Officers received a tip that defendant, a pharmacist, had child pornography on a computer. They investigated as best they could and found no support for it. A year later, officers came to his house and, after knocking for several minutes did not bring him to the door, they supposedly feared that he could be ill or worse. Their knocking woke his next door neighbor. Officers entered through a partially open and unlocked sliding glass door and heard moaning. With guns drawn they found defendant nude on an air mattress and unarmed. He said he would talk to them after he got dressed and he’d meet them outside. They went back outside, and he came outside. They never looked at or touched anything. By this time, a child pornography investigator was at the house. Defendant agreed to an entry, and it was admittedly by consent. The court found the second entry was attenuated from the initial entry, valid or not. This was a classic knock-and-talk. United States v. Smith, 688 F.3d 730 (11th Cir. 2012):

In undertaking this [Herring exclusionary rule] analysis, “[w]e are obliged to determine whether the consent was ‘sufficiently an act of free will to purge the primary taint of the unlawful invasion,’ or, alternatively, whether the causal connection had ‘become so attenuated as to dissipate the taint.'” Delancy, 502 F.3d at 1309 (quoting Wong Sun, 371 U.S. at 486-87, 83 S. Ct. at 416-17). This inquiry requires that we review carefully the facts and circumstances of each case. Although no single factor is dispositive, we have identified previously three helpful factors in framing the analysis: (1) the temporal proximity of the illegal act and the subsequent consent, (2) the intervening circumstances and (3) the purpose and flagrancy of the officers’ misconduct. Id. These factors “are not meant to be exhaustive.” Id. The underlying question “involves a pragmatic evaluation of the extent to which the illegal police conduct caused the defendant’s response.” Id. at 1310 (internal quotation marks omitted).

We turn first to the time that elapsed between the officers’ entry and Mr. Smith’s consent. Our case law reflects the commonsense principle that the more time that has elapsed between the illegal act and the defendant’s consent, the more likely it is that the defendant’s consent was untainted. Id. …

The long duration of a trip does not give the passenger any enhanced reasonable expectation of privacy in car, akin to an overnight guest. United States v. Symonevich, 688 F.3d 12 (1st Cir. 2012):

Symonevich argues in the alternative that the particular circumstances in this case gave him a reasonable expectation of privacy in the vehicle. Relying on our decision in United States v. Lochan, 674 F.2d 960, 963-65 (1st Cir. 1982), Symonevich argues that the duration of the trip between Maine and Massachusetts — a nearly six hour round-trip drive — was long enough that he had a reasonable expectation of privacy in the vehicle. We did say in Lochan that the fact of a long trip “would engender a slightly greater privacy expectation than would a short trip.” Id. at 965. Symonevich says that vehicle passengers on long rides are akin to overnight guests and thus have a reasonable expectation of privacy in the vehicle. As he puts it, “[s]ociety would consider it reasonable to bring personal items along on such a lengthy car ride … and recognize that this long of a trip would give rise to some expectation of privacy on the part of a passenger within the vehicle.”

We are skeptical about the continued relevance of the type of duration argument that Symonevich makes.5 Since we decided Lochan, the Supreme Court has developed extensive case law on the automobile exception, circumscribing the amount of privacy one can expect in a vehicle and further differentiating searches of automobiles from searches of homes. Compare, e.g., New York v. Class, 475 U.S. 106, 112-113 (1986) (“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.” (quoting Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion) (internal quotation marks omitted)), and St. Hilaire v. City of Laconia, 71 F.3d 20, 28 n.6 (1st Cir. 1995) (“Fourth Amendment law … recognizes a distinction between a person’s home and a person’s car. For example, the Fourth Amendment permits a slightly broader search pursuant to the arrest of the occupant of a vehicle and some warrantless searches of vehicles are permitted even if there are not emergency circumstances.”), with Carter, 525 U.S. at 99 (Kennedy, J., concurring) (“The Fourth Amendment protects ‘[t]he right of the people to be secure in their … houses,’ and it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.” (alteration in original) (quoting U.S. Const. amend. IV)). Thus, any analogy between an automobile and a house is suspect. In any event, without categorically rejecting the relevance of the duration of a trip in an automobile to the reasonable expectation of privacy analysis, we conclude that the duration of the trip here, under all of the circumstances, did nothing to enhance Symonevich’s expectation of privacy.

