of a comprehensively invasive search than if instead the car was identified in Arizona and then tracked visually and the search handed off from one local authority to another as the vehicles progressed. That the officers were able to use less expensive and more efficient means to track the vehicles is only to their credit.

WSJ: Sixth Circuit: No Expectation of Privacy in Cell Phone GPS Data; Skinning the Fourth Amendment: The Sixth Circuit’s Awful GPS Tracking Decision by Julian Sanchez, Volokh Conspiracy: Sixth Circuit Rules That Pinging a Cell Phone to Determine Its Location is Not a Fourth Amendment “Search” by Orin Kerr.

Posner on consent and common authority of a niece who was defendant’s longstanding house and baby sitter who had the run of the place. They could examined the extremes and policy considerations and found she fell on the side of being in loco parentis to the child, and, thus, the house. United States v. Garcia, 690 F.3d 860 (7th Cir. 2012):

The question of the authority of someone not the occupant of a home to consent to a search of it arises frequently but has never received a crisp general answer and probably never will. The courts typically ask whether the nonoccupant who consented had “common authority [that is, authority in common with the occupant] over or other sufficient relationship to the premises” to allow the nonoccupant to consent to a search. United States v. Matlock, 415 U.S. 164, 171 (1974); United States v. Ryerson, 545 F.3d 483, 487 (7th Cir. 2008); United States v. Groves, 470 F.3d 311, 318-19 (7th Cir. 2006); United States v. Cos, 498 F.3d 1115, 1124 (10th Cir. 2007). This is a pretty empty formula. It restates the question rather than answering it. A little more helpful, though still vague, is another formulation in Mattock: “mutual use of the property by persons generally having joint access or control for most purposes.” 415 U.S. at 171 n. 7; see, e.g., United States v. Cos, supra, 498 F.3d at 1125. Sharing a home is the clearest example of such joint access and control. See 4 Wayne R. LaFave, Search and Seizure § 8.3(a), pp. 148-49 (4th ed. 2004). But what of the common case in which someone besides the occupant or occupants of a house or an apartment or other premises—someone who does not live there (if it’s a residence rather than an office)—has a key to it: a neighbor, a relative, a cleaning service, a babysitter, a dog walker, the person who feeds the cat when the homeowner is away, the building superintendent, hotel staff (if one is staying at a hotel—and some people live in hotels), or other institutional staff (many people live in retirement or nursing homes).

If anyone with a key can permit police to search a person’s home, office, hotel room, or other place of occupancy, personal privacy would be considerably diminished. Courts understandably refuse to grant the police such carte blanche. It is different, however, if an employee, relative, or neighbor is left in charge of the premises. See United States v. Ayoub, 498 F.3d 532, 539 (6th Cir. 2007); LaFave, supra, § 8.5(e), p. 235; id., § 8.6(c), pp. 248-49. Difficult as it is to draw the line, we can at least mark the extremes—at one extreme a couple married or unmarried (so much cohabitation today is nonmarital) sharing a home. Each spouse or partner has the full run of the house. Each can let anyone in and authorize the visitor to look around—even to look in a closet. At the other extreme are the neighbor who has a key, the babysitter, the hotel staff: their authority over the place of residence is specific and limited; they are not authorized to compromise the resident’s privacy beyond what they have to do to perform their authorized tasks. If such persons could authorize a police search, personal privacy would be gravely compromised because the average person would be afraid to refuse a police officer’s request to let them into a house to which the person had a key, to search.

We think the facts of the present case as found by the district judge place it slightly nearer the cohabitation pole. …

The defendant’s lawyer describes the niece as a mere babysitter. She was more than that. Although neither she nor her mother lived in the defendant’s apartment, when they were there they were in loco parentis. Had the child’s mother lived there, her authority to allow the search could not have been questioned. The defendant’s aunt and niece together were not quite a surrogate mother, but neither were they just neighbors with a key. That the defendant kept a large quantity of cocaine in a closet of this small apartment suggests that he reposed an unusual degree of trust in his aunt and niece and thus had delegated to them a large measure of authority over the apartment when he was not there.

