Eschewing bright line rules, Kansas weighs the factors of whether a stop is unreasonable. Here, it was reasonable. State v. Murphy, 42 Kan. App. 2d 933, 219 P.3d 1223 (2009)*:

Weighing on the side of a voluntary encounter are the following factors: Maschmeier returned the defendant’s documents, told the defendant he was free to go, and physically disengaged the defendant; there was only one officer present; there was no display of a weapon or physical touching by the officer; and the encounter occurred in a public place.

Weighing on the side of an illegal seizure are the following factors: Maschmeier did not ask the defendant permission to ask further questions before asking about the illegal contraband, and the officer’s emergency lights remained on throughout the encounter.

The above factors supporting a voluntary encounter are strong enough to outweigh the factors supporting an illegal seizure. We affirm the district court’s denial of the defendant’s motion to suppress.

Defendant’s presence in an area known for a significant number of robberies was not reasonable suspicion for his stop in the early morning hours when he was parked on a parking lot. Cockrell v. State, 2009 Ark. App. 700, 369 S.W.3d 19 (2009),* reversed 2010 Ark. 258, 2010 Ark. LEXIS 306 (2010).

Defendant’s traffic stop for not using his signal was proper. Butler v. State, 300 S.W.3d 474 (Tex. App.—Texarkana 2009).*

Undercover officers used a man who didn’t know they were police to go to defendant’s house to buy drugs, which he did. When he got back to the car, he was arrested, and the officers went to the house to do a knock-and-talk, ultimately entering and doing a protective sweep and seizing the house pending investigation. In the meantime, another had gone to get a search warrant for the house. They had probable cause to get a search warrant before the protective sweep, and suppression was not ordered because of the inevitable discovery doctrine even though the view of drugs during the protective sweep made it into the search warrant application. Kamara v. State, 205 Md. App. 607, 45 A.3d 948 (2012):

Thus, the issue here is whether the later search pursuant to the warrant was genuinely independent of the earlier observation of the marijuana in the house. The Court in Murray gave guidance on how to assess this issue. It noted two situations in which the evidence would not be deemed to be obtained by independent lawful means: (1) where the officer’s “decision to seek the warrant was prompted by what they had seen during the initial entry”; and (2) where “information obtained during that entry was presented to the [judge] and affected his decision to issue the warrant.” Id.

In the present case, neither of these situations are present. The evidence here established that the police planned to get a warrant prior to the protective sweep or the discovery of any contraband. Detective Oaks testified that, when Sergeant Carafano arrived at the house, he announced that the police were going to detain appellant while they sought a search warrant. Appellant was then handcuffed and detained, and two officers conducted the protective sweep. The uncontradicted evidence shows that the decision to seek the search warrant was not prompted by what the officers saw during the initial protective sweep.

While inventory does not permit forcing open locked compartments in a car, the finding of ammunition in this car justified a further search for a gun. That was inevitable discovery. Essentially, where there’s ammunition there’s probably a gun. United States v. McCullum, 469 Fed. Appx. 194 (4th Cir. 2012):

Although the policy did not permit officers to force open a locked glove compartment during an inventory search, the ammunition discovered in the trunk would have provided probable cause to conduct a warrantless search of the vehicle for the gun associated with the seized ammunition. See Michigan v. Thomas, 458 U.S. 259, 260-62 (1982) (explaining that evidence seized during an inventory search of a vehicle can provide probable cause to search elsewhere in the vehicle for additional contraband). The scope of that warrantless search would have included “every part of the vehicle and its contents that may [have] conceal[ed] the object of the search.” United States v. Ross, 456 U.S. 798, 825 (1982). Because a glove box can conceal a gun, the glove box of the Cadillac was obviously within the scope of the warrantless probable cause search. The fact that the glove box was locked would not prevent us from upholding the lawfulness of its search. “[I]f the police have probable cause to believe that there is contraband . . . anywhere in the car they can search for it even if it is in a … locked compartment such as the glove compartment ….” United States v. Mazzone, 782 F.2d 757, 760 (7th Cir. 1986); see also Ross, 456 U.S. at 823 (“The scope of a warrantless search based on probable cause is no narrower … than the scope of a search authorized by a warrant supported by probable cause.”). Accordingly, we affirm the district court’s denial of the motion to suppress because the marijuana, the clip of ammunition, and the gun would have been inevitably discovered.

