Defendant left property with another while he was incarcerated. This was not formalized, but it was a relationship that was more than just a subjective expectation of privacy. Contrary to the government’s argument, it was not precipitous, like the cases where the defendant gave drugs to somebody to store just before the police arrived. Accordingly, the court will get to the merits of the search claim, and the government is ordered to respond. United States v. Eldridge, 2012 U.S. Dist. LEXIS 81442 (W.D. N.Y. June 12, 2012).*

Defendant’s IAC claim against defense counsel for not filing a motion to suppress is denied because the guilty plea expressly waived it. United States v. Ortiz, 2012 U.S. Dist. LEXIS 81137 (S.D. Tex. June 12, 2012).*

Defendant was stopped for alleged DUI, and made to go through a field sobriety test. She was tested for alcohol and drugs. A jury question remained on whether the officer just made it up to justify the stop. Green v. Throckmorton, 681 F.3d 853, 2012 FED App. 0175P (6th Cir. 2012).*

One defendant’s cell phone could be seized and searched under his parole search condition, and the other defendants had no standing in his cell phone. United States v. Delvalle, 2012 U.S. Dist. LEXIS 38547 (C.D. Cal. March 20, 2012).*

There was no reasonable suspicion to extend the stop in this case, and that unlawful detention led to an invalid consent. State v. Wendler, 47 Kan. App. 2d 182, 274 P.3d 30 (2012)*:

We conclude that under the totality of the circumstances, the duration of the traffic stop was measurably extended after the purpose of the traffic stop—to investigate Wendler’s commission of a traffic violation—was concluded. Moreover, during the investigation into the traffic violation, the officer did not gain reasonable suspicion of illegal drug activity necessary to lawfully extend the scope and duration of the detention. Finally, we conclude the unlawful detention of Wendler infected or tainted his consent to answer questions and to search the RV. Accordingly, we affirm the ruling of the district court suppressing the marijuana seized from the RV and the dismissal of charges against Wendler.

An objectively reasonable mistake as to defendant looking like another man who was wanted when defendant was pointed out to him from a photograph supported his stop and ordering him from the car, fearing he was an armed fugitive. When stopped, defendant admitted he had a gun on him, and then the mistake in identity was discovered. Defendant, however, was a FIPF. United States v. Phillips, 679 F.3d 995 (8th Cir. 2012).*

Defendant was effectively in custody when he was talking to a DEA officer in a DEA truck, and he couldn’t leave, so he had to have been Mirandized. United States v. King, 2012 U.S. Dist. LEXIS 76988 (N.D. Miss. June 4, 2012)*:

Although the government maintains that King was free to go, this position is in direct conflict with Douglas’ statements to the defendant. King could not leave until he “talked” to Douglas inside the DEA truck. “Talking” is what Miranda is all about. Therefore, the defendant was in custody at the time he confessed and was entitled to Miranda warnings. Douglas failed to warn the defendant before beginning the interrogation. He told King about drug arrests in Greenville, Mississippi stemming from the DEA investigation. King then confessed. Since Agent Douglas failed to give Miranda warnings to the defendant, the confession must be excluded from evidence.

Overbroad investigative subpoena for defendant’s text messages violated his reasonable expectation of privacy. (The court includes stout support for a reasonable expectation of privacy in the product of a cell phone (omitted here, but read the opinion); just because government can get to something like the provider records doesn’t mean there is no reasonable expectation of privacy.) State v. Clampitt, 364 S.W.3d 605 (Mo. App. 2011):

The rationale used by the Warshak court in establishing individuals’ reasonable expectation of privacy in the contents of their email is equally applicable to cell phone users’ expectation of privacy in the contents of their text messages. Cell phone providers have the ability to access their subscribers’ text messages; however, the providers’ ability to access those messages does not diminish subscribers’ expectation of privacy in their text message communications. Rather, subscribers assume that the contents of their text messages will remain private despite the necessity of a third party to complete the correspondence. Callers have long enjoyed Fourth Amendment protection of the information they communicate over the phone. We see no reason why the same information communicated textually from that same device should receive any less protection under the Fourth Amendment.