The search warrant here was based in part on a trash pull which the magistrate found as a fact was at the curb and not on the curtilage so there was no expectation of privacy in it. And, even if that information were deleted from the application for the warrant, there still was probable cause. The magistrate’s finding as to the good faith exception was thus moot. Notably, there was a prior trash pull where the police entered the curtilage. That was suppressed, and there still was enough in the application for the warrant. United States v. Rodgers, 2012 U.S. Dist. LEXIS 13865 (E.D. N.C. February 6, 2012).*

“When Trooper James asked Stanfield for consent to search the van, Stanfield informed Trooper James that the van was not his, and eventually refused to consent to a search. At that point, the purpose of the traffic stop was complete. From that point forward, Trooper James’s interaction with Defendants changed. He approaches the situation as though he suspects that criminal activity is afoot.” Thus, there had to be reasonable suspicion to continue the stop. Here there was. The stop lasted two hours. United States v. Goss, 852 F. Supp. 2d 871 (W.D. Mich. 2012).*

“In a case of mistaken identity, Michael Dwayne Durham was charged and jailed in southwest Virginia for more than three months before the prosecutor realized and rectified the error. As a result, Durham initiated this civil action in the Western District of Virginia against, inter alia, officer David L. Horner, alleging a Fourth Amendment claim under 42 U.S.C. § 1983, plus a state law claim for malicious prosecution. The district court awarded summary judgment to Horner on the basis of qualified immunity, and Durham appeals. See Durham v. Horner, No. 2:09-cv-00012 (W.D. Va. Dec. 7, 2010) (the ‘Opinion’). As explained below, we affirm.” Here, there was no showing of malice or ill-will against the plaintiff. Durham v. Horner, 690 F.3d 183 (4th Cir. 2012), affg Durham v. Horner, 759 F. Supp. 2d 810 (W.D. Va. 2010). [Note: Try explaining this to a citizen. It can’t be done. I get a call a week from somebody who wants to sue when charges were dropped or they were acquitted. It takes considerably more than just getting out of it.]

A frantic woman was worried about her children locked in the house with defendant. The district court’s finding of consent to enter was supported by the evidence. Moreover, there was sufficient evidence of exigency and the entry was not made to arrest or investigate a crime. State v. Morin, 2012 ND 75, 815 N.W.2d 229 (N.D. 2012).*

On staleness, “evidence of the manufacture of methamphetamine is closer to a regenerating conspiracy than a chance encounter in the night. On the continuum of long-versus short-term criminal operations, the manufacture of methamphetamine lies somewhere between growing marijuana and selling or consuming drugs.” It was at a residence, “the alleged criminals were entrenched rather than nomadic.” United States v. Redmond, 475 Fed. Appx. 603, 2012 FED App. 0405N (6th Cir. 2012).*

The search of defendant’s bedroom was valid by his mother’s consent while he was present and not objecting, and the seizure of bomb-making materials was valid. While officers were there, he admitted to blowing up pipe bombs in the woods. It was reasonable to issue a search warrant for the room after that for plans and other documents about how to make bombs. Bay v. Commonwealth, 60 Va. App. 520, 729 S.E.2d 768 (2012).*

Defendant litigated his suppression issue through direct appeal, so it can’t be religitated in his § 2255. Sims v. United States, 2012 U.S. Dist. LEXIS 109478 (W.D. N.C. August 6, 2012).*

“Failure to raise a losing argument is not ineffective assistance of counsel.” Here, the facts of the search were in the plea agreement, and that alone was sufficient to sustain the search. United States v. Hayes, 2012 U.S. Dist. LEXIS 111165 (E.D. Wis. August 8, 2012).*

Search warrant for a vehicle for evidence that defendant was DWI permitted seizure of the vehicle’s “black box.” Taylor v. State, 94 So. 3d 298 (Miss. App. 2011), cert. den. 2012 Miss. LEXIS 371 (Aug. 2, 2012):

P36. Taylor concedes that the search warrant was reasonable at its inception. Taylor’s argument is based on the premise that the search warrant authorized the seizure of two “strictly limited” types of evidence: “biological evidence on the outside of the vehicle, linking Taylor’s vehicle to [William] … and evidence in the inside of the vehicle attempting to show that Taylor was intoxicated at the time of the incident.” Taylor argues that: “Respectfully, there is no way that an officer, reading the language of the warrant in question, could reasonably think that he or she would be allowed to cut open the floorboard of Taylor’s vehicle, and remove the black box.”