I applaud defense counsel for the ingenuity of this argument. We need more creative defense lawyers to keep Fourth Amendment rights viable.

The search warrant in this case was not supported by probable cause, and it was so deficient that the good faith exception did not apply. Accordingly, there was no qualified immunity for the search in a § 1983 case. Armijo v. Perales, 688 F.3d 685 (10th Cir. 2012):

We conclude a reasonably well-trained officer would have known a search pursuant to such a facially overbroad warrant was illegal under clearly established law. As discussed earlier, the search warrant affidavit did not provide details of any crime other than the alleged larceny of the two firearms. Nothing in the affidavit linked Plaintiff to any impropriety regarding money or drugs. Yet the warrant inexplicably authorized a broad search for financial transaction documents, drugs, and other firearms. A reasonably well-trained officer would have known the affidavit failed to establish probable cause for crimes not even identified. Under the circumstances of this case, a reasonable officer would have known his actions were unlawful because, as the district court stated, “the search warrant was so facially overbroad and the affidavit so lacking in probable cause to support the broad search that the warrant purported to authorize that it could not be reasonably relied upon.” (Appellants’ App. at 470.)

Consider this: The government already gets all the breaks under the good faith exception. Remember Warren Burger’s wish in Bivens that we don’t need an exclusionary rule because there can be civil rights suits against the officers? If so, they have to have teeth. This shows it. Of course there still is the question of damages: How much damages can somebody who also might be a criminal really expect?

Defendant was stopped in a high crime area at 1 am for not signaling a left turn on a bicycle. He produced an ID card and was asked some basic questions. He was relaxed and made eye contact but appeared potentially under the influence, and riding a bike under the influence was an offense. When asked about a prior arrest for having a gun he became extremely nervous, and then a frisk was started, and he told them where the gun was. The stop became unreasonable in its length. The prior arrest for a gun did not justify extending this stop. State v. Steffens, 250 Ore. App. 742, 282 P.3d 888 (2012):

The central fact on which Mawdsley based his suspicion that defendant had a weapon, and the only fact on which the trial court relied, was that defendant had been arrested the previous month for possessing a concealed handgun. However, prior arrests or convictions—even recent ones—without more, do not provide reasonable suspicion that a person is currently engaged in illegal conduct. State v. Frias, 229 Ore. App. 60, 65, 201 P.3d 914 (2009) (“[W]hatever the inference that could be reasonably drawn about [the] defendant’s past drug use, there was no evidence of a current or imminent crime * * *. The fact that [the] defendant was awaiting sentencing on a drug charge does not give rise to reasonable suspicion that, at the time the officer prolonged the stop, [the] defendant was engaged in criminal activity.”); State v. Holcomb, 202 Ore. App. 73, 77-78, 121 P.3d 13, adh’d to as modified on recons, 203 Ore. App. 35, 125 P.3d 22 (2005) (rejecting the state’s argument that “a person’s recent drug use is sufficient, without more, to establish reasonable suspicion of present drug possession”); see also Dyer, 157 Ore. App. at 329 (the fact that the defendant had once been convicted of unlawfully possessing a weapon in a public building did not provide reasonable suspicion that he posed a threat to an officer during a traffic stop).

