Two 911 calls of men on a roof with a rifle and a case of beer¹ justified a protective sweep. One plaintiff’s excessive force claim was a result of his refusing to submit. Vernon v. Santa Barbara, 2012 U.S. App. LEXIS 13689 (9th Cir. July 5, 2012).*

When evaluating the officers’ objective reasonableness in exerting force, we consider “(1) the severity of the crime at issue; (2) whether [Vernon] posed an immediate threat to the safety of the officers or others; and (3) whether [Vernon] actively resisted arrest.” Gregory v. Cnty. of Maui, 523 F.3d 1103, 1106 (9th Cir. 2008).

The amount of force exercised by Officers Ruiz and Van Eyck to detain and handcuff Vernon was objectively reasonable. As indicated above, the officers had reason to believe that at least one occupant of the house posed an immediate threat to their safety and that a certain amount of force was necessary to confront him. In addition, Vernon’s refusal to comply with Officer Ruiz’s repeated, verbal requests and his physical resistance to handcuffing increased the perceived danger of the situation the officers confronted while in his unsecured bedroom. See id. at 1106-07. The contusions and abrasions that Vernon alleged as injuries were only occasioned by his refusal to accept reasonable directions, which were clearly intended for his safety and that of others. See Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1096-98 (9th Cir. 2006); Forrester v. City of San Diego, 25 F.3d 804, 806-07 (9th Cir. 1994).

_______

1. Cue the banjos.

Plaintiff was a Puerto Rico gun dealer who lost its license due to missing firearms, and an administrative search by the PRPD was within the Burger highly regulated business exception. B&B Target Ctr. v. Figueroa-Sancha, 2012 U.S. Dist. LEXIS 92208 (D. P.R. July 3, 2012).

Seizure of stuff possibly outside the search warrant in a child exploitation case was not unreasonable when it was immediately apparent that the items seized could have been used for grooming child victims. United States v. Young, 2012 U.S. Dist. LEXIS 92048 (D. Neb. July 3, 2012), R&R 2012 U.S. Dist. LEXIS 83198 (D. Neb. June 15, 2012).*

Defendant who fled from a frisk “for officer safety” when confronted by three officers after a traffic stop could not complain of a frisk that never occurred. United States v. Grinage, 2012 U.S. Dist. LEXIS 92959 (W.D. Pa. July 5, 2012).*

Matching the description of a bank robber just given by the tellers, wrapped and loose cash sticking out of pockets, and GPS transmitter located in the money locating him was reasonable suspicion. United States v. Johnson, 2012 U.S. Dist. LEXIS 83417 (D. Minn. May 23, 2012).* [Come on. If that’s not, what is? In fact, this looks like probable cause to me.]

Defense counsel was not ineffective for conceding defendant had no standing in the house of another that he was briefly at before the search. There was nothing that supported his standing as a guest. State v. Brown, 2012 Ohio 2672, 2012 Ohio App. LEXIS 2355 (5th Dist. June 13, 2012).*

The warrant in a child pornography case sought “Written documents in communications with [E14] or describing the relationship with [E14], Computers and any other electronic devices used in the transmission of communication and solicitation of [E14], any electronic storage devices that may be used to store communications, ….” Seizure of a computer, camera, CDs, DVDs, and storage media were permitted, but male enhancement lotion was not. United States v. Young, 2012 U.S. Dist. LEXIS 83198 (D. Neb. June 15, 2012),* adopted in substantial part 2012 U.S. Dist. LEXIS 92048 (D. Neb. July 3, 2012).*

“Any and all material evidence of a crime” in a search warrant is not per se overly broad. United States v. Lipscomb, 2012 U.S. Dist. LEXIS 91494 (N.D. W.Va. July 3, 2012):

The Court finds that the sentence “Any and all material evidence of a crime” by itself is overly broad and could be seen as authorizing a general exploratory rummaging in a person’s belongings.” The Court also finds, however, that the inclusion of that one sentence does not invalidate the entire search warrant. In fact, Defendants do not point to any materials that were seized that would not be covered by the particular terms of the search warrant, with the exception of the methamphetamine instruction sheet, which shall be discussed later. See United States v. Washington, 852 F.2d 803 (4th Cir. 1088) (upholding a warrant which authorized a search for “heroin, a quantity of drug paraphernalia, papers, notes, bank records, identification documents and other items of evidence….”), and United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999)(upholding a warrant that was claimed overbroad, noting, expressly, the fact that the items actually seized were all related to the crime at issue.) Tpr. Kessel testified all the items on the property receipt were related to the manufacture of methamphetamine, and a review of the Property receipt indicates to the Court that his testimony regarding this was correct.