P37. The State argues that the search warrant should not be interpreted as pertaining to only two categories of potential evidence. The State points out that the search warrant stated that “items to be search[ed] for include, but are not limited to” the items that were expressly stated in the search warrant. According to the State, the language in the search warrant should be interpreted as including any data stored in the black box that demonstrated: (1) Taylor was intoxicated at the time she hit and killed William, or (2) Taylor was driving in a negligent manner when she hit and killed William.

P38. The search warrant specifically stated that the resulting search was “[t]o include items inside the vehicle.” We do not interpret the language in the search warrant as authorizing the seizure of two strictly limited categories of evidence, as Taylor argues. Instead, we interpret the search warrant as authorizing the seizure of any evidence that tended to demonstrate that Taylor was intoxicated at the time she hit and killed William. The black box and the data within it contained information that would assist in that regard. We find no merit to this issue.

2. THE DATA WITHIN THE BLACK-BOX

P39. Taylor’s second argument pertains to the admissibility of the data within the black box. Her argument is grounded on the concept that, because the black box was not within the scope of the search warrant, the data within the black box should be excluded from evidence as “fruit of the poisonous tree.” However, we have determined that there is no merit to Taylor’s argument regarding the seizure of the black box. It follows that there is no merit to this assignment of error.

How a vehicle’s black box would tend to show that the driver was under the influence is really a stretch. All it shows is physical data about the movement of the vehicle, not the condition of the driver. Even the good faith exception should not cover this because the black box is not even named in the warrant, which would have been easy to put in the warrant since the officer decided to get the information out of it, he had to know there was one on the car. If he didn’t know until later, it would have been easy to get another warrant, based on the PC from the first SW.

Reaching into defendants underwear to seize drugs as a search incident was reasonable. It was not a strip search. Foxworth v. State, 94 So. 3d 1178 (Miss. App. 2011):

P6. While a search incident to arrest can exceed the scope of some other warrantless searches, the scope of the search is not limitless. “As intrusiveness increases, the amount of suspicion necessary to justify the search correspondingly increases.” United States v. Vega-Barvo, 729 F.2d 1341, 1344 (11th Cir. 1984). There are certain limitations regarding the use of strip searches. While a strip search has not specifically been defined by Mississippi common law, surrounding jurisdictions have addressed the term. A strip search has been defined as “any exposure or observation of a portion of a person’s body where that person has a ‘reasonable expectation of privacy.’” Doe v. Calumet City, Ill., 754 F. Supp. 1211, 1215 n.9 (N.D. Ill. 1990) (citation omitted). A strip search has also been defined as “the removal of the arrestee’s clothing for inspection of the under clothes and/or body.” State v. Nieves, 383 Md. 573, 861 A. 2d 62, 70 (Md. 2004) (citing William J. Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U. Miami L. Rev. 665, 667 (2000)). Black’s Law Dictionary 1469 (9th Ed. 2009) defines a strip search as a “search of a person conducted after that person’s clothes have been removed, the purpose [usually] being to find any contraband the person might be hiding.”

P7. In this case, Officer Keckler reached inside Foxworth’s pants and undergarments to remove an item he believed to be a controlled substance. At no point was Foxworth forced to remove any clothing. There is also no indication that any part of his body was ever exposed to the public. He remained fully clothed during the entire search. The Mississippi Supreme Court has upheld cases where the officer pulled a bag out of the defendant’s belt line and also where officers retrieved evidence from the pocket of the defendant. See Ellis, 573 So. 2d at 725; Johnson v. State, 999 So. 2d 360, 365 (¶23) (Miss. 2008). While those cases do not directly address the issue of a strip search, the conduct of the police officers in those cases was found to be appropriate. The actions taken by Officer Keckler are similar to the conduct in those cases. He simply retrieved evidence from inside Foxworth’s clothing. Because no strip search occurred and the search incident to arrest was appropriate, we find no error.