Defendant’s actions amounting to reasonable suspicion based on driving and actions after the stop. United States v. Ervin, 469 Fed. Appx. 374 (5th Cir. 2012)*:

At the suppression hearing, Officer Vallet first set forth his experience in highway interdiction, including a year and a half working interdiction and 200 hours of training in interdiction. Officer Vallet then articulated several facts that led him to suspect that Ervin may have been involved in criminal activity before Officer Vallet decided to prolong the detention. From the outset, Officer Vallet found it suspicious that Ervin, while approaching the sheriff’s vehicle, dropped speed, changed lanes, and took a close position behind another vehicle. Officer Vallet testified that in his training and experience, such activity was an attempt “to blend in with other traffic, not stand out.” Officer Vallet then found it suspicious that twice when Ervin exited his vehicle, he “stopped just prior to the back of his vehicle, as if to stay close to the vehicle.” Based on Officer Vallet’s training and experience, people acting in such a manner indicate that “they have something that is of value or there’s something connected to that car that they don’t want to get too far from.” During his interaction with Ervin, Officer Vallet noticed that Ervin “seemed overly nervous for a minor traffic violator” as evidenced by Ervin’s avoidance of eye contact. Officer Vallet also did not find out of all suspicion the sequence in which Ervin expressed his travel plans. Ervin initially stated that the purpose of his trip was to visit a family member and later added that the purpose of the trip was to start a new business. The fact that Ervin was unable to produce a rental agreement raised Officer Vallet’s suspicions because “[s]ometimes that is a way to distance yourself from the vehicle, or you don’t want anybody to see who rented it or if it was rented in a false name.” Further, Officer Vallet found it suspicious that Ervin failed to disclose fully the details of his criminal history.

The affidavit twice used “recently” to describe when the officer learned of information from the CI. Coupled with a showing that this was an ongoing drug operation, that was enough to overcome staleness. Jones v. State, 364 S.W.3d 854 (Tex. Crim. App. 2012):

We have suggested that time is a less important consideration when an affidavit recites observations that are consistent with ongoing drug activity at a defendant’s residence.33 We quoted from United States v. Johnson, in which the Tenth Circuit explained: “Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.”34 Other federal circuits have held that the nature of the activity must be considered, and that, in appropriate circumstances, years could pass without information becoming stale.35 In United States v. Greene, the Sixth Circuit explained that “[e]vidence of ongoing criminal activity will generally defeat a claim of staleness.”36 And, according to that court, “where the criminal activity occurred in a ‘secure operational base,’ the passage of time becomes less significant.”37

Greene was a case in which drugs were being sold out of a residence.38 Narcotics had been purchased at the residence at least twelve times, but the last reported time was twenty-three months before a warrant was sought.39 The Sixth Circuit found that the information was not stale.40 The Sixth Circuit has subsequently suggested that information about narcotics tends to go stale quickly but only “in the absence of information indicating an ongoing and continuing narcotics operation.”41

The appellate court standard of review of deference to the trial court findings did not insulate from review the failure of the trial court to review the videotape of the defendant’s stop that included the consent. The appellate court should review the video in light of the deferential standard of review and reverse if it doesn’t support the findings. Tucker v. State, 369 S.W.3d 179 (Tex. Crim. App. 2012):

Finally, we held in Montanez that appellate courts should apply the deferential standard articulated in Guzman “to a trial court’s determination of historical facts when that determination is based on a videotape recording admitted into evidence at a suppression hearing.” Montanez, 195 S.W.3d at 109. The case before us differs from Montanez in that the video was admitted into evidence but was not viewed by the trial court, and was therefore not used as the basis for any findings, determinations, or rulings. Despite this distinction, deference is still the correct standard to use here. However, in order to determine whether the evidence supports the trial court’s implicit finding, the court of appeals must take all of the evidence, including the video, into account.

