Syllabus: “Because the Minnesota handgun statute that prohibits a person from carrying a handgun ‘in a public place’ defines ‘public place’ only as government land or as private land that is clearly dedicated to the public for public use, police officers do not have reasonable suspicion to detain a man merely on a report that he possesses a gun at a private residence and on their finding him walking from that residence into its front yard.” State v. Theng Yang, 814 N.W.2d 716 (Minn. App. 2012).

Defendant’s stop was factually based and valid without regard to pretext. Because the trial court’s suppression order was based on the finding of an illegal stop, the case is remanded for a determination of the independent basis for the inventory. People v. Vissarriagas, 2012 CO 48, 278 P.3d 915 (2012).*

The product of the wiretap in this case gave probable cause to believe that defendant had drugs in his car when he showed up as predicted. United States v. Carey, 2012 U.S. Dist. LEXIS 72846 (S.D. Cal. May 24, 2012).*

A juvenile’s school photo ID was used in a photo lineup. He claimed an expectation of privacy in it, and the trial court granted a motion to suppress. Remanded for a determination of how all this came about because it can’t be determined whether there is a reasonable expectation of privacy on this record. “Such evidence might also help resolve whether the student identification card and photograph form part of the confidential ‘student record’ under State and Federal education regulations; if they are part of the student record, that fact would also bear on whether the juvenile had a reasonable expectation of privacy in the photograph.” Commonwealth v. Zachary Z., 462 Mass. 319, 968 N.E.2d 381 (2012).*

The state constitution does not impose a reasonable suspicion standard before a drug dog can be used on a vehicle. People v. Esparza, 2012 CO 22, 272 P.3d 367 (Colo. 2012).

Sobriety roadblock was set up by a supervisory officer two days earlier by surveying in the area. The fact only two officers manned the roadblock was not an issue to make it unreasonable. State v. Brown, 315 Ga. App. 154 726 S.E.2d 654 (2012).*

The district court didn’t find probable cause for arrest, but the appellate court does, so the false arrest claim is foreclosed. “In this case there was certainly arguable probable cause. The undisputed evidence showed that within seven minutes of being informed of a possible break-in and assault, Turner spotted Fleming in an alleyway approximately one-half block from the crime scene. Fleming was the only person in the area and he substantially matched the description of the intruder that one of the victims had given to Turner—he was wearing a baseball cap, t-shirt, and camouflage cargo shorts. From this evidence, a police officer could have reasonably, if mistakenly, believed that probable cause existed to arrest Fleming. This is true even if Haleigh had described Turner’s t-shirt as ‘light-colored’ because witnesses often have minor details incorrect.” Fleming v. Livingston County, 674 F.3d 874 (7th Cir. 2012).*

Plaintiff’s injuries were caused by the defendants’ illegal warrantless searches and penalties without due process. However, the claim was barred by issue preclusion because of a state court order that essentially decided the issues and could have heard the § 1983 claim. Cycle Chem, Inc. v. Jackson, 465 Fed. Appx. 104 (3d Cir. 2012) (unpublished):

All three requirements are met here. The judgment rendered by the New Jersey Appellate Division was valid, final and on the merits. There is also identity of the parties, for Cycle Chem was a party to the first action and the Defendant, the DEP Commissioner, is the DEP’s privy. See Jones, 29 F.3d at 830 (finding that the defendants, who were employees of a state agency, were in privity with that state agency, which was the defendant in the first action); see also Schuster v. Martin, 861 F.2d 1369, 1373 (5th Cir. 1988) (“It is also a general principle of the law of preclusion that state officials are, as a matter of law, in privity with the agency or department in which they serve.”).

