Relying on circuit precedent, a seizure and then search of a cell phone on an arrest with probable cause was reasonable. United States v. Johnson, 2012 U.S. Dist. LEXIS 99099 (E.D. Tex. June 18, 2012).*

The affidavit for the search warrant adequately showed that the defendant ran a drug trafficking organization from his business, and that justified an all records search warrant. “And, given the nature of the crime being investigated, the list of the items to be seized, although broad and covering many categories of items, was sufficiently particular and not over-broad.” United States v. Santiago Villaueva Pineda, 2012 U.S. Dist. LEXIS 98692 (N.D. Ga. June 4, 2012).*

2255 movant’s search claims were already subject to “full and fair litigation.” His claim that “the date stamp on the search warrant application equates with fraud is utterly frivolous, inasmuch as the stamp only indicates the day that the application was received by the clerk’s office following the application’s approval by the undersigned. His other arguments are also deficient, inasmuch as they rely upon self-serving allegations with no support other than the movant’s word. The movant demonstrates neither error by his counsel nor cause and prejudice, and these claims accordingly fail.” Hicks v. United States, 2012 U.S. Dist. LEXIS 99118 (S.D. W.Va. January 12, 2012).*

LawFare: Whole Body Scanners, the Fourth Amendment, and the Administrative Procedures Act by Paul Rosenzweig:

Whole body scanners (also known as Advanced Imaging Technology or AIT) are those new millimeter wave and backscatter scanners that the Department of Homeland Security is deploying in airports around the country — what some people call the “naked machine.” Today, the efforts of some to have the scanners removed took an interesting turn — with this mandamus petition filed by the Electronic Privacy and Information Center.

DHS began the deployment of AIT scanners in earnest in the aftermath of the failed Christmas bomb plot a couple of years ago. The government asserted that the scanners were safe and that their new imaging technology would assist in detecting bomb threats to aviation. Critics principally challenged the deployment as a violation of privacy and civil liberties — a challenge grounded, ultimately, in the requirements of the Fourth Amendment.

WaPo: Outcry erupts after San Francisco mayor considers stop-and-frisk policing amid crime spike by AP:

Mayor Ed Lee said he wanted to spark a discussion about a spike in violent crime when he mentioned that he was considering a controversial stop-and-frisk policy used by police in New York, Philadelphia and some other big cities.

Instead, he has heard an outcry from city officials, civil liberties groups and residents who were shocked that the mayor would explore such a strategy in the international tourist mecca known for its uber-liberal outlook.

. . .

Lee recently told a newspaper editorial board that San Francisco police officers need stop-and-frisk authority to get guns off the streets, and he was willing to consider what other cities were doing after his city was wracked by 10 homicides in June — its deadliest month in nearly four years.

ABAJ.com: It Isn’t Necessarily Big Brother, But Somebody Is Potentially Watching, Virtually All the Time by Martha Neil:

Think your posts on Facebook are private? Think again.

It’s only a computer scanning them, under ordinary circumstances, but certain content could flag a post for human review if criminal conduct is suspected, according to Reuters and Slate.

Tempted to say you’re hard at work when you’re not or for some other reason claim to be in a fictitious location? Government investigators can potentially use either your smartphone, or even an ordinary cellphone to pinpoint where you were at any given time. Although civil rights advocates are arguing that a warrant is required, global positioning system software within smartphones can’t be shut off even when the phone isn’t live, recent news articles point out.

Information from an identified citizen informant was sufficient for a stop for bank robbery, and probable cause developed from there. United States v. Elmore, 2012 U.S. Dist. LEXIS 98269 (M.D. Pa. July 16, 2012).*

The officers reasonably believed the consenter had authority since she was the owner of the property and said that defendant was no longer there. United States v. Deloney, 2012 U.S. Dist. LEXIS 98851 (W.D. Mo. June 20, 2012).*

After a consent search on 2254, the defendant did not show that anything remotely suggested that the consenter did not have authority to so so, so he would have lost on the merits of the Fourth Amendment issue, and his lawyer couldn’t be ineffective. Garrett v. United States, 2012 U.S. Dist. LEXIS 98966 (M.D. Fla. July 17, 2012).*

Officer’s deliberate failure to turn on recording equipment affects the court’s view of his credibility that the defendant’s vehicle hit the fog line three times without hitting the rumble strips next to the fog line. United States v. Younis, 2012 U.S. Dist. LEXIS 98774 (N.D. Ohio July 16, 2012)*:

As I noted in my comments at the conclusion of the evidentiary hearing, the failure, which I deem deliberate, not to activate the record function manually greatly affects my view of the trooper’s credibility. Particularly given the fact that recording continued for several minutes as another trooper was driving the truck to the post, the failure to record from the outset, or, at the latest on observing the first lane violation, is inexplicable.