Furthermore, society’s continued expectation of privacy in communications made by letter or phone call demonstrates its willingness to recognize a legitimate expectation of privacy in the contents of text messages. What individuals once communicated through phone calls and letters can now be sent in a text message. Thus, as text messaging becomes an ever-increasing substitute for the more traditional forms of communication, it follows that society expects the contents of text messages to receive the same Fourth Amendment protections afforded to letters and phone calls. We therefore find that the trial court did not err in concluding that Clampitt had a reasonable expectation of privacy in the contents of his text messages.

. . .

The investigative subpoenas issued in this case were not sufficiently limited in scope or relevant in purpose. The trial court found that the State obtained copies of all text messages sent to and received by Clampitt for a thirty-two day period, which included the date of the accident and the following thirty-one days. The subpoenas did not request text messages Clampitt sent to or received from specific numbers; rather, the State obtained copies of all incoming and outgoing text messages, regardless of the recipient or sender. Furthermore, the Special Prosecutor testified that “[t]he period of time [specified in the subpoenas was] extended until such time as the defendant admitted that he was the driver of the vehicle.” In other words, the State issued each consecutive subpoena because Clampitt made no admission within the time specified in the previous subpoena. If no evidence with which to charge Clampitt had come about, presumably the State would still be issuing subpoenas periodically in the hope of securing something it could use against him. The trial court found that the subpoenas were nothing but a fishing expedition, a finding amply supported by the record, and a practice uniformly recognized by the courts to be improper. Thus, even though the State contends the subpoenas were limited in scope because each subpoena requested text messages sent and received within specified dates, the only significance of those specified dates was that Clampitt had yet to admit he was the driver of the vehicle at the time of the accident. Therefore, by requesting all of Clampitt’s incoming and outgoing text messages up until the time he came forward as the driver of the vehicle, the State failed to sufficiently limit the scope of information it requested in the investigative subpoenas.

. . .

Furthermore, the State had no relevant purpose for requesting Clampitt’s incoming and outgoing text messages beyond the time of the accident. The trial court found that “the state was eavesdropping to see if the defendant would make an admission.” By the Special Prosecutor’s own testimony, the State sought the contents of Clampitt’s text messages for the sole purpose of obtaining an admission from Clampitt as to who was driving the vehicle at the time of the accident. …

Also, the good faith exception applies to police conduct, not overbroad prosecutor’s investigative subpoenas. And, Herring provides no recourse either.

One could almost say this is channeling the [hopeful] prospects of Jones, the day after and without citing it.

Search incident of defendant’s vehicle was invalid because it was for a traffic offense and there was no evidence of the crime. Since this arrest was custodial, the vehicle was improperly impounded because it was lawfully parked and the officer made no effort to see if the passenger would drive the vehicle, thus obviating impoundment. Canino v. State, 314 Ga. App. 633, 725 S.E.2d 782 (2012).*

A visitor to a house ran the risk that the host would consent to admitting the police who came in and saw the visitor’s suitcase and seized it. The police got a search warrant for the seized suitcase on probable cause. United States v. Cruz, 2012 U.S. App. LEXIS 4986 (3d Cir. March 9, 2012) (unpublished).*

The officer’s seeing defendant cross the center line was credited as the basis for the OVI stop, and the fact the video didn’t catch it didn’t make the stop unreasonable. State v. Lemaster, 2012 Ohio 971, 2012 Ohio App. LEXIS 846 (4th Dist. March 2, 2012).*

An anonymous caller could be credited in a call about flight from a robbery where the facts of the call were corroborated by license number matching a vehicle with the same description of the getaway car and the excited nature of the event. In addition, “the anonymous call here may be comparable to an excited utterance. If a person wants to harass an enemy by providing false information to the police that would trigger an investigative stop, the person is unlikely to wait until the caller has just seen someone flee a crime scene.” Commonwealth v. Anderson, 461 Mass. 616, 963 N.E.2d 704 (2012).