Remember the first episode of FX’s “The Shield”? In the opening scene, Vic Mackey yanks down a suspect’s pants and removes drugs from his genitalia. That was in an alley.

Defendant was removed from the premises and then his co-tenant was asked for consent. The court disagrees with the Ninth Circuit in United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008), as have most other courts. People v. Fernandez, 208 Cal. App. 4th 100, 145 Cal. Rptr. 3d 51 (2d Dist. 2012):

We believe that the line we draw is consistent with that drawn by the Supreme Court in Randolph. As in Randolph, the line we draw is a clear one, distinguishing between cases in which a defendant is present and objecting to a search, and those in which a defendant has been lawfully arrested and thus is no longer present when a cotenant consents to a search of a shared residence. It thus preserves the “simple clarity of complementary rules” established by Randolph. (Randolph, supra, 547 U.S. at p. 121.)

Further, our rule preserves the law enforcement prerogatives recognized by Randolph. As we have said, Randolph expressly reaffirmed the holdings of Matlock and Rodriguez, noting that “it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received.” (Randolph, supra, 547 U.S. at p. 122.) We believe that requiring officers who have already secured the consent of a defendant’s cotenant to also secure the consent of an absent defendant would similarly and needlessly limit the capacity of law enforcement to respond to “ostensibly legitimate opportunities in the field.” (Ibid.)

We note, as the Seventh Circuit did in Henderson, that the rule advocated by defendant and adopted by the Ninth Circuit in Murphy permits “a one-time objection” by one cotenant to “permanently disable the other [co-tenant] from ever validly consenting to a search of their shared premises.” (Henderson, supra, 536 F.3d at p. 783.) Like Henderson, we think such a rule “extends Randolph too far.” (Ibid.)

Every circuit seems to have rejected Murphy, so the Ninth Circuit en banc may overrule it.

Flight + reasonable suspicion = probable cause. United States v. Williams, 475 Fed. Appx. 36, 2012 FED App. 0375N (6th Cir. 2012):

Once Officer Edwards approached Williams and informed him that he was a police officer, Williams fled. Williams continued to run even after being chased and being told to stop multiple times. The officers’ reasonable suspicion ripened into probable cause once Williams fled. See Dotson, 49 F.3d at 230-31; McCoy, 155 F. App’x at 201-02; Bowden, 1997 U.S. App. LEXIS 19153, at *9.

Defendant’s “newly discovered evidence” for attempting to reopen the suppression hearing was cumulative at best and would not change the court’s conclusion. United States v. Hawkins, 2012 U.S. Dist. LEXIS 48851 (D. Colo. April 5, 2012).*

The district court was within its discretion in determining that defendant’s admitted legal research made his testimony tailored to the law. United States v. Frisby, 474 Fed. Appx. 865 (3d Cir. 2012):

We also reject Frisby’s argument that the District Court discredited his testimony simply because he conducted independent legal research. Rather, a review of the hearing transcript reveals that the District Court recognized that, given Frisby’s prior research and the specific use of the word “seized” during his testimony, Frisby may have tailored his testimony to favor his legal position.