Finally, the claims presented in this action grow out of the same transaction or occurrence as the claims in the first action; indeed, the New Jersey Appellate Division considered and rejected the same claims that Cycle Chem brings here. Cycle Chem’s claims here stem from the DEP’s allegedly illegal search of Cycle Chem’s facilities and imposition of penalties on Cycle Chem for impeding the attempted search. In its opinion, the Appellate Division listed Cycle Chem’s arguments, among them that the DEP “lacked authority to conduct a warrantless search” and that the penalties were wrongfully imposed. … The Appellate Division then rejected those arguments, discerning “no basis in the record of this matter justifying a departure from the general rule permitting ‘administrative,’ i.e. warrantless, searches of highly or pervasively regulated industries” and finding that the penalties were therefore properly imposed. (Id. at A38-39.) By doing so, the Appellate Division demonstrated that it would have exercised its original jurisdiction to resolve the § 1983 claims had Cycle Chem brought them in state court. See Jones, 29 F.3d at 831-32 (predicting whether a state court would have exercised original jurisdiction over a § 1983 claim in an appeal from an administrative decision). Accordingly, res judicata bars a federal court from entertaining Cycle Chem’s suit.

While the 911 calls did not say that there was a domestic disturbance in progress, the officer could reasonably assume that when he arrived and assessed the situation, and that was exigency for an entry on these facts. United States v. Ladeaux, 2012 U.S. Dist. LEXIS 37251 (D. S.D. March 16, 2012).*

Defendant lost on his arrest issue on the merits on appeal, so he can’t pursue it on a 2255. Martinez v. United States, 2012 U.S. Dist. LEXIS 36781 (D. S.D. March 19, 2012).*

Officers had reasonable suspicion first from a CI tip that “Little Rob” was dealing meth from a red F-150. They later learned that it was defendant. Then, another officer in an “ongoing investigation” [never telling us the quality of this information] told this officer that defendant would be delivering meth and they set up surveillance. This was reasonable suspicion when defendant showed up. The traffic stop was reasonable based on a traffic offense. United States v. Harrelson, 465 Fed. Appx. 866 (11th Cir. 2012) (unpublished).* [This case essentially says that a search on reasonable suspicion was proper because it never says there was probable cause for the search of the vehicle after the stop on reasonable suspicion or the traffic offense. If that’s what it means, it’s wrong. This may just be sloppy writing.]

A citizen informant’s report that his store was a crime victim was a sufficient basis for a stop. State v. Wiggins, 2012 Tenn. Crim. App. LEXIS 178 (March 20, 2012).

Factual disputes on excessive force as shown by the video was enough to deny qualified immunity. Staten v. Tatom, 465 Fed. Appx. 353 (5th Cir. 2012).*

Appellate counsel’s decision not to appeal the alleged lack of probable cause for the search warrant was justified because it was a loser issue. Ford v. United States, 2012 U.S. Dist. LEXIS 38296 (E.D. Mo. March 21, 2012).*

Defendant worked for a business as a bookkeeper and he kept records on his work computer and one the company provided at this house. While he was on a trip, the company received mail that suggested that defendant was embezzling from it. They checked the work computer and did not find records for a whole year. They went to his house and asked for the work computer which his wife provided. Back at work they looked through the computer using the company password and found the evidence of embezzlement, which they gave to the government. This was all a private search not governed by the Fourth Amendment. United States v. Brown, 2012 U.S. Dist. LEXIS 54382 (S.D. Ind. April 18, 2012).*

It was reasonable to impound a vehicle that would have had to be left in a high crime area and was at risk of being broken into. There was no need to give the car to a present potential driver when there was no showing of insurance to drive it and the registration was expired. United States v. McKinnon, 681 F.3d 203 (5th Cir. 2012)* [Note: The court almost lost me with the insurance comment because that would be shifting the burden. They should have left that out.]

There was reasonable suspicion for defendant’s stop and frisk because it was a high crime area, defendant was walking funny like he had a gun on him, and when he “bladed” the officer could see the outline of a gun. United States v. Carson, 2012 U.S. Dist. LEXIS 54372 (D. N.J. April 18, 2012).*

The reliability for a dog alert as probable cause can be established by the testimony of the officer alone. Some inaccuracies don’t undermine the dog’s reliability because none is infallible. The dog alert can result in searches of containers, here an envelope. United States v. Stubblefield, 682 F.3d 502, 2012 FED App. 0183P (6th Cir. 2012):

… Although Earvin correctly points out that no drugs were discovered in Earvin’s rental car following Arrow’s positive alert, this fact is not dispositive. The crucial question for reliability is not whether a dog is actually correct in the specific instance at hand—no dog is infallible—but rather whether the dog is likely enough to be right so that a positive alert “is sufficient to establish probable cause for the presence of a controlled substance.” Diaz, 25 F.3d at 394. “This court has defined probable cause as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion, and is said to exist when there is a fair probability, given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place.” United States v. Howard, 621 F.3d 433, 453 (6th Cir. 2010) (internal quotation marks omitted) (emphasis added).