Standing with a group of other young man in a high crime area, having no gang colors, walking away when the officers approached, and being out of breath when the officer stopped him was not reasonable suspicion. In Interest of J. B., 314 Ga. App. 678725 S.E.2d 810 (2012).*

Plaintiffs’ strip search claim on arrest without booking permitted on motion to amend; it was not futile. Sorrell v. Inc. Vill. of Lynbrook, 2012 U.S. Dist. LEXIS 77303 (E.D. N.Y. June 4, 2012).*

There was probable cause for defendant’s arrest for murder for hire by payment of a snowmobile. State v. Santiago, 305 Conn. 101 (2012).*

In litigation over a 1991 search warrant in 2012, the seizure under the search warrant was somewhat excessive, but it was not reason to suppress the whole search under Andersen. United States v. Persico, 2012 U.S. Dist. LEXIS 77298 (E.D. N.Y. June 1, 2012).*

Defendant was the suspect in a string of burglaries and thefts to support a drug habit, and the police went where he was staying to get consent. A guest’s backpack and shopping bag in a house could not be the subject of consent by the host. Commonwealth v. Magri, 462 Mass. 360, 968 N.E.2d 876 (2012):

Thus, the crucial question is whether the defendant had a reasonable expectation of privacy in his bags that were in Barnes’s bedroom. It is well settled that an overnight guest maintains an expectation of privacy in luggage stored in a host’s dwelling. See, e.g., United States v. Davis, 332 F.3d 1163, 1167-1168 (9th Cir. 2003); United States v. Salinas-Cano, 959 F.2d 861, 864-865 (10th Cir. 1992); United States v. Wilson, 536 F.2d 883, 884-885 (9th Cir.), cert. denied, 429 U.S. 982 (1976). See also 4 W.R. LaFave, Search and Seizure § 8.5(d), at 231-232 & n.104 (4th ed. 2004) (“Among the articles which it would seem would most commonly be deserving of the ‘high expectation of privacy’ label in the host-guest context would be the overnight bag or suitcase or similar object brought to the premises by the guest”).

Although the bags in this case were not traditional luggage, there is no reasoned basis to draw a legal distinction between a guest’s containers based on the materials from which they are made, their shape, or the mechanism by which they are closed. Cf. Commonwealth v. Linton, 456 Mass. 534, 557 (2010) (defendant held expectation of privacy in backpack he brought to his brother’s house for extended visit). The Commonwealth makes no claim that the bags were not closed. We conclude that the defendant maintained a reasonable expectation of privacy in both his backpack and the shopping bag.

Defendant’s companion did not have the authority to consent to a search of his van after he gave her the keys for the limited purpose of checking on the dog and locking the van. State v. Kurokawa-Lasciak, 249 Ore. App. 435, 278 P.3d 38 (2012), on remand from State v. Kurokawa-Lasciak, 351 Ore. 179, 263 P.3d 336 (2011):

Under these precepts, the consent issue in this case reduces to the question of whether defendant and Campbell had an understanding that Campbell had common access to and control of the van when she gave Bennett consent to search it. The trial court, relying on a federal case under the Fourth Amendment (United States v. Morales, 861 F2d 396 (3rd Cir 1988)), ruled that Campbell had authority to consent (although, as noted, the court also ruled that that consent was superseded by defendant’s refusal). We do not find Morales helpful. The only issue in that case was whether a person who is the driver, but not the lessee, of a rental car, can consent to a search of the entire car, and the court based its decision on the fact that Morales, as the nonlessee driver, had immediate possession of and control over the car: “By giving Morales control over the car, [the actual lessee] conferred on Morales power to consent to a reasonable search of it.” Id. at 399. No such delegation of control exists on the facts of this case. The only evidence that Campbell had control of defendant’s van was the fact that he had given her the key. However, as we have previously held, mere possession of the key to premises does not necessarily indicate complete access or control. Fuller, 158 Ore. App at 506 (consenting co-occupant had key, but nonetheless lacked authority to consent to search of nightstand).