There was ample recording capacity in the unit – indeed, none of the six hours’ capacity had been used during the trooper’s first six hours on duty. The failure to turn on the recording function when there was no reason not to do so substantially undercuts the credibility of the trooper’s testimony.

Unless recorded, allegations of repeated lane violations, especially within a relatively short distance, as the trooper claimed he saw happen, strain credulity. Like the notorious “dropsy” cases of yore, there is something inherently implausible in this sort of contention.

–Through the Wormhole, Science Channel (July 11, 2012)

And 99% of it is utterly meaningless.

arstechnica: ACLU: “reasonable suspicion” not good enough for GPS tracking; Advocacy group files an amicus brief that could provide a follow-up to Jones by Cyrus Farivar:

If you’re a student of the privacy and tech law worlds (or you just read Ars) then you’re probably familiar with last year’s Supreme Court decision, Jones v. United States. Earlier this year, the nine justices unanimously agreed that placing a GPS tracking device on a suspect’s car without a warrant was unconstitutional. That decision continues to have ripple effects throughout the privacy law world, and likely will for years to come.

However, as we pointed out in our January 2012 coverage, the justices disagreed amongst themselves about why it violated the Fourth Amendment, which protects citizens against unreasonable searches and seizures. One wing of the court found that installing the GPS device was an unwarranted physical trespass on private property and therefore illegal. The minority wing found the practice unconstitutional as it violated the doctrine known as “a reasonable expectation of privacy.”

Where a suspect in custody was told by his lawyer that a search of his office was imminent, the suspect’s call to his wife to move records was an offense under 18 U.S.C. § 1512(c)(1). United States v. Mann, 11-1504 (8th Cir. July 17, 2012):

Mann also was convicted of aiding and abetting tampering with evidence in violation of 18 U.S.C. § 1512(c)(1) by removing from Dr. Mann’s medical office a special power of attorney, a general power of attorney, pre-signed blank checks, and other financial documents related to Sandip Mann, her brother-in-law, before a search warrant was executed there. Section 1512(c)(1) prohibits, inter alia, corruptly “conceal[ing] a record, document, or other object, or attempt[ing] to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.”

An “official proceeding” includes a proceeding before a federal judge, court, or grand jury, 18 U.S.C. § 1515(a)(1)(A), and “an official proceeding need not be pending or about to be instituted at the time of the offense,” 18 U.S.C. § 1512(f)(1). Mann contends first that there was no “official proceeding” within the meaning of the statute because there was no official proceeding focusing on Sandip Mann specifically. She also argues that there is insufficient evidence that her actions were related to any official proceeding or that she corruptly concealed the documents in question.

Mann’s first argument is flawed. Section 1512(f)(1) specifically provides that no “official proceeding need … be pending or about to be instituted at the time of the offense.” Thus, § 1512(c)(1) requires only that Mann have acted with the intent to impair the documents’ availability to an official proceeding. It does not require the Government to prove the existence of an official proceeding focusing on Sandip Mann. Furthermore, notwithstanding Mann’s protestations to the contrary, the Government never argued that there was an official proceeding to investigate Sandip Mann specifically but rather argued that he was a person of interest in the ongoing federal grand jury investigation into the bombing, which clearly was an official proceeding within the meaning of the statute. See 18 U.S.C. § 1512(c)(1); 18 U.S.C. § 1515(a)(1)(A).

In some jurisdictions, they’d probably indict the lawyer, too.