In a child pornography search involving an IP address at an apartment building, the officers obtained a search warrant for a specific apartment on the first floor that supposedly belonged to the defendant, whose name was omitted from the affidavit. In fact, the defendant had moved out a couple of years earlier. The officers searched the first floor apartment, realized that defendant didn’t live there, and then went to the second floor and searched his apartment based on the warrant for the first floor apartment. When they realized the mistake, Rule 41 permitted them to call the magistrate for guidance and even possible amendment of the search warrant, but they didn’t do that. Suppression was required to deter the police from doing this again. United States v. Voustianiouk, 685 F.3d 206 (2d Cir. 2012):

In determining the permissible scope of a search that has been authorized by a search warrant, however, we must look to the place that the magistrate judge who issued the warrant intended to be searched, not to the place that the police intended to search when they applied for the warrant. See Groh v. Ramirez, 540 U.S. 551, 561 (2004) (“The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant’s request.”); Ybarra v. Illinois, 444 U.S. 85, 90 n.2 (1979) (“Had the issuing judge intended that the warrant would or could authorize a search of every person found within the tavern, he would hardly have specifically authorized the search of ‘Greg’ alone.”); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.5 (4th ed. 2004) (“One of the specific commands of the Fourth Amendment is that no warrants shall issue except those ‘particularly describing the place to be searched.’ Quite obviously, the primary purpose of this limitation is to minimize the risk that officers executing search warrants will by mistake search a place other than the place intended by the magistrate.” (emphasis added)).

We conclude that these agents searched an apartment other than the one that the magistrate intended to authorize them to search. Indeed, we have no reason to believe that the magistrate judge who signed the warrant at issue intended for the scope of the search to cover any apartment in the building other than the one on the first floor. The search warrant and accompanying affidavit explicitly authorize the search of the first-floor apartment and make no mention of the second-floor apartment or even of Voustianiouk’s name. The government concedes as much on appeal, acknowledging that “Agent Raab did not disclose Voustianiouk’s name to the judge who issued the warrant.” Indeed, the affidavit submitted by Raab in support of his application for a search warrant would not have provided probable cause to search Voustianiouk’s apartment on the second floor, because the information in the affidavit, by omitting any mention of Voustianiouk, does not provide any basis for concluding that he may have been involved in a crime.

. . .

Accordingly, given the specific facts of this case, we conclude that the evidence seized as a result of this unconstitutional search must be suppressed in order “to deter police misconduct in these circumstances.” Davis v. United States, 131 S. Ct. 2419, 2423 (2011). Indeed, we believe that suppression is necessary in this case “to compel respect for the constitutional guaranty.” Id. at 2426 (quoting Elkins v. United States, 264 U.S. 206, 217 (1960)) (internal quotation marks omitted).

Defendant’s stop was with reasonable suspicion because of the officer’s knowledge of defendant’s prior history with domestic violence and firearms. An officer does not have to let a person walk away from a stop with RS without a frisk. United States v. Preston, 685 F.3d 685 (8th Cir. 2012):

Finally, we recognize that allowing the occupants of the vehicle to walk away unsearched would have posed a further threat to officer safety. As we noted in United States v. Oliver, 550 F.3d 734 (8th Cir. 2008), a person who is allowed to walk away from a stop without a pat-down search could hypothetically turn around and shoot officers remaining at the scene. Id. at 738.

Defense counsel can’t be ineffective for not raising a meritless issue. United States v. Motton, 2012 U.S. Dist. LEXIS 96454 (N.D. Tex. May 25, 2012).*

A stop because a temporary paper license plate was not visible was still valid. The officer couldn’t see the plate until after he was out of the car, but that does not prohibit him from checking the DL of the driver and to be sure it is valid. This case is similar to United States v. Clayborn, 339 F.3d 700 (8th Cir. 2003)[, yet this is published]. United States v. Hollins, 685 F.3d 703 (8th Cir. 2012):

Here, the officer did not see any plates or stickers, so he stopped Hollins’ vehicle. Only after shining his spotlight, exiting his car, and approaching the SUV did he see the In Transit sticker. Even then, it was not immediately verifiable as a valid sticker. The officer did not see its expiration date, and his experience taught him that even facially valid stickers are not legally valid (since illegally sold and distributed In Transit stickers are relatively common). He then conducted a reasonable investigation by requesting the driver’s license, insurance card, and registration. The initial traffic stop and the officer’s limited inquiry—which led to the search and Hollins’ arrest—were constitutionally valid.