The defendant argued that the government witnesses weren’t believable on the question of the reason for the stop, but they were. The government argued that if the stop was invalid the exclusionary rule should not apply. The court wasn’t buying it. More important to this case is the court’s rejection of the government’s argument in a two page long footnote that Herring would protect the search. It wouldn’t. United States v. Barclay, 2011 U.S. Dist. LEXIS 45285 n. 5 (E.D. Mich. March 21, 2011):

Relying on Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), and United States v. Master, 614 F.3d 236 (6th Cir. 2010), the Government argues that even if there was a Fourth Amendment violation in this case suppression is not an appropriate remedy. If the Court accepts my recommendation, the Court need not reach this issue. However, if the Court concludes that the officers did not have reasonable suspicion to stop the van, the Court should reject the government’s argument and conclude that suppression is the appropriate remedy. In Herring, the Court considered whether the exclusionary rule applies where an “officer reasonably believes there is an outstanding arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by another police employee.” Herring, 129 S. Ct. at 698. Analogizing to its decisions in United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (exclusionary rule inapplicable where police rely in objectively reasonable reliance on a warrant issued by a neutral magistrate) and Arizona v. Evans, 514 U.S. 1, 14-15, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995) (exclusionary rule inapplicable where police acted in reasonable reliance on a court database which mistakenly indicated that a warrant was outstanding), the Herring Court concluded that any deterrent effect of applying the exclusionary rule in that case was outweighed by its costs to society. Herring, 129 S. Ct. at 700-04. In Master, which also involved a defective warrant, the Sixth Circuit read Herring as “effectively creat[ing] a balancing test by requiring that in order for a court to suppress evidence following the finding of a Fourth Amendment violation, ‘the benefits of deterrence must outweigh the costs.’” Master, 614 F.3d at 243 (Herring, 129 S. Ct. at 700). In the Sixth Circuit’s view, “the Herring Court’s emphasis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized, than toward excluding evidence in order to deter police misconduct unless the officers engage in ‘deliberate, reckless, or grossly negligent conduct.’” Id. (quoting Herring, 129 S. Ct. at 702).

Based on Master the Government argues that evidence should never be excluded “unless the officers engage in ‘deliberate, reckless, or grossly negligent conduct.’” Id. (quoting Herring, 129 S. Ct. at 702). Because the officers’ conduct here was not deliberate, reckless, or grossly negligent, the Government argues, the evidence obtained as a result of the stop should not be suppressed. The Government’s argument, however stretches Herring and Master far beyond the bounds of those cases. Both Herring and Master involved what appeared to be facially valid warrants which, it later turned out, were defective and the officers’ reasonable reliance on those warrants. Those cases, in other words, were merely applications of the Leon good faith exception to the exclusionary rule. The Leon rule has been applied in four circumstances, when officers: (1) reasonably and in good faith rely on a warrant subsequently declared invalid, see Leon, 468 U.S. at 922; (2) perform a warrantless search in reliance upon a statute later declared unconstitutional, see Illinois v. Krull, 480 U.S. 340, 349-53, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); (3) act in good faith reliance upon mistaken information indicating the existence of an outstanding warrant, see Herring, 129 S. Ct. at 702-04; Evans, 514 U.S. at 14-16; and (4) act in reliance on existing caselaw which justifies the search but which is later overturned, see United States v. Buford, 632 F.3d 264, 276 (6th Cir. 2011); United States v. McCane, 573 F.3d 1037, 1044-45 (10th Cir. 2009). See generally, McCane, 573 F.3d at 1042-44; United States v. Peoples, 668 F. Supp. 2d 1042, 1048 (W.D. Mich. 2009).