[Note: No cases on the Oregon court’s website since February.]

Defendant’s stop was justified for reasonable suspicion, and that is all the standard is; not proof beyond a reasonable doubt. United States v. Turrentine, 2012 U.S. Dist. LEXIS 28511 (W.D. Okla. March 5, 2012)*:

While the defendant’s evidence might well be sufficient to raise a reasonable doubt as to whether defendant committed the traffic violation, that is not the standard here. For present purposes, the question is whether the government has established by a preponderance of the evidence that the violation occurred, hence justifying the trooper’s action. The court concludes it has. Trooper Painter testified that he observed the violation and the court found his testimony to be generally credible. Defendant’s suggestion that the trooper’s smile shown on the video is inconsistent with observing a traffic violation is speculative and ultimately unpersuasive.

Changing information from the CI served to enhance his credibility. The CI was believable and supported the stop, as did only the information that the police knew. United States v. Pete, 463 Fed. Appx. 113 (3d Cir. 2012) (unpublished).*

LinkedIn did not violate the Stored Communications Act in disclosing search histories to third parties. Low v. LinkedIn Corp., 2012 U.S. Dist. LEXIS 97012 (N.D. Cal. July 12, 2012) [Note: Numerous websites, including those of the law firms involved, are following this case, but none has this order as of the time of this posting, so I apologize for the long quote. If I could link it instead, I would have]:

1. Stored Communications Act

Plaintiffs’ first cause of action alleges that LinkedIn violated the federal Stored Communications Act, 18 U.S.C. § 2701, et seq. (“SCA”). See AC ¶¶ 65-78. Enacted in 1986 as Section II of the Electronic Communications Protection Act (“ECPA”), the SCA creates criminal and civil liability for certain unauthorized access to stored communications and records. See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002). “The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address.” Quon v. Arch Wireless Operating Company, Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev’d on other grounds by City of Ontario v. Quon, 130 S.Ct. 2619 (2010). Despite this purpose, the SCA has a narrow scope: “[t]he SCA is not a catch-all statute designed to protect the privacy of stored Internet communications;” instead “there are many problems of Internet privacy that the SCA does not address.” Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1214 (2004). Generally, the SCA prohibits providers from (1) “knowingly divulg[ing] to any person or entity the contents of a communication.” 18 U.S.C § 2702(a)(1)-(2); see id. § 2707 (creating a private right of action); see also Quon, 529 F.3d at 900 (“[T]he SCA prevents ‘providers’ of communication services from divulging private communications to certain entities and/or individuals.”).

The SCA covers two types of entities: (1) “remote computing services” (“RCS”), and (2) “electronic communication services” (“ECS”). 18 U.S.C § 2702(a)(1)-(2). The non-disclosure obligations depend on the type of provider at issue. See, e.g. Quon, 529 F.3d at 900-902. Plaintiffs contend in their opposition that LinkedIn is an RCS for the purposes of its SCA liability. See Opp’n at 14-15. The SCA prohibits an entity “providing remote computing service to the public” from “knowingly divulge[ing] to any person or entity the contents of any communication which is carried or maintained on that service.” 18 U.S.C § 2702(a)(2).

The SCA only creates liability for a provider that is an RCS or an ECS. A provider of email services is an ECS. Quon, 529 F.3d at 901. On the other hand, under the SCA the term “remote computing service” means “the provision to the public of computer storage or processing services by means of an electronic communications system.” 18 U.S.C § 2711(2) (emphasis added). A “remote computing service” refers to “the processing or storage of data by an offsite third party.” Quon, 529 F.3d at 901. In defining RCS, “Congress appeared to view ‘storage’ as a virtual filing cabinet.” Id. at 902. Indeed, the Ninth Circuit has explained that “[i]n light of the Report’s elaboration upon what Congress intended by the term ‘Remote Computer Services,’ it is clear that, before the advent of advanced computer processing programs such as Microsoft Excel, businesses had to farm out sophisticated processing to a service that would process the information.” Id. at 902 citing Kerr, 72 GEO. WASH. L. REV. at 1213-14.