Officer’s reasonable mistake of fact that a passenger in defendant’s car had a warrant out for him made the stop reasonable and with good faith. The trial court’s finding of reasonableness is supported by the record. State v. Butler, 2012 Ohio 2902, 2012 Ohio App. LEXIS 2544 (5th Dist. June 22, 2012):

[*P46] The United States Supreme Court has held that a police officer’s mistake of fact will not lead to the suppression of evidence where the mistake was “understandable” and a reasonable response to the situation facing the police officer. Hill v. California, 401 U.S. 797, 804, 91 S.Ct.1106, 28 L.Ed.2d 484 (1971). Here, the trial court’s finding that Doty’s misidentification was reasonable is supported by competent, credible evidence in the record: …

The state had the burden of proving that the consent to frisk occurred during an “unavoidable lull” in a stop when dispatch was queried for wants or warrants. State v. Dennis, 250 Ore. App. 732, 282 P.3d 955 (2012).*

Defendant discarded the cocaine he was indicted for when he was approached by officers, so his attorney was not ineffective for not moving to suppress. United States v. Calhoun, 2012 U.S. Dist. LEXIS 90110 (E.D. Pa. June 28, 2012).*

Officers came to defendant’s business with a writ of execution because he was a judgment debtor. While picking up property, they saw a key marked “Sentry” and saw a small Sentry safe. They opened the safe looking for cash and found, among other things, hallucinogenic mushrooms, which got him charged. The search was for civil purposes and was governed by the administrative search law, and this search exceeded the terms of the state statute on writs of execution. That made it violate the state constitution. State v. Mast, 250 Ore. App. 605, 282 P.3d 916 (2012).

Defendant was a suspect in using a facility of interstate commerce to entice a minor to engage in illicit sexual activity, and there was probable cause to make his arrest. The search of his car producing condoms and a cell phone was justified by search incident under Gant. The car was also being towed, and it would inevitably be inventoried. United States v. Hobbs, 2012 U.S. Dist. LEXIS 88925 (E.D. Mo. May 15, 2012), adopted 2012 U.S. Dist. LEXIS 88946 (E.D. Mo. June 27, 2012).*

The police got an anonymous and unverifiable tip that a suspicious man had a gun in a car. Finally, defendant’s car is stopped parked, and officers see the defendant move a rifle from the trunk of his car to another. This was not reasonable suspicion. Numerous police officers arrived and defendant and others were held at gunpoint, on their knees, and handcuffed. Defendant was Mirandized and incriminated himself. There was no break in the causal chain for the statement. State v. Charpentier, 86 So. 3d 86 (La. App. 3d Cir. 2012), Decided, Writ granted by, Reversed by State v. Charpentier, 85 So. 3d 129, 2012 La. LEXIS 1017 (La., Apr. 4, 2012).

Dispatch told the officer that there was an active warrant on defendant, and the officer arrested him on the warrant and searched his person. Herring governs, and the good faith exception applies. State v. Brock, 91 So. 3d 1003 (La. App. 2d Cir. 2012).

Defendant had no expectation of privacy in his clothes seized from him at the jail on his arrest for a sex offense. The day after his arrest, the clothes went to forensics. What was taken from them was of such limited value in the case, it didn’t matter anyway. People v Woodard, 93 A.D.3d 944, 939 N.Y.S.2d 648 (3d Dept. 2012).

Defendant was approached in his car because of outstanding warrants. He got out of the car as police approached him and tossed a bindle of drugs. He was a “recent occupant” of the car for search incident purposes, and he demonstrated control of the car by locking the door with the remote as he got out. Robbins v. Commonwealth, 336 S.W.3d 60 (Ky. 2011).

Nervousness alone not enough for reasonable suspicion, but here there was more. Worthy v. State, 91 So. 3d 762 (Ala. Crim. App. 2011), later proceeding at, 2011 Ala. Crim. App. LEXIS 159 (Ala. Crim. App., July 15, 2011)*:

The nervousness Allen and Smitherman detected from Worthy and his passenger is by itself insufficient to create a reasonable suspicion justifying further detention. Nonetheless, this nervous behavior combined with Worthy’s evasiveness regarding the identity of his passenger, the conflicting stories by Worthy and his passenger regarding the starting point of their trip, Worthy’s failure to disclose his prior marijuana arrest, and the fact that the rental car Worthy was driving was three days overdue combine to create a reasonable suspicion of concealment of criminal activity.