The fact there was no specific reasonable suspicion as to the driver didn’t matter if there was as to co-conspirators in the car. United States v. Zamora-Lopez, 685 F.3d 787 (8th Cir. 2012):

Zamora-Lopez argues the deputies lacked reasonable suspicion that the unknown driver of the Jeep was involved in Memo’s narcotics trafficking operations. This argument relies on a too-narrow conception of reasonable suspicion and fails to consider the totality of the information available to the deputies. See Stewart, 631 F.3d at 457. The supplier earlier described to law enforcement a very specific pattern of long-standing conduct that nearly always involved three people—the supplier, Memo, and an unknown driver. Memo and his driver sometimes arrived in a silver SUV. Memo’s driver frequently stayed in the area to pick up Memo following the drug transaction. The deputies’ surveillance observations during the controlled buy confirmed the supplier’s account in virtually every detail. Cf. Illinois v. Gates, 462 U.S. 213, 241-46, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (concluding probable cause existed to issue a search warrant where an anonymous informant’s tip was corroborated by law enforcement officers’ independent investigations).

The deputies believed Memo was an experienced and high-volume drug trafficker. Such an individual might be expected to rely on trusted confederates to drive him to and from his drug transactions. While Memo might have used unknown and innocent drivers, it was reasonable for the deputies to suspect the unidentified driver was knowingly involved in Memo’s drug trafficking activities. Thus, Zamora-Lopez’s Fourth Amendment rights were not violated, and the district court’s admission of the evidence resulting from the traffic stop was proper.

Ordering a child who gave birth to submit to intimate photographing years after the sexual abuse served no reasonable government interest and violated the Fourth Amendment and state constitutional rights of the child in her bodily integrity. In the Matter of Shernise C., 2011 NY Slip Op 08355, 91 A.D.3d 26, 934 N.Y.S.2d 171 (2d Dept. 2011):

“There is no more worthy object of the public’s concern” than the welfare of children (Wyman v James, 400 US 309, 318). However, in our societal zeal to protect them, our most vulnerable and most valuable asset, we must be careful not to trample upon their constitutional rights. An innocent child should certainly have as much right to be free from an unreasonable search and seizure as someone suspected of committing a crime. Thus, while harmonizing the state’s extraordinary interest in protecting a child’s welfare from the potential for the invasion of a child’s constitutional rights may be at times difficult, a proper balance must be struck since even the most heinous crime of child sexual abuse does not automatically provide cause to ignore the rights of the victim.

. . .

Where a bodily intrusion is concerned, the court must give careful consideration to “not only the probable worth of the evidence to the investigation, but the nature of alternative means, if any, for obtaining the evidence” (Matter of Abe A., 56 NY2d 288, 298; see Winston v Lee, 470 US 753). When making our Fourth Amendment inquiry, we must consider whether there is a “ clear indication’ that the intrusion will supply substantial probative evidence” (Matter of Abe A., 56 NY2d at 297, quoting Schmerber v California, 384 US 757, 770; see Cupp v Murphy, 412 US 291, 295).

In the instant matter, given the conclusive evidence of abuse provided by the DNA test results, the State’s need to subject Shernise to a highly intrusive physical examination is so diminished as to render the search unreasonable under the Fourth Amendment. Thus, the mandated application of Family Court Act § 1027(g) to Shernise under the particular facts of this case is unreasonable and violates her Fourth Amendment rights.

Defendant was free to go when she consented to a search of her purse, despite her language difficulties and fact that she was outnumbered by the police. They “asked” “rather than commaned[ed].” United States v. Nieto-Rojas, 470 Fed. Appx. 674 (9th Cir. 2012)*:

The district court held that Appellant was not in custody when her purse was searched, reasoning that the officers were deferential and protective rather than commanding, that they asked rather than demanded to search her purse, that they did not physically control her at any time or display their weapons, and that they told her multiple times that she was free to go when her ride arrived. Appellant argues she was in custody because there were three officers on the scene, she was cited for traffic violations, English was not her native language, she watched the officers conduct an inventory search of the car, her passenger was searched in front of her, and she was told that she could leave when her ride came but she was not told she could leave before. We agree with the district court that Appellant was not in custody. Appellant was told several times she would be free to leave when her ride came. She did not ask to leave before her ride came. It was not unreasonable for the officer to stay with Appellant and her passengers while she waited for a ride, given the dangers of the busy highway.