Whether an entity is acting as an RCS or an ECS (or neither) is context dependent, and depends, in part, on the information disclosed. See In re U.S., 665 F. Supp. 2d 1210, 1214 (D. Or. 2009) (“Today, most ISPs provide both ECS and RCS; thus, the distinction serves to define the service that is being provided at a particular time (or as to a particular piece of electronic communication at a particular time), rather than to define the service provider itself. The distinction is still essential, however, because different services have different protections.”); Kerr, 72 GEO. WASH. L. REV. at 15-16 (“The classifications of ECS and RCS are context sensitive: the key is the provider’s role with respect to a particular copy of a particular communication, rather than the provider’s status in the abstract. A provider can act as an RCS with respect to some communications, an ECS with respect to other communications, and neither an RCS nor an ECS with respect to other communications.”).

Although many allegations within the Amended Complaint relate to information that third parties would be able to infer, the Amended Complaint limits the information LinkedIn allegedly disclosed to third parties. The Amended Complaint alleges that LinkedIn transmits to third parties the LinkedIn user ID and the URL of the LinkedIn profile page viewed by the internet user. See AC ¶¶ 28, 66-68. Even taking Plaintiffs’ allegations as true, it does not appear that LinkedIn was functioning as an RCS when it disclosed the LinkedIn user ID and the URL of the profile pages the user had viewed to third parties. LinkedIn was not acting as a “remote computing service” with respect to the disclosed information because it was not “processing or stor[ing] [] data by an offsite third party [in this case LinkedIn].” Quon, 529 F.3d at 901. LinkedIn IDs are numbers generated by LinkedIn and were not sent by the user for offsite storage or processing. See 18 U.S.C. § 2702(a)(2)(A). LinkedIn was not acting “as a virtual filing cabinet,” or as an offsite processor of data with respect to the user IDs it created. Similarly, the URL addresses of viewed pages were not sent to LinkedIn by Plaintiffs for storage or processing. See 18 U.S.C. § 2702(a)(2)(A)-(B). LinkedIn was not functioning as either a “filing cabinet” or “an advanced computer processing program such as Microsoft Excel,” that allows businesses to “farm out sophisticated processing to a service that would process the information,” with respect to the LinkedIn user IDs or the URLs of users’ profile pages. Quon, 529 F.3d at 902.

At least one commentator has seriously doubted the conclusion that a website, such as LinkedIn, provides “processing services” for its customers, qualifying it as an RCS. Kerr, 72 GEO. WASH. L. REV. at 1229-31. This view is supported by the legislative history of the SCA. Congress established liability for “remote computing services to include services that store and process information. S. Rep. No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557 (“[C]omputers are used extensively today for the storage and processing of information. With the advent of computerized recordkeeping systems, Americans have lost the ability to lock away a great deal of personal and business information. For example, physicians and hospitals maintain medical files in offsite data banks, businesses of all sizes transmit their records to remote computers to obtain sophisticated data processing services.”). Therefore, the Court finds that Plaintiffs have not stated a claim for relief pursuant to the SCA because Plaintiffs have not established that LinkedIn was acting as an RCS when it disclosed LinkedIn IDs and URLs of viewed pages to third parties. Therefore, Defendants’ motion to dismiss the SCA claim is GRANTED.

Plaintiff Low also alleged a violation of the SCA in the original complaint. Compl. ¶¶ 41-53. Plaintiff’s original complaint did not articulate a coherent theory regarding its SCA claim. Specifically, the original complaint’s SCA claim failed to identify what information was transmitted to third parties. Plaintiffs’ Amended Complaint now identifies what information was transmitted to third parties and how, theoretically, a LinkedIn user’s information can be de-anonymized. However, the additional factual allegations in the Amended Complaint establish that Plaintiffs’ SCA claim fails to establish a cause of action. This defect is based on a failure of theory and not on a failure of pleading. Additional factual allegations are unlikely to establish that Defendant was an RCS in light of the legislative history of the SCA. Because further amendment would be futile, Defendant’s motion to dismiss the SCA claim is granted with prejudice.