Defendant was essentially a squatter selling drugs in one of the places searched, so he had no standing. The owner told the police it was vacant at the time of the search. United States v. Solomon, 2011 U.S. Dist. LEXIS 48010 (M.D. N.C. May 4, 2011).*

Officers validly used third party consent to seize defendant’s computer for time to get a search warrant to search it. The seizure did not meaningly interfere with defendant’s possessory interest in the computer at the time. The computer was at the third party’s home and defendant didn’t have standing in the house. United States v. Beasley, 688 F.3d 523 (8th Cir. 2012).*

Officers had cause to stop defendant walking down the centerline of a sidewalk lined street. United States v. Schuett, 2012 U.S. Dist. LEXIS 106610 (E.D. July 31, 2012).*

Considering the deference required of a magistrate judge’s finding of probable cause, combined with the incomplete version of facts provided in the 2255, defense counsel was not ineffective for not challenging the search. United States v. Jeffery, 2012 U.S. Dist. LEXIS 105637 (E.D. La. July 30, 2012).*

Three factors of reasonable suspicion collectively still did not add up to reasonable suspicion: furtive movement toward a cosmetics case on the floor, nervousness, and gray rotting teeth. The latter shows nothing about time. State v. Kentopp, 251 Ore. App. 527 (2012):

We begin with the first three circumstances. As to defendant’s furtive movements, those movements—viz., leaning down as he was being pulled over—do not, by themselves, amount to reasonable suspicion. … The other two facts—defendant’s nervous demeanor and gray, rotting teeth—could arguably have led Jeter to believe that defendant had used drugs in the past. However, an officer’s observation of signs of a person’s past drug use does not, by itself, give rise to reasonable suspicion that the person currently possesses drugs. … Specifically, as to defendant’s nervous demeanor, it could be ascribed to “any number of things”—especially in light of the fact that Jeter did not testify that defendant’s nervousness during the stop suggested to him that defendant had recently used drugs—thereby further undermining the value of that circumstance as support for reasonable suspicion of drug possession. … As to defendant’s gray, rotting teeth, we have previously concluded that physical indications that were far more consistent with past drug use—for example, in … track marks on the defendant’s arms—failed to give rise to reasonable suspicion of drug possession.

Not only do those circumstances individually not amount to the relevant reasonable suspicion, we also conclude that, even considering them together, they are insufficient to give rise to reasonable suspicion that defendant possessed drugs.

While defendant was in a place where he had no standing, he still had a reasonable expectation of privacy in his cell phone from a warrantless search. State v. Barajas, 817 N.W.2d 204 (Minn. App. 2012):

This constitutional protection extends to items “thus closed against inspection, wherever they may be.” Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1878) (emphasis added) (recognizing Fourth Amendment protection of sealed letters or packages in the mail); see also United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S. Ct. 1029, 1031-32, 25 L. Ed. 2d 282 (1970) (reaffirming this principle). Indeed, an individual does not necessarily relinquish the constitutional protection afforded to the concealed contents of a closed container by taking the container to a location in which the individual lacks a reasonable expectation of privacy. See Bond, 529 U.S. at 338-39, 120 S. Ct. at 1465 (holding that defendant retained some privacy interest in contents of bag brought onto public bus); United States v. Owens, 782 F.2d 146, 150 (10th Cir. 1986) (holding that holdover guest’s luggage left in motel room retained Fourth Amendment protection even though motel had legal right to forcibly evict holdover guest); State v. Mooney, 218 Conn. 85, 588 A.2d 145, 161 (Conn. 1991) (holding that defendant retained reasonable expectation of privacy in contents of duffle bag and cardboard box located under highway bridge where he was living). Our careful research, however, has identified no published decisions in Minnesota articulating whether a cellular telephone may be treated as a closed container, the digital contents of which are protected from unreasonable government searches. The facts and circumstances here require us to address this matter of first impression.