On the other hand, the courts have concluded that the good faith exception is generally inapplicable to warrantless searches besides those types of warrantless searches identified in Krull and Evans. See United States v. Herrera, 444 F.3d 1238, 1251 (10th Cir. 2006); United States v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989); United States v. Winsor, 846 F.2d 1569, 1579 (9th Cir. 1988) (en banc); United States v. Morgan, 743 F.2d 1158, 1165 (6th Cir. 1984). And I have been unable to locate a single case, either federal or state, applying the good faith exception to an officer’s own mistaken conclusion that the facts known to the officer sufficed to establish reasonable suspicion or probable cause. Cf. United States v. Lopez-Soto, 205 F.3d 1101, (9th Cir. 2000) (“[T]here is no good faith exception to the exclusionary rule for police who do not act in accordance with governing law. To create an exception here would defeat the purpose of the exclusionary rule, for it would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey.”). Indeed, such a conclusion would be nonsensical. Under Terry, the question is whether the officer had an objectively reasonable suspicion that a crime was occurring or was about to occur. Under Leon, the question is whether an objectively reasonable officer would have known that the search or seizure was illegal. However, no objectively reasonable officer could believe a search to be valid where there is no objectively reasonable suspicion. Thus, Leon simply takes one back to the Terry inquiry-that is, whether there was objectively reasonable suspicion. And nothing in Herring or Master, both of which involved traditional Leon-type circumstances, purports to change this understanding of Leon.

Instructive is the decision in United States v. Stokely, 733 F. Supp. 2d 868 (E.D. Tenn. 2010). In that case, the court found that the officer’s original decision to detain the defendant, which subsequently led to the defendant’s consent to search his home, was not supported by reasonable suspicion. There, as here, the Government nevertheless argued that exclusion was improper under Herring because the officer “detained Mr. Stokely based upon a good-faith belief in the existence of reasonable suspicion to detain him[.]” Id. at 905. The court rejected this argument for similar reasons to those discussed above, explaining:

In the present case, Detective Gibson’s decision to detain Mr. Stokely and to place him in handcuffs was based upon her own erroneous assessment that either she or the officers directing her to detain Mr. Stokely had a valid basis to do so. As discussed at length above, that determination was woefully incorrect. Unlike the officers in Herring who relied upon the representation of other law enforcement personnel that an arrest warrant was outstanding or the officers executing the search warrant in Leon who relied upon the judge’s determination that probable cause to issue a search warrant existed, Detective Gibson made the decision to detain Mr. Stokely at the scene based upon her and her fellow officers’ assessment that such detention was necessary and legal. Thus, the Fourth Amendment violation in this case resulted from the deliberate action of law enforcement and is of a type that could be deterred by exclusion of the evidence.

Id. at 906. And, in other contexts, the courts (including the Sixth Circuit) have rejected the Government’s arguments that Herring fundamentally alters the way in which courts are to apply the exclusionary rule or the good faith exception. See United States v. Lazar, 604 F.3d 230, 237-38 & n.6 (6th Cir. 2010) (with respect to facially deficient warrant, which is generally outside the good faith exception, rejecting the Government’s argument that Herring “greatly expanded” the good faith exception and “changed the applicable standard,” and concluding that “Herring does not purport to alter that aspect of the exclusionary rule which applies to warrants that are facially deficient warrants ab initio.”); United States v. Martinez, 686 F. Supp. 2d 1161, 1204-05 (D.N.M. 2009) (with respect to rule that good faith exception does not apply to warrants supported by illegally obtained evidence, “[t]he Court does not believe that the Supreme Court’s decision in Herring v. United States changes this analysis. … The Court is not convinced that Herring v. United States stands for the proposition that, any time an officer in the field negligently violates someone’s constitutional rights, exclusion of the evidence is not justified.”). Accordingly, if the Court concludes that the officers lacked reasonable suspicion to stop the van, the Court should conclude that the evidence is subject to suppression notwithstanding Herring and Master.

An elementary school teacher who showed up at work with the smell of alcohol about her person was reasonable suspicion not probable cause. Under the reasonableness special needs standard, a Breathalyzer test was reasonable because elementary school teachers have a reduced expectation of privacy at work. Donegan v. Livingston, 2012 U.S. Dist. LEXIS 91884 (M.D. Pa. July 3, 2012):

Administration of a Breathalyzer test to an elementary school employee passes this reasonableness test. The Supreme Court has specifically recognized the school environment as one which “presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.” Skinner, 489 U.S. at 620 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987)). Moreover, an analysis of the above factors demonstrates that an elementary school employee in Donegan’s position could be properly subjected to a Breathalyzer test.