Update Sunday: Still nothing posted elsewhere.

Motion for return of property where the government needs it as evidence will be denied. United States v. Donahue, 2012 U.S. Dist. LEXIS 96613 (M.D. Pa. July 12, 2012):

Here, Donahue has not met his burden to prove why he is entitled to the property. As his criminal prosecution is pending, Donahue has the burden to establish that he is entitled to the property. And, while Donahue argues that the property is not contraband, the Government has asserted that the property seized will be used as evidence in this case. As such, the Government’s ongoing need for the property as evidence in this case warrants the denial of Donahue’s motion. See, e.g., United States v. Stanton, No. 10-800, 2012 WL 2159355, at *6 (E.D. Pa. June 14, 2012).

Plaintiff’s complaint that he was strip searched to his underwear by a female teacher survives summary judgment because there is no qualified immunity. Hotchkiss v. Garbo, 2012 U.S. Dist. LEXIS 96762 (E.D. Mich. July 12, 2012).

A CPS entry of a home to take a child subject to alleged abuse where it was alleged that they reasonably should have known the complaint was unfounded stated a claim under the Fourth Amendment. Ross v. Cecil County Dep’t of Soc. Servs., 2012 U.S. Dist. LEXIS 97014 (D. Md. July 11, 2012).*

Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, Stanford Law Review (forthcoming), linked in the Cioffi post. The SSRN Abstract:

This article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.

New law review article: Making the Most of Jones v. United States in a Surveillance Society: A Statutory Implementation of Mosaic Theory by Christopher Slobogin, Vanderbilt Law School forthcoming in Duke Journal of Constitutional Law & Public Policy. Abstract:

In the Supreme Court’s recent decision in Jones v. United States a majority of the justices appeared to recognize that under some circumstances aggregation of information about an individual through government surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion — sometimes called “mosaic theory” — could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements — the issue raised in Jones — but also with respect to the government’s increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This solicited article provides, in the guise of a model statute, a means of doing so. More specifically, this article explains how proportionality reasoning and political process theory can provide concrete guidance for the courts and police in connection with physical and data surveillance.

Prior findings that an officer was unbelievable on the stand were not binding in this case. United States v. Lopez-Urquiza, 2012 U.S. Dist. LEXIS 95970 (E.D. Tenn. May 15, 2012):

The undersigned is certainly in no position to second guess another court in another case, even if it involves the same witness in the case currently before the undersigned. Neither, however, is the undersigned bound by the other court’s evaluation of that witness. See United States v. Atkins, 1999 WL 1045942 *3 (6th Cir. Nov. 8, 1998) (the district court did not err in refusing to admit past judicial decisions of an officer’s untruthfulness.).

One of the benefits of Lexis and Westlaw is running the names of the law enforcement officers involved to see what happened elsewhere. Every once in a while the officer was not believed and it ends up in an opinion.

NYTimes.com: That’s No Phone. That’s My Tracker by Peter Maass and Megha Rajagopalan:

THE device in your purse or jeans that you think is a cellphone — guess again. It is a tracking device that happens to make calls. Let’s stop calling them phones. They are trackers.

NYTimes.com: Philadelphia Defends Policy on Frisking, With Limits by Erica Goode:

PHILADELPHIA — Mayor Michael R. Bloomberg of New York was dismissive when asked if his police department, under siege for the way it uses the stop-and-frisk tactic, might take a lesson from Philadelphia’s response to a similar challenge.