If the district court had found consent involuntary, likely that would have been affirmed on appeal, given the standard of review.

“Espada was the resident of the searched premises, while Cruz was a temporary guest who admitted that he had no control over the residence. In leaving the residence with his belongings still in the bedroom, unlocked and exposed in a doorless closet, Cruz assumed the risk that Espada would consent to a search of her residence.” United States v. Cruz, 470 Fed. Appx. 91 (3d Cir. 2012). [This is tenuous at best, and it deserved a better, more detailed analysis than brushing it off without much in a per curiam. A guest has standing, but are his personal belongings subject to the whim of the host? Not usually. Why would the police even think that the host had apparent authority over the guest’s stuff? This is just wrong as written. Hopefully the defense will ask for rehearing or try for cert.]

Defendant being a known drug dealer in an area where there might have been a drug deal 2-3 hours earlier in a vehicle that only might have matched the color of the one they were looking for wasn’t probable cause. United States v. Allen, 2012 U.S. Dist. LEXIS 32707 (M.D. La. March 12, 2012).*

Plaintiff’s girlfriend discovered that he had an apparent stroke, and she called 911. EMTs arrived, and plaintiff threatened them with a baseball bat. They called for the police, and they arrived and Tasered him when he was threatening and verbally abusive to them. His girlfriend told them he had a rifle in the house, and that concerned them. He sued claiming that they didn’t appropriately respond to the stroke, and he suffered permanent damage. The entry was valid because of the threat with the bat and the report of the gun. Carpenter v. Gage, 686 F.3d 644 (8th Cir. 2012)*:

A reasonable deputy sheriff could have believed that exigent circumstances justified entering Carpenter’s home without a warrant. Deputies Gage and Paul both received reports that Carpenter had threatened first responders with a baseball bat. Although Carpenter denies wielding a bat while ordering the first responders out of his house, the relevant question is whether the deputies reasonably believed that he had used a baseball bat. … Here, the deputies were advised by a reliable source that Carpenter had done so. The deputies also were advised by Carpenter’s companion that Carpenter kept a rifle in the home. In light of these facts and Carpenter’s belligerence toward the first responders and the deputies, it was reasonable for Gage and Paul to believe that Carpenter may have withdrawn abruptly into his home to retrieve a gun. As neither deputy knew where Carpenter’s rifle was located, it was reasonable for them to fear that they lacked time to make a safe retreat. A reasonable officer therefore could have concluded that allowing Carpenter to go unaccompanied back into his home posed a threat to the lives of the law enforcement officers and first responders outside the house. … For these reasons, the district court correctly dismissed Carpenter’s claim alleging an unreasonable search under the Fourth Amendment.

Defendant was a mere visitor and not an overnight guest. United States v. Henry, 2012 U.S. Dist. LEXIS 97624 (D. V.I. July 15, 2012):

Defendant Henry claims that he had a reasonable expectation of privacy based on his status [as] an “overnight guest” or “social guest.” Defendant Henry identifies several facts in support of his claim that he had a reasonable expectation of privacy at the time of the search: 1) he was in Apartment 195 at a late hour of the night; 2) when police encountered him he was in a “subconscious” state (because he may have been smoking marijuana); 3) he was in the apartment watching a basketball game on television with the permission of the tenants; 4) he “periodically” hangs out at Apartment 195: and 5) he has a friendship with the alleged tenants. (Dkt. No. 77 at 2-3). [¶] When viewed in their totality, these facts establish only that Defendant was a “short-term guest” or a “casual visitor” at Apartment 195, not an overnight guest.

“Pariseau voluntarily consented to the search. After the arresting officer explained that he would be detained while they sought a warrant to search him, he said, ‘You may as well just search me now.’” The record supports consent. United States v. Pariseau, 685 F.3d 1129 (9th Cir. 2012).*

Defendant was stopped 70 miles north of the Mexican border without reasonable suspicion to believe he was smuggling drugs or people. United States v. Valdes-Vega, 685 F.3d 1138 (9th Cir. 2012) (2-1):

In evaluating whether the stop of a vehicle satisfies the reasonable suspicion standard, we must look to the “totality of the circumstances.” Arvizu, 534 U.S. at 273 (internal quotation marks omitted). When a border patrol stop is at issue, the totality of the circumstances may include:

(1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including obvious attempts to evade officers; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and, (8) officer experience.