Defendant stated enough to get a suppression hearing, and the government’s argument that inevitable discovery applies is fact dependent and a hearing has to be held. United States v. Shabazz, 2012 U.S. Dist. LEXIS 97521 (M.D. Pa. July 12, 2012).*

Defense counsel was not ineffective for not challenging the stop of the car because the officer that stopped him didn’t see anything but relied on another officer’s observation. He was also not ineffective for not challenging the search of the passenger’s purse since defendant had no standing in her purse. Graham v. United States, 2012 U.S. Dist. LEXIS 97418 (C.D. Ill. July 12, 2012).*

There were exigent circumstances for a protective sweep of the premises, and it was alternatively justified by consent. United States v. Moten, 2012 U.S. Dist. LEXIS 97479 (E.D. Pa. July 12, 2012).*

A claim that plaintiff was touched during her strip search stated a Fourth Amendment claim. There is no distinction between a search of a woman’s breasts and her genital area for invasiveness. Van Beek v. Robinson, 2012 U.S. Dist. LEXIS 98273 (E.D. Mich. July 16, 2012)*.

Defendants have dissected the patdown search into two components, claiming that the search of Plaintiff’s genital area is somehow distinct from the search of Plaintiff’s breasts. Defendants’ argument is not supported by any legal authority. Whether the search of Plaintiff was a reasonable and routine search-as Defendants’ contend-“depends upon all of the circumstances surrounding the search.” Montoya de Hernandez, 473 U.S. at 537. The search of Plaintiff, therefore, includes the search of her genital area, along with the search of her breasts. Having conceded that the search of Plaintiff’s breasts creates a genuine dispute of fact, Plaintiff has established a constitutional violation under the Fourth Amendment by Defendants’ own admission.

Slight inconsistency between the testimony of the officers did not mean that there was no reasonable suspicion. The facts here on the totality of circumstances show probable cause. United States v. Elmore, 2012 U.S. Dist. LEXIS 98269 (M.D. Pa. July 16, 2012).*

Defense counsel can’t be ineffective for not filing a motion to suppress that would have lost. The government clearly had probable cause to stop and arrest. Graham v. United States, 2012 U.S. Dist. LEXIS 97418 (C.D. Ill. July 12, 2012).*

Officers had probable cause based on responding to a man with a gun call and seeing defendant with a gun who fled and discarded the gun in flight. PC could also be based on the plain view before it all started. United States v. Moten, 2012 U.S. Dist. LEXIS 97479 (E.D. Pa. July 12, 2012).*

Warrantless installation of a GPS tracker on defendant’s vehicle violated the Fourth Amendment under Jones, but it wasn’t the cause of defendant’s stop. He was being followed, and committed a traffic offense that led to his stop, and a drug dog was ultimately called in. State v. Adams, 397 S.C. 481, 725 S.E.2d 523 (2012):

Here, the tracking device was installed while Adams’s vehicle was parked in a public parking garage, and the device was used to monitor the vehicle’s movements while it was on public streets and highways. Under Jones, the Department’s installation of the device on Adams’s vehicle and use of that device to monitor the vehicle’s movements constituted a “search.” Therefore, the Department’s failure to obtain a warrant made that search unreasonable and resulted in a violation of Adams’s constitutional rights. Nevertheless, we must still determine whether that violation required suppression of the drugs seized from Adams’s person. For the reasons below, we find it did not.

. . .

Here, Sergeant Blair had probable cause to stop Adams’s vehicle because he witnessed Adams commit two traffic violations. The officers acted reasonably in instructing Adams to step out of the vehicle while they waited for a license and registration report. Sergeant Blair was also permitted to walk his drug dog around the vehicle while waiting for the completion of Adams’s license and registration check. The first alert occurred a mere five to six minutes after the traffic stop began, and no evidence in the record indicates the drug sniff extended the duration of the stop. Consequently, the officers’ conduct up to that point was within constitutional bounds. Whether the drugs were admissible depends upon whether the resulting pat-down complied with Adams’s Fourth Amendment rights.