Because Arrow’s reliability and proper training have been established, Earvin’s next argument—that Arrow’s alert did not justify opening the envelope containing the first set of counterfeit documents—is easily dismissed. An alert by a properly trained and reliable drug-detection dog “is sufficient to establish probable cause for the presence of a controlled substance.” Diaz, 25 F.3d at 394. If the police have probable cause to search a lawfully stopped vehicle for contraband, then the police have probable cause to search every part of the vehicle and all containers found therein in which the object of the search could be hidden. United States v. Crotinger, 928 F.2d 203, 205 (6th Cir. 1991) (citing United States v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)). So Arrow’s alert gave the officers probable cause to search the car and any containers capable of hiding drugs.

In this drug case, the police knocked and announced, and the door was open and unlocked and they came in after a brief wait. Because the subject of the search was drugs and they were easily disposed of, the shortness of time was reasonable under the circumstances. State v. Terry, 207 N.C. App. 311, 699 S.E.2d 671 (2010).*

Defendant drove a few inches over the fog line for an estimated 500′, and that justified the stop. The officer smelled raw marijuana, and that justified a search of the vehicle. Dods v. State, 2010 WY 133, 240 P.3d 1208 (2010).*

In a stop at 2:30 a.m., a dispatch report that the vehicle was likely involved in a shooting coupled with the motorist’s nervousness justified a patdown of the driver. United States v. Rochin, 2010 U.S. Dist. LEXIS 107708 (D. N.M. September 20, 2010).*

ABAJ.com: Patriots Debate: The Data Question: Should the Third-Party Records Doctrine Be Revisited? by Orin Kerr and Greg Nojeim:

Introduction

If a suspected thief has left written records of his crime in a friend’s desk, can the police simply subpoena the friend for the records in the desk or should that be treated as a search of the suspect’s property?

That question is at the heart of the “third-party records doctrine,” which has provided guidelines for criminal investigations since the late 1970s. In essence, the doctrine holds that information lawfully held by many third parties is treated differently from information held by the suspect himself. It can be obtained by subpoenaing the third party, by securing the third party’s consent or by any other means of legal discovery; the suspect has no role in the matter, and no search warrant is required.

All Writs Act, 28 U.S.C. § 1651, can be used for post-indictment DNA testing to attempt to connect defendant to gun in indictment. United States v. Barner, 2012 U.S. Dist. LEXIS 101305 (W.D. N.Y. July 19, 2012):

The All Writs Act provides that courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a). It “invests a court with a power essentially equitable and, as such, not generally available to provide alternatives to other, adequate remedies at law.” Clinton v. Goldsmith, 526 U.S. 529, 537 (1999). “Courts may rely on [the All Writs Act] to issue orders necessary for conducting factual inquiries.” United States v. Li, 55 F.3d 325, 329 (7th Cir. 1995).

While conceding that the it “would most likely” have been appropriate for the government to issue a grand jury subpoena for his saliva at the pre-indictment stage of the case (defendant’s Response [51], ¶25), defendant argues that since the government failed to take advantage of this alternative remedy (which is no longer available), no order may be issued under the All Writs Act (id.) (citing United States v. Vanwort, 887 F.2d 375, 387 (2d Cir. 1989), cert. denied, 495 U.S. 906 (1990) (“it is clearly improper to utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial”)). That argument was expressly rejected in Li, involving use of the All Writs Act to compel handwriting exemplars following an indictment: “The post-indictment nature of the order did not diminish the trial court’s authority to issue the order. The district court had authority to require the handwriting exemplars.” 55 F.3d at 329.