Berber-Tinoco, 510 F.3d at 1087 (quoting United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997)). Under the totality of the circumstances approach, reasonable suspicion may exist even when each individual fact is susceptible to an innocent explanation or is not probative. Arvizu, 534 U.S. at 277. This approach “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” Id. at 273. The court, however, “will defer to officers’ inferences only when such inferences rationally explain how the objective circumstances ‘arouse[d] a reasonable suspicion that the particular person being stopped ha[d] committed or [was] about to commit a crime.'” … Accordingly, “reasonable suspicion may not be based on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped.” …

. . .

D. The Totality of the Circumstances Did Not Provide Agents with Reasonable Suspicion to Believe that Valdes-Vega Was Smuggling Drugs or Aliens

The facts of this case, when considered cumulatively, do not create a reasonable suspicion that Valdes-Vega was smuggling drugs or aliens. Taken together they reveal the following profile: a Ford F-150 pickup truck, with Baja California plates, being erratically driven on I-15, 70 miles north of the border, at approximately 2:00 in the afternoon, that slowed down as it passed through the closed Temecula Checkpoint, and whose driver failed to look a Border Patrol Agent in the eyes. Putting aside the erratic driving, this description likely “fit[s] hundreds or thousands of law abiding daily users of the highways of Southern California.” United States v. Rodriguez, 976 F.2d 592 (9th Cir. 1992), amended by 997 F.2d 1306 (9th Cir. 1993).

The question, then, is whether the addition of the erratic driving to this equation pushes this otherwise innocent profile to a reasonably suspicious one. …

Defendant’s handcuffing here was not justified for officer safety and turned a Terry stop into an arrest. United States v. Mayen-Munoz, 844 F. Supp. 2d 251 (D. R.I. 2012):

The government’s argument boils down to this: the Defendant’s detention was a valid Terry stop from the time of the initial encounter at 7:22 or 7:23 to the point when Officer Metfooney drove him to the station at 7:27 p.m. It is true that a number of the typical factors cut against de facto arrest: the duration was short (no more than five minutes); there was no use of force; Defendant was not told he was under arrest, nor was he Mirandized; there were only two officers at the scene; no weapons were brandished; and the encounter took place in a public, neutral location.

Defendant was, however, handcuffed almost immediately — no later than 7:23 p.m. Although “traditionally associated with an arrest,” United States v. Mohamed, 630 F.3d 1, 6 (1st Cir. 2010), the use of handcuffs “does not automatically convert the encounter into a de facto arrest.” Acosta-Colon, 157 F.3d at 18. Nonetheless, the use of handcuffs, “being one of the most recognizable indicia of a traditional arrest, substantially aggravates the intrusiveness of a putative Terry stop,” id. (internal quotation marks and citation omitted), and the burden of showing the necessity of their use falls squarely on the government:

[I]t must be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to undue risk of harm.

Acosta-Colon, 157 F.3d at 19 (emphasis in original); see also Mohamed, 630 F.3d at 6-7. Factors include whether the suspect was “uncooperative, belligerent, or showed any perceptible inclination to put up resistance or become violent” and whether the officers “harbored an actual suspicion” that the suspect was armed. Acosta-Colon, 157 F.3d at 19 (emphasis in original); see also United States v. Meadows, 571 F.3d 131, 141 (1st Cir. 2009).

In this case, the Government has not met its burden. Defendant did not resist his detention — he was cooperative, compliant, and placed into custody without incident. Furthermore, that Defendant was suspected of drug trafficking is not enough to justify a belief that he was armed; such a “factually unanchored justification … is generalizable to virtually every investigatory stop involving a drug suspect.” See Acosta-Colon, 157 F.3d at 19 (emphasis in original). And while the officers’ belief that Defendant had fled from the scene of the traffic stop is a relevant consideration, no evidence was offered that would support a belief or suspicion that Defendant was armed. See Meadows, 571 F.3d at 142-43.

The same can be said for the relocation of Defendant to a patrol car. The government must “point to some specific fact or circumstance that could have permitted law enforcement officers reasonably to believe that relocating the suspect . . . was necessary to effectuate a safe investigation,” and cannot rely on “bald assertions” for its justification. Acosta-Colon, 157 F.3d at 17 (emphasis in original). The government has offered no evidence to suggest Defendant’s relocation was motivated by safety concerns.