Defendant answered his door in his underwear and was told he was under arrest. He asked if he could get dressed, and an officer went to his bedroom with him. The room was checked by a protective sweep. Defendant’s conduct in the bedroom led the officer to suspect a weapon, so the officer lifted the mattress and found a gun. That was lawful under Chrisman. Commonwealth v. Quilter, 81 Mass. App. Ct. 808, 969 N.E.2d 163 (2012):

The firearm was not discovered during the protective sweep after the police entered the bedroom. Rather, it was discovered when an officer, suspicious of the defendant’s conduct — sitting at the end of the bed farthest away from the closet — found the firearm under the mattress where the defendant had been sitting. While the judge stated that the officer was “acting on a hunch — an excellent one, but a hunch nevertheless,” the facts instead indicate that the officer’s decision to look under the mattress was objectively reasonable. It is not unreasonable “for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer’s need to ensure his own safety — as well as the integrity of the arrest — is compelling.” Washington v. Chrisman, 455 U.S. 1, 7, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982). “[A] police officer’s decision how and where to conduct the search is ‘a quick ad hoc judgment.'” Commonwealth v. Elizondo, 428 Mass. 322, 324, 701 N.E.2d 325 (1998), quoting from United States v. Queen, 847 F.2d 346, 352 (7th Cir. 1988).

A bar had no reasonable expectation of privacy in the public area of its establishment under Barlow’s. “Even if, as Dodge City argues, it had a subjective reasonable expectation of privacy to exclude persons under 21 years old, which it did not, Dodge City lost that interest when it voluntarily admitted [the minor] onto the premises.” Dodge City Saloon, Inc. v. Liquor Control Bd., 166 Wn. App. 828, 271 P.3d 363 (2012).

Just because a judge denies a motion to suppress does not mean that the judge is biased against the defendant. United States v. Harris, 2012 U.S. Dist. LEXIS 26578 (W.D. Mo. January 24, 2012).*

In an Anders brief, the search warrant was valid. State v. Jones, 88 So. 3d 1120 (La. App. 5th Cir. 2012).*

Here the officers had an arrest warrant for defendant and performed a “protective sweep” to corral the children in the house so they would be attended to when the officers left with defendant. This was reasonable. Defendant consented to retrieving his ID from the bedroom and the seizure of his cell phones. United States v. Rivero, 2012 U.S. Dist. LEXIS 26867 (N.D. Ga. January 20, 2012).*

Where defendant was under state probation that included a search term and he was revoked and put back on probation with new conditions and no express search term, California law precluded a search term under such circumstances. United States v. Silva, 2011 U.S. Dist. LEXIS 152967 (N.D. Cal. March 7, 2011).*

Plaintiff was believed to have purchased t-posts for his property with a stolen check. Some were installed on his property and some were in his truck when he was stopped. They were in plain view, and the officer had probable cause for the seizure. Thompson v. City of Shawnee, 464 Fed. Appx. 720 (10th Cir. 2012).*

Defendant was felony fleeing from officers and stopped and attempted to hide. He was arrested, and his car was properly impounded after his arrest. United States v. Scott, 2012 U.S. Dist. LEXIS 14053 (W.D. Mo. January 5, 2012).*

Defendant was not free to go in his motel room, but he was not handcuffed, moving around the room. Officers did not Mirandize him because there was no need to interrogate him. The lack of a Miranda warning did not make the consent invalid. United States v. Hanson, 2012 U.S. Dist. LEXIS 23356 (D. Alaska February 15, 2012).

When defendant’s vehicle was stopped, the officer knew that it was unregistered. That was cause for the stop, despite the ulterior motive, and defendant consented. United States v. Justice, 464 Fed. Appx. 448, 2012 FED App. 0224N (6th Cir. 2012) (unpublished).*

Defendant’s suppression hearing predated Brendlin, and the trial court held that he couldn’t challenge the stop as a passenger. Although he could, there was cause for the stop. State v. Wright, 2012 Tenn. App. LEXIS 118 (February 23, 2012).*

The search warrant for property failed to include persons in the description of the place to be searched, and the warrant thus did not permit a search of defendant’s person. The good faith exception did not save it because the search warrant was facially deficient for a search of the person. United States v. Gregg, 833 F. Supp. 2d 535 (E.D. Va. 2011), Magistrate’s recommendation at United States v. Gregg, 2011 U.S. Dist. LEXIS 87129 (E.D. Va., July 20, 2011):

On the basis of Groh, the Court concludes the August 31 warrant did not provide Mills a basis for searching Gregg’s person. In order for the warrant to permit Mills to search Gregg, she needed “written assurance that the Magistrate actually found probable cause” to search Gregg. Id. at 560. The warrant provided no such assurance. The warrant contained neither language empowering Mills to search Gregg nor any reference to another document demonstrating the magistrate’s belief that there was probable cause to search Gregg. On its face, then, the warrant and the supporting affidavit are in conflict, because it appears the magistrate rejected the language in the affidavit permitting officers to search persons inside the home. Without a reference to that language, the warrant lacked any indication that the magistrate found probable cause to search any persons inside the home.