United States v. Marshall, 2012 U.S. Dist. LEXIS 101300 (W.D. N.Y. July 19, 2012), too.

New American: Feds Sue Telecom for Fighting Warrantless Search by Michael Tennant:

The Justice Department is suing a telecommunications company for challenging a request from the Federal Bureau of Investigation for customer information — despite the fact that the law authorizing the request explicitly permits such challenges.

According to documents provided by the Electronic Frontier Foundation (EFF), which is representing the telecom, the company (whose name is one of the many redacted details in the documents) received a national security letter (NSL) in 2011. An NSL is essentially a self-issued search warrant whereby the FBI bypasses the Fourth Amendment and demands information about an individual without bothering to obtain a judge’s consent — and forces the recipient of the letter to keep mum about it because disclosure would allegedly harm national security. NSLs were employed somewhat sparingly prior to 2001 but became widely used — and abused, as the Justice Department’s inspector general reported in 2007 — after the misnamed Patriot Act loosened the requirements for issuing them.

Giving a co-conspirator a key to the building because he regularly used it and the password to turn off the burglar alarm was sufficient to give him apparent authority to consent to a search. United States v. Wright, 2012 U.S. Dist. LEXIS 100676 (E.D. N.Y. July 19, 2012):

Here, in the testimony at the hearing, the Government proved that Spears was a co-conspirator with Wright with regard to the possession and distribution of drugs; that Wright gave Spears a key to the subject apartment in Mineola; that Spears used the key to enter the apartment on a number of times prior to May 17, 2008; that Spears knew the password to turn off the alarm in the apartment; that Spears was present in the apartment when the alarm was installed, when Wright told the installer that “the other black male could know the password to the alarm;” and that prior to May 17, 2008, Spears had stayed and slept in the apartment on a number of occasions, sometimes without Wright being present.

Defendant’s motion to suppress was sufficiently detailed [not a lot but still enough] to put the state on notice what the issues were at the suppression hearing, and the state was not entitled to a continuance at the hearing to get the dog handler there to testify to finding the drugs. State v. Rife, 2012 Ohio 3264, 2012 Ohio App. LEXIS 2856 (4th Dist. July 10, 2012).

Walking through the parking lot of a closed business at 1:30 am to an illegally parked car is reasonable suspicion. State v. Pittman, 2012 Ohio 3297, Ohio App. LEXIS 2900 (6th Dist. July 20, 2012).*

When the officer stopped defendant for a headlight being out, she was asked “is there anything in the car I should be concerned about,” and she produced a pipe. That was enough to get her out of the car and extend the stop further. State v. McDaniel, 2012 Ohio 3286, 2012 Ohio App. LEXIS 2887 (2d Dist. July 20, 2012).*

Politico: W.H.: Surveillance exceeded limits by AP:

In a rare move, the Obama administration acknowledged Friday that the government’s surveillance efforts have exceeded legal limits on at least one occasion.

The Office of the Director of National Intelligence made the comment in a letter to Democratic Sen. Ron Wyden.

Wyden is a member of the Senate Intelligence Committee. The Oregon Democrat has suggested that the government may be reviewing the emails and phone calls of law-abiding Americans in the U.S. who are at the other end of communications being monitored abroad by the U.S. government.

And wired.com.

Defendant’s consent to search the car included the kickplate which could be removed without tools. Cedeno v. State, 2012 Tex. App. LEXIS 2716 (Tex. App. – Corpus Christi-Edinburg April 5, 2012), Released for Publication May 17, 2012

A motion to reconsider is appropriate to bring attention to something that changed or is missing, but this one doesn’t, and it’s also untimely. United States v. Lopez, 2012 U.S. Dist. LEXIS 100749 (D. Kan. July 20, 2012).*

The police received an anonymous call about a black Saturn in a particular location occupied by a man with a gun who was hunting another man who’d robbed him so he could shoot the robber. The first effort to find the car was fruitless, but later in the night the car was found and the details were corroborated. The officers had reasonable suspicion. United States v. Garcia, 2012 U.S. Dist. LEXIS 99754 (S.D. N.Y. July 10, 2012).*

BaltimoreSun.com: Maryland law enforcement agencies resume DNA collections by Yvonne Wenger:

Maryland Attorney General Douglas F. Gansler has asked the Supreme Court to decide whether collecting the genetic information before a person is convicted violates the Fourth Amendment right to be free from unreasonable search and seizure. The samples are used to link suspects to DNA evidence from previous crime scenes.