Popular Science: FYI: How Can I Protect My Cell Phone Data Records From Law Enforcement Subpoenas? Our wireless carriers hand over data from millions of users per year. How can we protect ourselves? by Dan Nosowitz:

When it came to light that law enforcement has issued millions of annual requests/demands to the wireless carriers (AT&T, Verizon, etc) to hand over user data, we all got a little concerned. Our carriers know everything about us, and according to findings by Rep. Markey (D-MA), “Information shared with law enforcement includes data such as geolocation information, content of text messages, wiretaps, among others.”

But! We have weapons. Here are some tricks to help protect your privacy.

Defendant was seen leaving a stash house with a box, and he was followed from a distance where he went to a liquor store and then somewhere else. He was stopped but the stop was without probable cause. There was no showing that he had drugs when he left the stash house and his driving was not indicative of “counter-surveillance.” Officer’s alleged expertise that it was a stash house was a mere unsupported conclusion. United States v. Cervantes, 678 F.3d 798 (9th Cir. 2012):

The government asks us to place heavy reliance on Hankel’s conclusory statement that, based on Hankel’s training and experience, the white box in Cervantes’s possession came from a “suspected narcotics stash house.” But in the absence of any underlying facts as to why Hankel suspected the house was a “stash house,” this statement is entitled to little, if any, weight in the probable cause analysis.

“One of the themes which runs through the decisions on the Fourth Amendment probable cause requirement is that when the ultimate probable cause determination is made, whether by a magistrate when a warrant is sought or upon a motion to suppress evidence obtained without a warrant, mere conclusions will not suffice.” 2 Wayne Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(e), at 297 (4th ed. 2004). See, e.g., Illinois v. Gates, 462 U.S. at 239 (noting that “wholly conclusory” statements of officers are insufficient to establish probable cause); United States v. Ventresca, 380 U.S. 102, 108-09 (1965) (noting that “purely conclusory” statements of officers, without detailing any of the underlying circumstances, will be insufficient to establish probable cause); Nathanson v. United States, 290 U.S. 41, 47 (1933) (noting that an officer’s “mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances” is insufficient to establish probable cause).

In United States v. Thomas, we noted that a conclusory allegation by law-enforcement that a particular house was a suspected narcotics stash house, was entitled to little (if any) weight in determining whether officers had satisfied the lower reasonable suspicion standard required to stop a vehicle leaving the house. 211 F.3d 1186, 1189-90 (9th Cir. 2000). We explained that the conclusory allegation, without any foundational facts, was akin to an anonymous tip and, consequently, was entitled to little weight. Id. at 1190.

Here, as in Thomas, Hankel’s statements amount to nothing more than conclusory assertions. Hankel failed to provide any underlying facts as to why he, or any other officers, suspected the house was a “narcotics stash location.” While Hankel’s training and experience are factors to be considered, “it is incumbent upon the arresting or searching officer to explain the nature of his expertise or experience and how it bears upon the facts which prompted the officer to arrest or search.” 2 Wayne Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 3.2(c), at 45 (4th ed. 2004) (internal quotation marks omitted). Conclusory statements and a general claim of expertise will not suffice. Id.; Thomas, 211 F.3d at 1189-92.

In a case under submission 26 months, the Second Circuit concludes that a child protective services who obtained a family court order for entry into a house was governed by the Fourth Amendment. The application for the warrant was based on erroneous information that a jury could conclude was knowingly made, thereby denying the state official qualified immunity. Southerland v. City of New York, 652 F.3d 209 (2d Cir. 2011), as Amended 681 F.3d 122 (2d Cir. 2012).

Defense counsel’s belief that a motion to suppress was futile on the merits but only potentially useful for cross-examination if the case went to trial did not make defense counsel ineffective when defendant pled without the motion having been filed. Luke v. United States, 2011 U.S. Dist. LEXIS 62192 (E.D. Mo. June 10, 2011).*

Defendant’s flight from vehicle on a public road leaving the door open was an abandonment. United States v. Young, 2011 U.S. Dist. LEXIS 62259 (D. Minn. May 23, 2011).