Defendant was stopped for parking over a line, which was not even a violation of law. Because defendant appeared nervous, the officer frisked him for officer safety. The frisk was unlawful for a stop for something that wasn’t even an offense. Mistake of law will not support a stop. Gilmore v. State, 204 Md. App. 556, 42 A.3d 123 (2012).

Plaintiff’s claim that her arrest was without probable cause or qualified immunity is sustained, and the district court properly granted summary judgment for her. That an arrest without probable cause is unconstitutional is well established. Merchant v. Bauer, 677 F.3d 656 (4th Cir. 2012).*

Presence in a high crime area is not itself reasonable suspicion. Defendant’s flight on seeing officers was not reasonable suspicion in itself, and defendant’s stop was properly suppressed. People v. Harris, 2011 IL App (1st) 103382, 354 Ill. Dec. 336, 957 N.E.2d 930 (2011).*

Defendant’s wife was on probation, and he left a safe open and unlocked in their bedroom. The probation officer came for a probation search, and the search of the safe was valid because it was unlocked, meaning that his wife would have had access to it if she were home. State v. Finley, 2011 MT 218, 362 Mont. 35, 260 P.3d 175 (2011).*

A person at a rapid transit station told police her phone was stolen, and she identified three men as possibly being the one. The officer approached defendant to ask him, and he was agitated, but emptying his pockets. In the process, his shirt came up and the officer could see a gun which he had to struggle with the defendant to remove. The encounter with the defendant was consensual up to that point when reasonable suspicion developed upon seeing the gun. United States v. Ali, 437 Fed. Appx. 439 (6th Cir. 2011).*

The seizure of defendant’s clothing in the ER was not shown to be supported by any exception to the warrant requirement. It was not shown to be inevitable by the state, it was in an opaque bag so not plain view, and it was not by exigency or consent. Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012).

There is no constitutional requirement [citing no cases] that a CI be searched before a controlled buy. Also, the CI here unwittingly led the police to defendant, and that enhanced his reliability. United States v. Donnell, 2012 U.S. Dist. LEXIS 36487 (D. Minn. February 2, 2012).*

Wearing an empty holster and putting something in a saddlebag is probable cause there is a gun in the saddlebag. State v. Pryor, 2012 Ohio 1033, 2012 Ohio App. LEXIS 973 (1st Dist. March 16, 2012).*

Defendant took his computer to a friend who was going to do a software and hardware upgrade on it. While the friend was working on the computer, defendant volunteered there was child pornography on the computer and asked him to destroy it. Instead, he copied it for the police. If anything, defendant had a reasonable expectation that it would be disclosed to the police rather than destroyed when he gave the computer to another. State v. Ballard, 2012 NMCA 43, 276 P.3d 976 (2012),* Certiorari Granted, May 2, 2012, No. 33,565.

Defendant admitted he was speeding, so the officer had probable cause for a stop, and it ripened into reasonable suspicion for a longer stop based on what was observed and from information from other officers. United States v. Mudgett, 2012 U.S. Dist. LEXIS 31720 (D. Minn. February 22, 2012).*

Following the Eighth Circuit, avoiding a DUI checkpoint alone is not enough to make reasonable suspicion. Here, however, there was more. State v. Rademaker, 2012 SD 28, 813 N.W.2d 174 (2012).

2255 inventory claim fails on the merits. “I find no evidence in the record that the impoundment was unlawful or that officers conducted the inventory search before deciding to impound the vehicle.” Brunick v. United States, 2012 U.S. Dist. LEXIS 55096 (D. Or. April 19, 2012).*

A young man brought defendant’s laptop to the police claiming there was teen gay pornography on the screen from websites defendant visited. The officer touched the mousepad and the screen came on showing what he said. The officer’s viewing of the computer went no further than the private search. Then a state search warrant was sought. United States v. Goodale, 2012 U.S. Dist. LEXIS 55554 (N.D. Ga. April 19, 2012),* adopted 2012 U.S. Dist. LEXIS 75331 (N.D. Ga. May 31, 2012).*

Although the officer’s articulated basis of the stop was partly wrong under state law, it was partly right, and that was enough to legally support the stop. State v. Juma, 2012 UT App 27, 270 P.3d 564, 700 Utah Adv. Rep. 64 (2012).*