The origin of the protection afforded to closed containers is Ex parte Jackson, in which the United States Supreme Court held that the contents of sealed letters or packages in the mail cannot be searched by government agents without a warrant. 96 U.S. at 733. Since then, the United States Supreme Court has explained that the general rule protecting the contents of closed containers applies broadly to all types of containers because “a constitutional distinction between ‘worthy’ and ‘unworthy’ containers would be improper.” Ross, 456 U.S. at 822, 102 S. Ct. at 2171. As the Ross court observed, “a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf [may] claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attaché case.” Id. Similarly, person’s privacy interest in the contents of a cellular telephone is not diminished by virtue of those contents’ digital format. See Katz, 389 U.S. at 352-53, 88 S.Ct. at 512 (rejecting claim that Fourth Amendment protects only tangible property);1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.6(f) (4th ed. 2004) (observing that the Katz holding suggests that digital information may be protected from unreasonable searches). A cellular telephone that conceals its contents is consistent with the broad definition of constitutionally protected containers described in Ross.

Moreover, rapid advancements in cellular-telephone technology have broadened the capabilities of telephones beyond communication to include the creation and storage of private data that the owner does not intend for others to view. Cellular telephones are capable of storing substantial amounts of private data, including address books and photographs. Smith, 920 N.E.2d at 954-55; see also State v. Ferguson, 804 N.W.2d 586, 591-92 (Minn. 2011) (recognizing contacts list from cellular telephone as evidence). Here, the record clearly establishes that Barajas’s cellular telephone is capable of taking and storing digital photographs. For the purpose of determining the constitutionality of a police search, we cannot identify a meaningful distinction between the digital photographs stored in Barajas’s cellular telephone and the personal items stored in the paper bag contemplated by the United States Supreme Court in Ross.

We are mindful that, because cellular telephones are capable of sharing information with the public or third parties, the contents of a cellular telephone are not always truly concealed. See Gail, 713 N.W.2d at 860 (concluding that defendant lacked reasonable expectation of privacy in cellular telephone call history because defendant sublet the cellular telephone and the records were held by the telephone service provider and exposed via the “Caller ID” function on the cellular telephone of defendant’s call recipient); Smith, 920 N.E.2d at 954 (observing that some cellular telephones can transmit or receive text messages and other data and access the Internet). And the contents of closed containers are not shielded from warrantless intrusion if the container’s outward appearance betrays its contents. Sanders, 442 U.S. at 764 n.13, 99 S. Ct. at 2593 n.13. But these circumstances are not before us.

A school teacher had no reasonable expectation of privacy in his desk at work because it was never locked, it was in a common area, and others had access. Walker v. State, 206 Md. App. 13, 47 A.3d 590 (2012):

Applying precedent [Macusi and O’Connor et al.] to the case at bar yields the conclusion that appellant did not have a reasonable expectation of privacy in the desk. We recognize that appellant was assigned the desk and that he had used the same desk in prior school years. Yet, the desk was owned by the school system and was located in a large, open, well-traversed room. This room was referred to as the “first grade pod,” connecting several classrooms, and contained desks for two other paraeducators. Because it was so centrally located, students and faculty routinely passed the desk. Small instructional groups and after-school programs also held meetings and conducted other activities in the large room, which was only secured at night when the custodians locked the doors leading to the outer hallways. Appellant could have taken steps to safeguard what he kept in the desk, but did not. The principal of appellant’s school indicated that although other people at the school likely would not have reason to open the drawers of the desk, he stated that someone might look in the desk “to borrow a pencil or something like that.” Furthermore, at the time of the search, the drawers read “seminars, research data,” “student data,” and “learning.”