Finally, even if the government could show that the use of these arrest-like measures was justified, wholly absent from Defendant’s initial detention was any sort of investigation, questioning, or confirming or dispelling of suspicions — the very purposes for which these lesser-intrusions are permitted under the Fourth Amendment. See United States v. Trueber, 238 F.3d 79, 91-92 (1st Cir. 2001) (“[Terry] permits officers to ‘stop and briefly detain a person for investigative purposes’ and ‘diligently pursue[] a means of investigation … likely to confirm or dispel their suspicions quickly.'” (emphases added) (internal citation omitted)); see also Pontoo, 2011 WL 6016141, at *5, *8.

For all of these reasons, as of 7:23 p.m., when Defendant was handcuffed, his detention amounted to an arrest.

This district court follows the majority and does not require probable cause for historical cell site location data. United States v. Graham, 846 F. Supp. 2d 384 (D. Md. 2012):

Some courts, most notably the Eastern District of New York and the Southern District of Texas, have concluded that, under certain circumstances, applications seeking cell site location data must be granted only after a showing of probable cause, and not the lower statutory standard of “specific and articulable facts” contained in the Stored Communications Act. See, e.g., In re Application of the United States, 809 F. Supp. 2d 113 (E.D.N.Y. 2011) (Garaufis, J.); In re Application of the United States, 747 F. Supp. 2d 827 (S.D. Tex. 2010) (Smith, Mag. J.), appeal docketed, No. 11-20554 (5th Cir. Dec. 14, 2011); In re Application of the United States, 736 F. Supp. 2d 578 (E.D.N.Y. 2010) (Orenstein, Mag. J.), rev’d No. 10-MC-0550 (E.D.N.Y. Nov. 29, 2011) (unpublished order noting written opinion to follow). Those courts have essentially held that a government application for cell site location records does not implicate the Fourth Amendment if the request is for a discrete, and relatively short period of time. Compare In re Application, 736 F. Supp. 2d at 578-79 (application requesting cell site location data for a period of 58 days required warrant based on probable cause); In re Application, 747 F. Supp. 2d at 829 (60 days), with In re Application of the United States, No. 11-MC-0113, 2011 WL 679925, at *1 (E.D.N.Y. Feb. 6, 2011) (application for a period of 21 days required only specific and articulable facts, and not probable cause). In other words, those courts have concluded that the Fourth Amendment is only implicated when the government surveillance of historical cell site location data occurs over a sufficiently long—albeit undefined—period of time so as to implicate a person’s legitimate expectation of privacy. None of these decisions have explicitly defined the length of time at which a request for cell site location data must be supported by probable cause, but Magistrate Judge Orenstein of the Eastern District of New York suggested that thirty days might be an appropriate limit. See In re Application, 2011 WL 679925, at *2.

A majority of courts, on the other hand, have concluded that the acquisition of historical cell site location data pursuant to the Stored Communications Act’s specific and articulable facts standard does not implicate the Fourth Amendment, regardless of the time period involved. See, e.g., United States v. Dye, No. 10CR221, 2011 WL 1595255, at *9 (N.D. Ohio Apr. 27, 2011); United States v. Velasquez, No. 08-730-WHA, 2010 WL 4286276, at *5 (N.D. Cal. Oct. 22, 2010); United States v. Benford, No. 09 CR 86, 2010 WL 1266507, at *3 (N.D. Ind. Mar. 26, 2010); United States v. Suarez-Blanca, No. 07-023-MHS/AJB, 2008 WL 4200156, at *8-11 (N.D. Ga. Apr. 21, 2008); In re Application of the United States, 509 F. Supp. 2d 76, 80-81 (D. Mass. 2007). These courts have primarily relied on a line of Supreme Court cases construing the scope of Fourth Amendment rights relating to business records held by third parties. More specifically, these courts have concluded that because people voluntarily convey their cell site location data to their cellular providers, they relinquish any expectation of privacy over those records. See Suarez-Blanca, 2008 WL 4200156, at *8 (finding no expectation of privacy in records kept by third parties) (citing, inter alia, Smith v. Maryland, 442 U.S. 735, 743-44 (1979); United States v. Miller, 425 U.S. 435, 442-44 (1976)).