TSA screeners are not law enforcement officers for purposes of the Federal Tort Claims Act. Weinraub v. United States, 2012 U.S. Dist. LEXIS 113480 (E.D. N.C. August 13, 2012), recognizing Pellegrino v. United States, 2012 WL 661773 (E.D. Pa. 2012) is contra.*

A school resource officer was acting as a police officer enforcing the law when he arrested defendant in the boys bathroom holding a bag of marijuana. A search incident of his backpack was otherwise unreasonable under Washington law, and it was suppressed. State v. Meneese, 174 Wn.2d 937, 282 P.3d 83 (2012) (dissent).*

The record supports the conclusion that defendant consented to a search of his duffle bag for evidence of shoplifting. The encounter was recorded on audio, and defendant did not audibly respond to the officer’s statement he needed to search the duffle bag, and the consent was unrestricted. Defendant did not testify. The officers suspected defendant of being an airport shoplifter after a store owner identified him as stealing something the day before. Berezyuk v. State, 282 P.3d 386 (Alas. App. 2012).*

Dog alert on car justified a patdown of the driver and passenger. State v. Williams, 2011 Ohio 763, 2011 Ohio App. LEXIS 657 (4th Dist. February 15, 2011).

Gant could not be used as a new rule of criminal procedure to reopen post-conviction proceeding nine years later. Besides, the search was with probable cause. People v. Tripp, 407 Ill. App. 3d 813, 348 Ill. Dec. 452, 944 N.E.2d 405 (2011).*

Law requiring putting stickers on a car to identify the driver as under 21 did not violate, inter alia, the Fourth Amendment because there is no reasonable expectation of privacy in the age of the operator. Trautmann v. Christie, 418 N.J. Super. 559, 15 A.3d 22 (2011), aff’d per curiam 211 N.J. 300, 48 A.3d 1005 (2012).

State just barely showed reasonable suspicion. Defendant was walking back and forth near a closed business in a high crime area late at night with his hand in his pocket.
State v. Francis, 60 So. 3d 703 (La. App. 4th Cir. 2011):

[W]e are unable to conclude that the trial court abused its discretion in finding under the totality of the circumstances that the officers had reasonable suspicion to warrant their belief that Mr. Francis was involved in (or was about to be involved in) some kind of criminal activity. These circumstances demonstrate at least a minimal level of reasonable suspicion to interfere with Mr. Francis’ freedom of movement and to support a valid stop. Thus, we do not find that the trial court abused its discretion in finding that the officers had reasonable suspicion for the stop.

Police investigating a kidnaping placed a GPS on defendant’s car pre-Jones, and this was valid under Davis because of settled circuit law. United States v. Nelson, 2012 U.S. Dist. LEXIS 103944 (S.D. Ga. July 25, 2012).

An anonymous tip of marijuana at a house led to a knock-and-talk and consent which was not coerced. Officers could smell it and see paraphernalia when the door was opened. State v. Delgado, 92 So. 3d 314 (Fla. App. 3d DCA July 25, 2012).*

Detention of the defendant while a search warrant was being executed on his premises was reasonable. State v. Wilburn, 93 So. 3d 1115 (Fla. App. 4th DCA 2012).*

This was a armored car robbery with the killing of the guard and a car jacking to escape. Defendant was wounded and ended up in the hospital. A police officer was with him and saw his clothing in a bag under his bed. The seizure of the bag was not unreasonable. Defendant was considered a shooting victim until the police knew more. The DNA testing of the clothing, however, was unreasonable because DNA testing is a significant invasion of privacy. Because the police were all operating in good faith reliance on a statute that says that DNA is retained, the good faith exception applies to the testing of the DNA. United States v. Davis, 690 F.3d 226 (4th Cir. 2012) (2-1) [this is a thoughtful and educational opinion]:

Nevertheless, we are persuaded by the Supreme Court’s analysis in Skinner, as applied in Mitchell and other cases in the context of DNA, that the extraction of DNA and the creation of a DNA profile result in a sufficiently separate invasion of privacy that such acts must be considered a separate search under the Fourth Amendment even when there is no issue concerning the collection of the DNA sample. See Mitchell, 652 F.3d at 407 (citing United States v. Sczubelek, 402 F.3d 175, 182 (3d Cir. 2005) (citing Skinner, 489 U.S. at 616)).

Based on the foregoing, we conclude that the holding in Edwards does not give a law enforcement agency carte blanche to perform DNA extraction and analysis derived from clothing lawfully obtained from the victim of a crime in relation to the investigation of other crimes. Instead, a victim retains a privacy interest in his or her DNA material, even if it is lawfully in police custody. Therefore, we conclude that the extraction of Davis’ DNA sample from his clothing and the creation of his DNA profile constituted a search for Fourth Amendment purposes.