. . .

Furthermore, to the extent Leon sheds light on these facts, it expressly weakens the government’s argument. Among the circumstances under which the Supreme Court noted that the good faith exception would not apply is when a warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Id. at 924. See United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995). That language describes the situation leading up to the execution of the August 31 warrant. As the Court has explained, the warrant omitted any reference to persons inside the home, making it unreasonable for an officer to conclude from the warrant that there was probable cause to search anyone inside.

The legislature did not clearly overrule the common law that a homeowner may resist an unlawful entry into his home. Defendant was charged with obstruction after struggling with police officers who entered his house. The state carries the burden of showing that the officers entered legally. People v. Moreno, 491 Mich. 38, 814 N.W.2d 624 (2012):

In this case, we review whether defendant was properly charged with resisting and obstructing a police officer under MCL 750.81d after defendant struggled with officers who had entered his home unlawfully. To resolve this issue, we must address whether MCL 750.81d abrogates the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas. We conclude that the statute did not abrogate this right.

While the Legislature has the authority to modify the common law, it must do so by speaking in “no uncertain terms.” Neither the language of MCL 750.81d nor the legislative history of this statute indicates with certainty that the Legislature intended to abrogate the common-law right to resist unlawful arrests or other invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule People v Ventura, 262 Mich App 370, 686 NW2d 748 (2004), to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest. Because the Court of Appeals in this case relied on Ventura and extended its holding to the context of illegal entries of the home, we reverse the judgment of the Court of Appeals and remand this matter to the trial court. On remand, we instruct the trial court to grant defendant’s motion to quash the charges on the basis of its ruling that the officers’ conduct was unlawful.

. . .

In this case, the Court of Appeals held that “[t]he fact that defendant refused entry to the officers unless they obtained a search warrant is indicative of defendant’s knowledge of their status as police officers and that they were engaged in the performance of their official duties.” There is no question that defendant knew that the men at his door were police officers. However, the officers wanted to enter defendant’s home without a warrant, and one of the officers physically prevented defendant from closing the door to his home. Accordingly, defendant’s refusal to allow the officers into his home is not conclusive of whether defendant had reasonable cause to know that the officers were “engaged in the performance of their official duties.” Consistently with the common-law rule, we conclude that the prosecution must establish that the officers’ actions were lawful.

. . .

IV. CONCLUSION

While the Legislature has the authority to modify the common law, it must do so by speaking in “no uncertain terms.” Neither the language of MCL 750.81d nor the legislative history of this statute indicates with certainty that the Legislature intended to abrogate the common-law right to resist unlawful arrests or other unlawful invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule Ventura to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest.

There is a lot to be said for making the police think twice before a spurious entry into somebody’s house, and that’s what the common law does.

Compulsory HIV testing of accused sex offenders satisfies the special needs requirement because it is a public health issue, not a criminal law issue. Imposing a probable cause standard would be “entirely impracticable” [not impractical?] because of lack of immediate outward manifestations. State v. Handy, 2012 VT 21, 44 A.3d 776 (2012).*

Fourth Amendment law is clear that mobility of a car makes for exigency for the automobile exception. Because the defendant did not argue that the state constitution should be separately considered as in other states where a warrant would be required if there was time, the court declines to decide case on state constitution. State v. Sanchez-Loredo, 294 Kan. 50, 272 P.3d 34 (2012).*

The officers observed defendant committing a crime, so there was probable cause for the stop and search of his car. Marked money was in plain view torn up on the floorboard. Therefore, defense counsel couldn’t be ineffective. Cooper v. United States, 2012 U.S. Dist. LEXIS 39826 (C.D. Ill. March 23, 2012).*