For the following reasons, this Court concludes that the Defendants in this case do not have a legitimate expectation of privacy in the historical cell site location records acquired by the government. These records, created by cellular providers in the ordinary course of business, indicate the cellular towers to which a cellular phone connects, and by extension the approximate location of the cellular phone. While the implications of law enforcement’s use of this historical cell site location data raise the specter of prolonged and constant government surveillance, Congress in enacting the Stored Communications Act, has chosen to require only “specific and articulable facts” in support of a government application for such records. Put simply, the Fourth Amendment, as currently interpreted, does not contemplate a situation where government surveillance becomes a “search” only after some specified amount of time.

[Sorry, it was too hard to use Google Scholar to locate all of them. I don’t have that much time.]

A search warrant that named defendant at his house did not permit a general search of defendant wherever he was found; a frisk yes. United States v. Andrews, 847 F. Supp. 2d 236 (D. Mass. 2012):

I find that the warrant in this case did not permit a general search of the defendant away from the premises, 452 Kempton Street, although the pat-frisk of him was reasonable. The Massachusetts Supreme Judicial Court decision in Commonwealth v. Santiago, 410 Mass. 737, 741-742 (1991), and Professor LaFave indicate that, in the context of the language in the search warrant in this case, the officers were authorized by the warrant to search Andrews only at 452 Kempton Street. See 2 LaFave, Search and Seizure, §4.9(a) (“Sometimes the search warrant which is being executed will describe not only certain premises but also a person. There is no inherent defect in a single warrant which authorizes the search of a place and also a person, and thus a search of the named person when he is found at the place will be a valid search under the warrant.”).

The warrant was for contraband, not for mere evidence of a crime. Andrews was a felon and known to be a felon. It was a federal crime for him to possess a gun. See 18 U.S.C. §922(g). In addition, he did not have an FID card. See M.G.L. c. 140, §129C. The search for guns at 452 Kempton Street was a search for contraband in the circumstances of this case.

Defendant sought a ton of information about the investigative techniques used against him to potentially challenge the searches, and the court decides that Rule 16(a)(1)(E)(i) does not require the government to create information not already in existence. Also, some information sought was “sensitive” information that is not discoverable and would enable criminals to evade detection. United States v. Rigmaiden, 844 F. Supp. 2d 982 (D. Ariz. 2012)*:

As an initial matter, the Court concludes that Defendant has not shown his right to this information under Rule 16(a)(1)(E)(i). That rule requires the government to disclose documents or other tangible objects within its possession, custody, or control. The rule does not require the government to create documents that may provide information a defendant desires to obtain, nor does it require the government to present agents or witnesses for interviews or in-court examination. United States v. Mahon, No. CR09-0712-PHX-DGC, 2011 WL 5006737 at *3 (D. Ariz., Oct. 20, 2011) (citing cases). The rule “triggers the government’s disclosure obligation only with respect to documents within the federal government’s actual possession, custody or control.” United States v. Gatto, 763 F.2d 1040, 1048 (9th Cir. 1985).

In addition, the Court finds on the basis of Agent Morrison’s testimony at the ex parte hearing that the identities of individuals involved in locating the aircard is law enforcement sensitive information. Agent Morrison testified credibly that revealing the identities of these individuals could compromise their safety during future law enforcement missions. He also testified credibly that if the identities of these individuals were disclosed, they no longer could safely participate in such missions, a fact that would seriously limit the government’s law enforcement capabilities given the unique training and skill set of individuals involved in the operation. The Court finds that the identities of individuals involved in locating the aircard are subject to a Roviaro privilege. For reasons that follow, the Court also finds that Defendant has not made the showing required to overcome the privilege.

. . .

Questioning agents in order to challenge the government’s reliance on a good faith exception to the warrant requirement would not be helpful or relevant to the defense because such a good faith exception depends on the objective reasonableness of the law enforcement officers’ actions. See United States v. Leon, 468 U.S. 897, 919 n. 20 (1984) (“We emphasize that the standard of reasonableness we adopt is an objective one. Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers. Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment.”) (quotation marks and citations omitted).

Finally, the Court cannot conclude that Defendant’s desire to show the bad faith destruction of potentially exculpatory evidence justifies disclosure of the identities of agents who located the aircard. …