Like the corrections officer in Majewski, Donegan’s profession subjected her to a reduced expectation of privacy in her sobriety while at work. Similar to railroad workers, teachers’ privacy to ingest substances at work is “diminished by reasons of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees.” Skinner, 489 U.S. at 627; see also Knox County Educ. Ass’n v. Knox County Bd. of Educ., 158 F.3d 361, 384 (6th Cir. 1998) (noting that teachers play a unique role in their influence and access to children and “should not be surprised if their own use of drugs is subject to regulation and testing and, as such, their expectation of privacy, at least with respect to drugs and drug usage, might be diminished.”); but see Am. Fed’n of Teachers-W. Virginia, AFL-CIO v. Kanawha County Bd. of Educ., 592 F. Supp. 2d 883, 904 (S.D.W. Va. 2009) (declining to find teacher positions as safety sensitive on the record before that court). As teachers inhabit a highly regulated environment which is particularly sensitive to alcohol and drug abuse, I find that teachers have a reduced expectation of privacy in the use of such substances while at work.

Officers lack objective evidence that this 14 year old defendant had a weapon when he stopped to remove something from his waistband and put it in his backpack. Matter of Jaquan M., 2012 NY Slip Op 05334 (1st Dept. July 3, 2012)* (3-2):

Reasonable suspicion could not be formed in this case based strictly on the officers’ observation of appellant removing an object from his waistband, because they conceded that the object bore no obvious hallmarks of a weapon. Further, there were no other objective indicia of criminality because there were plausible, non-criminal reasons for appellant’s behavior. For example, the fact that the backpack sagged at the bottom could have been the result of any number of things which it would have been legal for appellant to possess. Nor did appellant’s actions in pacing back and forth and peering up and down the street and sidewalk, and then kneeling down to transfer something into the backpack exclude the reasonable possibility that he was engaged in innocent behavior. The fact that appellant was in a high-crime area and on his way to another high-crime area does not, without more, constitute a factor sufficient to create reasonable suspicion (Powell, 246 AD2d at 369-370). Nor do we believe that all of these factors, taken together, reasonably lead to the conclusion that appellant was in the process of committing a crime.

Even if the seizure of appellant was legal, we find that appellant’s denials that there was anything inside the bag did not justify an increase in the level of suspicion such that the police properly searched his bag. In the cases on which the presentment agency and the dissent rely in arguing that similar lies can create probable cause, People v Febus (11 AD3d 554 [2004] lv dismissed 7 NY3d 743 [2004]) and People v Scott-Heron, 11 AD3d 364 [2004], lv denied 4 NY2d 804 [2004]), the police had already developed strong reason to believe that the defendants had secreted drugs, and the defendants’ denials were found to have buttressed that belief. Here, as discussed above, the police had no basis to believe that there was a gun in appellant’s backpack, other than their hunch. Appellant’s denials were insufficient, on their own, to create probable cause.

Defendant consented to the taking of his DNA in a sex investigation, and CODIS matched him to a robbery. The consent was voluntary. State v. Oberding, 2012 Ohio 3047, 2012 Ohio App. LEXIS 2650 (12th Dist. July 2, 2012):

[*P17] Based on the totality of the circumstances, Oberding gave his consent voluntarily, as his consent was not the result of duress or coercion. Oberding was told that his DNA sample would be tested and used by the crime laboratory, and the sample was in fact tested and used by the crime laboratory. The fact that Oberding’s sample matched that of the John Doe sample from the bakery robbery did not render his consent involuntary.

. . .

[*P20] While other Ohio courts have not analyzed this issue at length, courts outside this state have determined that once a suspect’s DNA sample is obtained lawfully by police, that sample can be used for other purposes separate from an investigation of the crime for which the sample was first procured.