Regardless of who originally placed them on the drawers, the labels suggested that the drawers contained school-related materials accessible to a wide range of persons, rather than appellant’s personal, private items. Cf. O’Connor, 480 U.S. at 718 (employee had a reasonable expectation of privacy in desk and file cabinet in own office not shared with anyone else in which he stored personal documents); Gillard v. Schmidt, 579 F.2d 825, 828 (1978) (guidance counselor who was responsible for maintaining confidential student records and whose desk was in an office secured by a locked door had a reasonable expectation of privacy in his desk). Appellant could have used a private locker provided to him by the school, but he did not. Appellant had the option of locking the desk, but he did not. The aforementioned facts, taken together, indicate that appellant did not have a subjective expectation of privacy, and even if he did, such an expectation was objectively unreasonable under the circumstances presented. Accordingly, we discern no error in the circuit court’s denial of appellant’s motion to suppress.

The police had a drug dealer’s iPhone in their possession, and defendant text messaged it. The officer pretended to be the drug dealer, and they text messaged back and forth. Defendant was arrested at a meet. None of this violated the Fourth Amendment or the Washington Constitution’s privacy provision. State v. Hinton, 169 Wn. App. 28, 280 P.3d 476 (2012):

¶17 The reasoning underlying the Wojtyna decision applies equally to Hinton’s text messages sent to Lee’s iPhone. Like in Wojtyna, Hinton transmitted messages to a device—Lee’s iPhone—over which he had no control. See Wojtyna, 70 Wn. App. at 692. By doing so, he voluntarily ran the risk that his messages, once delivered, would be received by whomever possessed the iPhone, and he had no control over what that person might do with that message. See Wojtyna, 70 Wn. App. at 692. Like in Wojtyna, the State did not monitor every message Hinton sent, “but rather, where his [message] was independently displayed and retrieved from the place to which he intended to send it.” Wojtyna, 70 Wn. App. at 692. See also State v. Goucher, 124 Wn.2d 778, 781, 784, 881 P.2d 210 (1994) (police detective did not violate article I, section 7 [or the Fourth Amendment] when he answered the telephone while executing a search warrant at a suspected drug dealer’s home, told the caller that he “was handling business,” and arranged a drug transaction with the caller; an individual has no reasonable expectation of privacy when he “voluntarily expose[s] his desire to buy drugs to someone he did not know.”).

In State v. Roden, 169 Wn. App. 59, 279 P.3d 461 (2012), the court found implied consent under similar facts:

¶17 Under the implied consent reasoning of the court in Townsend, Roden impliedly consented to the recording of his text messages on Lee’s iPhone. Roden voluntarily sent the text messages to Lee’s iPhone with the expectation that Lee would read them. In doing so, he also anticipated that the iPhone would record and store the incoming messages to allow Lee to read them. Cell phones, like computers, are “message recording device[s],” a fact that Roden must have understood as a user of text messaging technology on cell phones. See Townsend, 147 Wn.2d 676. Accordingly, Sawyer did not violate Roden’s rights under the Act.

The DEA had reasonable suspicion for stops of this vehicle in a health care fraud case. The state officers involved could rely on the DEA under the fellow officer rule which has it’s limits, but they weren’t exceeded here. United States v. Lyons, 687 F.3d 754, 2012 FED App. 0229P (6th Cir. 2012).*

Despite its flexibility, the collective knowledge doctrine is not without its restrictions. The doctrine’s primary boundary is, of course, the Fourth Amendment itself. As with any traditional investigative stop, a traffic stop based on collective knowledge must be supported by a proper basis and must remain reasonably related in its scope to the situation at hand. See Davis, 430 F.3d at 354. Accordingly, if an investigating officer “lacked sufficient information to satisfy the reasonable suspicion requirement, and the [responding officer’s] subsequent observations did not produce reasonable suspicion,” then the stop violates the Fourth Amendment. Feathers 319 F.3d at 849. Likewise, if a responding officer exceeds the stop’s scope because he was not provided with the facts necessary to stay within its proper bounds, then any evidence improperly obtained therefrom remains subject to the exclusionary rule, just as if the investigating officer committed the error. See, e.g., United States v. Pineda-Buenaventura, 622 F.3d 761, 776 n.5 (7th Cir. 2010) (finding that the exclusionary rule “remain[ed] in play” when supervisors failed to communicate the proper bounds of a search warrant to executing officers). The taint of a stop effected without reasonable suspicion similarly cannot be cured by an after-the-fact relay of information. See Blair, 524 F.3d at 751-52. Applying traditional Fourth Amendment restrictions equally to the collective knowledge doctrine ensures that communications among law enforcement remain an efficient conduit of permissible police activity, rather than a prophylactic against behavior that violates constitutional rights.