We turn to consider whether a separate search occurred when the PGCPD retained Davis’ DNA profile in the local CODIS database after the profile did not implicate him in the Neal murder. Our sister circuits do not appear to be uniformly settled on the question whether such entry of a DNA profile into this type of database is a search entitled to Fourth Amendment protection. Compare, e.g., Boroian v. Mueller, 616 F.3d 60, 67-68 (1st Cir. 2010) (concluding that the retention and later matching of a lawfully obtained DNA profile is not a search for Fourth Amendment purposes and collecting authority for the same) with United States v. Amerson, 483 F.3d 73, 85 (2d Cir. 2007) (in addition to the collection of the DNA sample from a probationer, determining that “[t]here is … a second and potentially much more serious invasion of privacy occasioned by the DNA Act” because the “analysis and maintenance of [offenders’] information in CODIS … is, in itself, a significant intrusion”) (citation omitted) and Kincade, 379 F.3d at 841-42 (en banc) (Gould, J., concurring) (suggesting the retention of a lawfully obtained DNA profile once a person has “fully paid his or her debt to society” and “left the penal system” would implicate the person’s privacy interest).

These differing conclusions illustrate the fact that at least some courts have concluded that once a DNA profile has been lawfully obtained and entered into CODIS, the retention of that profile and “periodic matching of the profile against other profiles in CODIS for the purpose of identification[,]” is not a search because it does not intrude upon an offender’s legitimate expectation of privacy. Boroian, 616 F.3d at 67-68 (so holding and citing other authority for the same). Other courts, at least in principle, have left open the possibility that an unrelated examination after DNA retention could be a separate search for Fourth Amendment purposes. See, e.g., Amerson, 483 F.3d at 85 n.12.

. . .

We need not choose among these competing principles in this case because, as discussed in the next section, we conclude that the extraction and initial testing of Davis’ profile was an unreasonable Fourth Amendment search. Accordingly, for purposes of this opinion, we will assume, without deciding, that Davis had a continuing right of privacy in his DNA profile, and that a search occurred in the retention of that profile. We now turn to consider the issue whether the two searches were reasonable.

. . .

In balancing these competing interests to determine the reasonableness of the searches at issue, we are guided by the weighty reasons underlying the warrant requirement: to allow a detached judicial officer to decide “[w]hen the right of privacy must reasonably yield to the right of search,” and not “a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 13-14 (1948) (quoted in Davis, 657 F. Supp. 2d at 653.) The right protected is “a right of personal security against arbitrary intrusions by official power.” Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971). The importance of the judge or magistrate in the process is why the exceptions to the warrant requirement are “jealously and carefully drawn.” Id.

. . .

In short, the obtaining and testing of Davis’ DNA from his bloody clothing, and the subsequent inclusion of his DNA profile in the database were, at best, “isolated negligence attenuated from the arrest” [for the Schwindler murder]. See Herring, 555 U.S. at 137. We have no proof before us showing that victims’ DNA profiles or individuals cleared of suspicion in an investigation are routinely entered into the local database by PGCPD, or have been entered into the database in any other instance. There is nothing in the record to suggest that the acts here are likely to reoccur. Moreover, the particularly unusual facts of this case—where a victim, with a dual status as an arrestee, later becomes a suspect in an unrelated crime, and there is DNA evidence available as a result of the crime in which the person was a victim—diminish further the likelihood of reoccurrence. The price to society of application of the exclusionary rule here, especially since the DNA evidence against Davis was compelling, would be to allow a person convicted of a deliberate murder to go free. The deterrent effect, if any, would be minimal, especially considering the lack of culpable conduct on the part of the police. Exclusion, therefore, would not “pay its way.” See Davis, 131 S. Ct. at 2428.

For the foregoing reasons, the good faith exception to the exclusionary rule applies and we affirm the district court’s denial of Davis’ motion to suppress.