Andy Griffith Vs. the Partiot Act

“Any and all material evidence of a crime” by itself is overly broad, but the defendant has to show that something was seized under that provision to challenge that seizure. United States v. Lipscomb, 2012 U.S. Dist. LEXIS 91494 (N.D. W.Va. July 3, 2012):

The Court finds that the sentence “Any and all material evidence of a crime” by itself is overly broad and could be seen as authorizing a general exploratory rummaging in a person’s belongings.” The Court also finds, however, that the inclusion of that one sentence does not invalidate the entire search warrant. In fact, Defendants do not point to any materials that were seized that would not be covered by the particular terms of the search warrant, with the exception of the methamphetamine instruction sheet, which shall be discussed later. …

When defendant was stopped at a bus station and asked for his ID, that was a stop that no person would feel free to ignore, and it went downhill from there. His consent was not freely given. United States v. Otero-Figueroa, 2012 U.S. Dist. LEXIS 91169 (W.D. Mo. June 19, 2012).*

Cato.com: Fourth Amendment Gone to the Dogs—and to Lasers?! by Jim Harper:

For all their use by law enforcement across the country, drug-sniffing dogs haven’t gotten a lot of consideration in the Supreme Court. In a pair of cases next fall, though, the Court seems likely to give them some attention. Florida v. Harris is one of the cases it has taken. Harris will examine “[w]hether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.”

This week, we filed an amicus brief in the other drug-sniffing dog case, coming out of the same state. Florida v. Jardines asks whether the Fourth Amendment would be implicated if the government brought a drug-sniffing dog to the front door of your home seeking the scent of illegality.

What the Court has done with drug-sniffing dogs so far is not very good. …

—Semmes Luckett Jr.

Officers did a knock-and-talk with reasonable suspicion of a place with known felons and then smelled drugs. Noises came from inside that were apparently inconsistent with somebody just coming to the door [“The officers knocked on the door, whereupon they heard ‘scurrying and shuffling’ within the residence, which caused the officers concern.”], and that justified their entry. United States v. Moore, 2012 U.S. Dist. LEXIS 90579 (E.D. Okla. May 17, 2012)* [I can’t believe that’s all it takes, and it never says that the officers identified themselves.]:

Certainly, in this case, law enforcement had a reasonable suspicion of criminal activity at the time of the “knock and talk” encounter. Based upon the heightened traffic at the residence, the known prior criminal activity at the residence, the presence of Defendant Moore at the residence — a known felon who had previously engaged in a drug selling enterprise, officers were justified in inquiring at the residence through the “knock and talk” procedure. Upon hearing the activity within the residence upon announcing their presence and the smell of illegal drugs once the door was opened and the presence of known or suspected felons on the premises, officers were justified in entering the residence to secure evidence and for their own safety. Officers did not seize any observed contraband until signed consents were obtained from the residents.

WSJ.com: DA Gets to See Occupy Tweets by Pervaiz Shallwani:

Twitter Inc. must turn over messages posted by an Occupy Wall Street protester, a Manhattan judge ruled on Monday, another move toward giving law-enforcement agencies broad access to comments made on social media.

Monday’s order was the second time Manhattan Criminal Court Judge Matthew Sciarrino Jr. has ruled that law-enforcement agencies can subpoena messages posted on Twitter.

Twitter is the most protective of any Internet service of customer privacy.

In a Title VII case, plaintiff claimed the defendant school district violated her Fourth Amendment rights by looking at e-mails on the school district’s computers. It wasn’t her computer and she signed off on a technology policy that she didn’t own anything on the computer system. Dombrowski v. Governor Mifflin Sch. Dist., 2012 U.S. Dist. LEXIS 90674 (E.D. Pa. June 29, 2012):

Plaintiff claims that GMSD violated her right to privacy when (1) it ordered an outside forensic investigator to search Plaintiff’s work computer (which Plaintiff had turned over when she was suspended); (2) the forensic investigator produced Plaintiff’s personal e-mails (including e-mails between Plaintiff and her attorney) which were found on her computer and a network server; and (3) it introduced many of the produced e-mails into evidence during Plaintiff’s Loudermill and public School Board hearings. The Court must consider whether Plaintiff has a reasonable expectation of privacy in e-mails (including e-mails between Plaintiff and her counsel) that could be accessed by the forensic investigator solely by searching property owned by GMSD.