The Seventh Circuit has helpfully clarified the application of the collective knowledge doctrine by identifying three separate inquiries: (1) the officer taking the action must act in objective reliance on the information received; (2) the officer providing the information must have facts supporting the level of suspicion required; and (3) the stop must be no more intrusive than would have been permissible for the officer requesting it. United States v. Williams, 627 F.3d 247, 252-53 (7th Cir. 2010) (citing United States v. Nafzger, 974 F.2d 906, 911 (7th Cir. 1992)). We are persuaded by the simplicity of this approach.

Moreover, and from a purely functional standpoint, practical considerations naturally restrict the collective knowledge doctrine, because a responding officer is invariably in a better position when provided with the details helpful and necessary to perform his duties. The relay of sufficient information is critical to a responding officer who needs to, for example, report to the correct location, identify the correct suspect, respond appropriately to exigent circumstances, and protect his safety and the safety of others.

. . .

Moreover, it is immaterial that the troopers were unaware of all of the specific facts that supported the DEA’s reasonable suspicion analysis. The troopers possessed all the information they needed to act—a request by the DEA (subsequently found to be well-supported) that they execute the traffic stop in the expectation that illegal narcotics would be found in the vehicle. …

Defendant was in a Budget rental car that was days overdue, which Budget told officers. When the car rental manager showed up, once there, he validly consented to a search of the car which vitiated defendant’s lack of valid consent argument. United States v. Lumpkins, 687 F.3d 1011 (8th Cir. 2012). [Note, some cases hold that there is no REP in an overdue rental car, which isn’t right. This is a far better approach because somebody with an ownership interest who has already revoked consent to the rental can consent to the search.]

Defendant’s search issue was decided on direct appeal and can’t be relitigated in a 2255. Sims v. United States, 2012 U.S. Dist. LEXIS 109478 (W.D. N.C. August 6, 2012).*

It was not a Fourth Amendment violation to threaten to release a dog into a building to make defendant come out. In any event, defendant had no standing in the place he was hiding. United States v. Pate, 2012 U.S. Dist. LEXIS 109088 (D. Minn. August 3, 2012).*

Orin S. Kerr, The Curious History of Fourth Amendment Searches, Supreme Court Review, Forthcoming. Abstract:

In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court restored the trespass test of Fourth Amendment law: Any government conduct that is a trespass onto persons, houses, papers, or effects is a Fourth Amendment ‘search.’ According to the Court, the trespass test had controlled the search inquiry before the reasonable expectation of privacy test was introduced in Katz v. United States, 389 U.S. 347 (1967). Although Katz had rejected the trespass test, Jones restored it. This essay examines the history of the Fourth Amendment search doctrine and reaches the surprising conclusion that the trespass test never existed. Pre-Katz decisions did not adopt a trespass test, and instead grappled with many of the same questions that the Court has focused on when applying the reasonable expectation of privacy test. The idea that trespass controlled before Katz turns out to be a myth of the Katz Court: Katz mischaracterized Fourth Amendment history to justify a break from prior precedent. Jones thus restores a test that never actually existed. The essay concludes by considering both the doctrinal and theoretical implications of the surprising history of the Fourth Amendment search doctrine.