Roberts’ order is a first step in a long process leading up to the Supreme Court’s decision whether to take up the issue, which has split lower courts across the country. The federal government and about half the states allow police to collect DNA after an arrest.

The Maryland Court of Appeals, the state’s highest court, blocked the collections in April. A chief concern for those opposed to the practice is that the DNA samples, unlike fingerprints, provide access to a significant amount of personal information.

WSJ.com: Spy Agency Activities Violated Fourth Amendment Rights, Letter Discloses by Sibhan Gornman:

WASHINGTON—National Security Agency spy activities on at least one occasion have violated the Fourth Amendment protections against unreasonable search and seizure, according to a ruling by the U.S.’s secret national security court.

The ruling, which was revealed Friday in a declassified statement, represented the first time the government has acknowledged U.S. spy activities violated the constitution since the passage of a 2008 law that overhauled surveillance laws following the uproar over the NSA’s warrantless wiretapping program in the George W. Bush Administration.

Note: The FISA court has issued one opinion, posted here. It operates virtually in secret. Only the government seems to know it exists. Search “FISA” on this website; there are about 20 entries. Some depressing. FISA operates largely extra-judicially with little control, and I recall, but can’t readily find, that the government admitted regularly violating FISA years ago in a letter to the FISA court.

On my drive to work everyday I pass by Metropolitan Tower, where, on the 39th floor, sits the chambers of Senior Judge Morris Sheppard Arnold of the Eighth Circuit. Hard to believe that it is one of the pivot points of the U.S. national security apparatus, but it is. He became the presiding judge of that court in May.

We shared a flight back to Little Rock from St. Louis after argument many years ago. He wasn’t on my panel. I asked him about whether he had any interesting cases. With a wry smile, he said: “Well, sometimes the government has to lose.” He’s a Republican appointee, like Souter. Every once in a while I run into him in restaurants or on the street.

Picture the HBO show “Deadwood,” and the FISA applicants are the cowboys and the denizens of Deadwood. He’s the sheriff. Way better than what we’ve had in the past, believe me.

Wired.com: GPS Hijacking Catches Feds, Drone Makers Off Guard by Lorenzo Franceschi-Bicchierai:

On June 19, when University of Texas researchers successfully hijacked a drone by “spoofing” it — giving it bad GPS coordinates – they showed the Department of Homeland Security how civilian drones could fall into the wrong hands, exposing a potentially serious security flaw. It was exactly what Todd Humphreys, the lead researcher, anticipated in a TEDx talk in February: “You can scarcely imagine the kind of havoc you could cause if you knew what you were doing with a GPS spoofer.”

On Thursday, a month after the experiment, the investigations panel of the House Homeland Security Committee held a hearing on how civilian drones could affect the security of the American airspace. “These findings are alarming and have revealed a gaping hole in the security of using unmanned aerial systems domestically,” said Rep. Michael McCall, the panel’s chairman. “Now is the time to ensure these vulnerabilities are mitigated to protect our aviation system as the use of unmanned aerial systems continues to grow.”

verge.com: Secret surveillance and gag orders highlight weak US data privacy laws by Joshua Kopsteinon:

From cell phone tower dumps to the NSA’s surveillance compound in Utah, the number of tools that government agencies use to obtain and store the communications records of phone and internet subscribers has expanded immensely in the past few years. An article in yesterday’s Wall Street Journal focuses on an unnamed phone company in Northern California who, with the help of the EFF, has been fighting since May of 2011 against one method that’s particularly alarming in its obscurity. The National Security Letter (NSL), created by statute in the 1980s and expanded greatly in power by the USA Patriot Act in 2001, is a kind of secret subpoena that can give the FBI free reign over an American citizen’s cell phone data — including text messages, call logs, location data, and more — without the need for judicial approval or oversight.