Courts have considered the confidentiality of e-mails and documents sent from work computers, including e-mails between attorneys and clients. In re Asia Global Crossing,
Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005), cogently sets forth four critical factors that a court should consider with respect to an employee’s expectation of privacy in computer files and e-mail:

(1) [D]oes the corporation maintain a policy banning personal or other objectionable use,
(2) does the company monitor the use of the employee’s computer or e-mail,
(3) do third parties have a right of access to the computer or e-mails, and
(4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

Id. at 257 (footnote omitted); see also United States v. Nagle, No. 1:09-CR-384, 2010 WL 3896200, at *4 (M.D. Pa. Sept. 30, 2010). The Asia Global court then discussed numerous
federal cases from which these factors were derived. Asia Global, 322 B.R. at 257-58. The conclusion often turned on whether there was a company policy respecting the privacy of work computers; whether the employee was aware of the policy; and whether the company actually implemented its policy. Id. (describing collected cases).

The penis swabbing of defendant in the jail after his arrest for rape as a search incident without a warrant violated the Fourth Amendment, but it was harmless beyond a reasonable doubt because of the DNA evidence found in the rape victim’s underwear. People v. Fulton, 205 Cal. App. 4th 1546, 141 Cal. Rptr. 3d 374 (3d Dist. 2012):

Here, the seizure of the evidence from the defendant’s penis is problematic. It involved a major intrusion on the defendant’s dignity. There is a dispute in authority about the extent to which on proper showing the police can search intimate areas of an arrestee’s person. (3 LaFave, Search and Seizure (4th ed. 2004) Post-Arrest Detention, § 5.3(c), pp. 168-170 & fns. 114, 116; id. 2011-2012 Supp., p. 32.) Yet the prosecution, bearing the burden of justifying the warrantless seizure, made no attempt to establish that the evidence would have been destroyed absent the warrantless seizure. At best, the People want us to assume that such is the case. That is no way to justify a warrantless seizure of evidence.

The stipulated facts established only what happened — evidence was taken from the defendant’s penis without a warrant. The prosecution did not put on evidence concerning the destructibility of the evidence or even that the police had a good-faith belief, or any kind of belief, that the evidence could be destroyed absent the warrantless seizure. (See Schmerber v. California, supra, 384 U.S. at pp. 770-771 [reasonable belief that evidence would be destroyed may justify warrantless seizure].) It should go without saying that the attorneys’ arguments were not evidence. (See CALCRIM No. 222.) Therefore, we are left with a request by the Attorney General to condone a warrantless seizure based on speculation or supposition.

The Attorney General’s argument that this was merely a search incident to arrest does not fare any better. Seizure of evidence from an arrestee’s genitalia is a major intrusion on the arrestee’s dignity. To seize evidence from a person’s genitalia, as part of a search incident to arrest and without a warrant, there must be an exigency justifying the seizure, such as officer safety or imminent destruction of evidence. (See Schmerber v. California, supra, 384 U.S. at pp. 770-771; see also State v. Lussier (Minn.Ct.App. 2009) 770 N.W.2d 581, 589-590.) As noted, there was no such showing here.

While we cannot agree with the Attorney General that the warrantless seizure of evidence from the defendant’s penis was justified, we also disagree with the defendant that this must result in reversal of the judgment against him. Any error in admitting the evidence obtained from the defendant’s penis was harmless beyond a reasonable doubt considering the credibility of the victim and the evidence obtained from the victim’s underwear.

Court dismisses a Foreign Corrupt Practices Act conviction for prosecutorial misconduct, including false information in a search warrant application. United States v. Noriega, 831 F. Supp. 2d 1180 (C.D. Cal. 2011):

In this case, the first Foreign Corrupt Practices Act criminal prosecution against a corporation to proceed to jury trial, the Court has been asked to vacate the convictions and dismiss the indictment because of alleged prosecutorial misconduct. On November 29, 2011, the Court conducted a hearing on this motion. Before the hearing began, the Court provided a draft of this order to all the lawyers and allowed them three hours to prepare for argument. The hearing lasted for more than two and a half hours.

When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith. In this case, for example, the Court denied several previous motions to dismiss and permitted the prosecution to proceed over the heated objections of defense counsel because it was willing to accept the prosecutors’ assurances that their conduct was inadvertent and would not be repeated. The Court even said it was “not anxious to attribute a deliberate, intentional, and devious motive” to the Government. April 5, 2011, R.T. at 448.

In this Court’s experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness. So it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.