Defendant was stopped for three minutes after an officer passed by and smelled marijuana, and stopped to talk to him and others. After a search of the trunk revealed nothing, defendant fled and dropped a gun in flight. The reasonable suspicion for the stop didn’t completely dissipate by the time flight occurred just because the search came up empty. United States v. Lima, 2012 U.S. Dist. LEXIS 137001 (D. V.I. September 25, 2012)*:

For the Court to enforce such an arbitrary and artificial end to a brief investigatory encounter that had just begun, as urged by Defendant Lima, and which suffered from no Fourth Amendment infirmity at its inception, would prevent the officers from doing their job—to assess the circumstances in light of their knowledge and experience and determine whether and how they should continue their investigation. The brevity of the Terry stop and the minimally intrusive nature of the investigation confirms that the officers “diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly ….” Sharpe, 470 U.S. at 686. The approximately three minute interaction between the police officers and the three men fits entirely within Terry’s admonition that an investigatory stop be brief. Cf. United States v. Frost, 999 F.2d 737, 740-42 (3d Cir. 1993) (holding that a seizure lasting eighty minutes was acceptable under the circumstances, where the police had acted diligently). Defendant’s attempt to parse an already brief and entirely legitimate investigatory stop into even smaller segments defies rationality.

Erik Luna, Colloquy Essays, The Bin Laden Exception:

ABSTRACT—Osama bin Laden’s demise provides an opportune moment to reevaluate the extraordinary measures taken by the U.S. government in the “war on terror,” with any reassessment incorporating the threat posed by al Qaeda and other terrorist organizations. Some modest analysis suggests that terrorism remains a miniscule risk for the average American, and it hardly poses an existential threat to the United States. Nonetheless, terrorism related fears have distorted the people’s risk perception and facilitated dubious public policies, exemplified here by a series of programs implemented by the Transportation Security Administration (TSA). Among other things, this agency has adopted costly technology and intrusive pat downs to screen airline passengers with little evidence that the terrorist risk has been meaningfully and efficiently reduced as a result. The TSA regime also clashes with core constitutional values and decent understandings of the Fourth Amendment. To date, however, the courts have been deferential to the government. Although the decisions rehearse established exceptions, they are indicative of an entirely new constitutional exception grounded in irrational fears of terrorism.

An earlier version of this Essay was published in the Northwestern Uniersity Law Review Colloquy on February 21, 2012, 106 NW. U. L. REV. COLLOQUY 230 (2012), http://www.law.northwestern.edu/lawreview/colloquy/2012/3/LRColl2012n3Luna.pdf.

Letters To My Country: The White Fourth Amendment:

In 2010, Paul Butler published a law review article entitled The White Fourth Amendment, (citation is [43 Tex. Tech. L. Rev 245 [not online for free]], for those of you with access to Westlaw or Lexis). In the article, Butler explains how legal rules established by the Supreme Court over the past fifty years have created a substantive body of law for police conduct that leads inextricably to racially disparate policing. What follows is an excerpt from the article in which Butler describes the facts from a case called Immigration & Naturalization Service v. Delgado, in which mostly Mexican factory workers were searched based on a hunch by INS agents that the factory was populated by illegal immigrants. What occurred in that factory provides an excellent case study of how exactly a “White” Fourth Amendment works in practice: …

(http://letterstomycountry.tumblr.com/post/32299419725/the-white-fourth-amendment (sorry, I can’t embed the link)

State’s failure to prove that the drug dog was certified was error. State v. Dixon, 2012 Ohio 4428, 2012 Ohio App. LEXIS 3893 (9th Dist. September 28, 2012).*

Defendant’s admission he had a roach in the ashtray was reasonable suspicion to extend the stop. State v. Ruffer, 2012 Ohio 4491, 2012 Ohio App. LEXIS 3927 (6th Dist. September 28, 2012).*

A doctor ordered by the State Medical Board for a mental examination is not a Fourth Amendment claim. Smith v. State Med. Bd. of Ohio, 2012 Ohio 4423, 2012 Ohio App. LEXIS 3874 (10th Dist. September 27, 2012).*