Consequently, the Court throws out the convictions of Defendants Lindsey Manufacturing Company, Keith E. Lindsey and Steve K. Lee and dismisses the First Superseding Indictment.

DNA testing of arrestees violates the Fourth Amendment, applying a balancing test. King v. State, 425 Md. 550, 42 A.3d 549 (2012):

Although previously we upheld the constitutionality of the Act, as applied to convicted felons, in State v. Raines, 383 Md. 1, 857 A.2d 19 (2004), the present case presents an extension of the statute, not present in Raines. Thus, we evaluate here rights given to, and withdrawn from, citizens who have been arrested, including the right to be free from unreasonable searches and seizures. Under the totality of the circumstances balancing test, see Knights v. United States, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d (2001), we conclude, on the facts of this case, that King, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State’s purported interest in assuring proper identification of him as to the crimes for which he was charged at the time. The State (through local law enforcement), prior to obtaining a DNA sample from King following his arrest on the assault charges, identified King accurately and confidently through photographs and fingerprints. It had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first-or second-degree assault charges. Therefore, there was no probable cause or individualized suspicion supporting obtention of the DNA sample collection for those charges. We conclude that the portions of the DNA Act authorizing collection of a DNA sample from a mere arrestee is unconstitutional as applied to King. Although we have some trepidation as to the facial constitutionality of the DNA Act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the State to obtain a DNA sample to identify an arrestee accurately.

Strapping plaintiff 5 year old developmentally disabled child into a restraint chair for most of the day at school [apparently just to not deal with the child] was a “trial-worthy issue” for which qualified immunity did not apply. Significantly, there was no exact case in point, but the law was clearly established that the Fourth Amendment applies, albeit relaxed, in schools under T.L.O. A.B. v. Adams-Arapahoe 28J Sch. Dist., 831 F. Supp. 2d 1226 (D. Colo. 2011):

Having reviewed the Fourth Amendment case law at the time of the disputed events, the Court finds that A.B.’s right to be free from unreasonable seizure was clearly established. Since at least 1985, it has been clear that students retain limited Fourth Amendment protections inside the school building. See T.L.O., 469 U.S. at 338. In 2005, the Tenth Circuit held that the seizure of a student is constitutionally permissible if it is “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.” Jones, 410 F.3d at 1228. The Court finds that under this standard, a reasonable person in Michaels’s position would have understood that her actions violated A.B.’s constitutional rights.

Because Plaintiffs have shown a trial-worthy issue as to whether Michaels violated a clearly established constitutional right, Michaels is not entitled to qualified immunity against Plaintiffs’ Fourth Amendment claim. Michaels’s Motion for Summary Judgment is therefore denied in so far as it pertains to Plaintiffs’ Fourth Amendment claim.

This case is significant because the District Court did not even mention that there did not have to be a case in point to find a Fourth Amendment claim was stated. Defendants in § 1983 qualified immunity issues always assert that there is no case in point so qualified immunity should apply. The law doesn’t remotely require that because, if it did, the Fourth Amendment would stop developing and gray areas would forever remain gray.

This will most certainly be appealed before the trial ever occurs. [Note: I normally don’t write about civil cases at the trial court level because I don’t have time, but I report all § 1983 Fourth Amendment appeals. I look for some by title or key words in the case to report on, but 95+% do not get reported here.]

During this stop with reasonable suspicion, the defendant wanted cigarettes and the officer was permitted to go into the car after them, seeing crack cocaine in plain view. United States v. Scott, 463 Fed. Appx. 216 (4th Cir. 2012) (unpublished).*

Defendant’s claim that the government coerced him to provide the password to his cell phone has no support in the record at all. He was only asked his phone number when he was booked. United States v. Askew, 2011 U.S. Dist. LEXIS 152781 (W.D. Ky. December 2, 2011).*

Officers had both reasonable suspicion for a stop and saw a traffic violation. Approaching the vehicle, the officer smelled fresh marijuana, and that was probable cause. United States v. Salcido-Guzman, 2011 U.S. Dist. LEXIS 152791 (W.D. Ky. October 28, 2011).*

The officer’s observation of defendant stopping nearly in the middle of an intersection and almost hitting mailboxes was reasonable suspicion for his stop. State v. Napier, 2012 Ohio 394, 2012 Ohio App. LEXIS 338 (9th Dist. February 6, 2012).*