Minnesota statute requiring DNA production of anybody charged with a felony but pled down to a misdemeanor does not violate the Fourth Amendment or the Minnesota Constitution. State v. Johnson, 813 N.W.2d 1 (Minn. 2012).*

Same with juveniles. In re M.L.M., 813 N.W.2d 26 (Minn. 2012).*

Plaintiff’s home was in foreclosure, and she also had to leave because of ill health. The mortgage holder had the authority to consent to entry of city officials to trap her cats based on the mortgage documents which had “property preservation provisions” for repair. Farinacci v. City of Garfield Heights, 461 Fed. Appx. 447 (6th Cir. 2012).*

Taking a driver’s license is a detention, here with reasonable suspicion, regardless of whether the officer is going to write a ticket or not. Defendant was also frisked during the wait for the records check, and a drug dog arrived and alerted. All this was reasonable. State v. Kilgore, 2012 Tenn. Crim. App. LEXIS 79 (February 10, 2012).*

Boilerplate language about drug trafficking admittedly added little to affidavit for search warrant, but the affidavit did mention seeing marijuana roaches on the premises, and that took it past “bare bones” for good faith exception purposes. United States v. Hollin, 2012 U.S. App. LEXIS 2670, 2012 FED App. 0160N (6th Cir. February 8, 2012) (unpublished).*

A date limitation that went back to 1990 was not overbroad as a matter of law. A search warrant for defendant’s gmail email account for evidence of flight was validly issued because the informant’s story was sufficiently corroborated. United States v. Salyer, 2012 U.S. Dist. LEXIS 16981 (E.D. N.C. February 9, 2012):

First, defendant challenges the inclusion of Category II(C)(1), handwritten lab registers and other documents purportedly relating to fraudulent product labeling, because it includes documents going back to 1990, “long before the relevant time period.” But defendant provides no authority for this view that only documents dated within the “relevant time period” are subject to search. The cases relied upon by defendant do not stand for this proposition. The cited Ninth Circuit cases involved warrants that permitted searches that were not likely to find evidence of a crime at all. Defendant has identified no case, and the court is aware of none, where the “scope” referred to the mere date of the evidence gathered. The government made a probable cause showing that the evidence of the mis-labeling crimes was to be found in the lab registers and similar documents. Therefore, the government was entitled to search the lab registers.

Police were driving down a cul de sac conducting surveillance, and they were made. They stopped when defendant gestured by waiving his arms and slapping his chest. He refused to identify himself, and he got handcuffed. He was asked about whether there was anybody in the house, and he said there was, so the police could go to the door to knock. They were admitted by acquiescence by somebody with actual authority. United States v. Coulter, 461 Fed. Appx. 763 (10th Cir. 2012).*

A bailbondsman sued for assault and trespass was not entitled to a qualified immunity defense when he came into plaintiff’s home. He was sued under § 1983 because he had police officers with him. Gregg v. Ham, 678 F.3d 333 (4th Cir. April 30, 2012)*:

Applying the test articulated in Richardson [Richardson v. McKnight, 521 U.S. 399, 404 (1997)], we conclude that the history and policy behind the qualified immunity defense do not support extending it to bail bondsmen. First, there is no evidence that bail bondsmen have historically been afforded immunity for their actions. In fact, courts have rejected the notion that bail bondsmen act as an arm of the court or perform a public function. See, e.g., Ouzts v. Md. Nat’l Ins. Co., 505 F.2d 547, 554-55 (9th Cir. 1974) (rejecting the “strange thesis” that a bail bondsman is “an arm of the court”); Fitzpatrick v. Williams, 46 F.2d 40, 40 (5th Cir. 1931) (“The right of the surety to recapture his principal is not a matter of criminal procedure, but arises from the private undertaking implied in the furnishing of the bond.”).

Second, the policy justifications underlying qualified immunity do not apply to bail bondsmen. See generally Bailey v. Kenney, 791 F. Supp. 1511, 1523-25 (D. Kan. 1992) (concluding that “[w]ith respect to bail bondsmen, the court finds none of the compelling policy reasons that traditionally justify the availability of qualified immunity to state actors performing discretionary functions”). Courts have traditionally afforded qualified immunity to public officials because susceptibility to suit would distract them from performing their public functions, inhibit discretionary action, and deter desirable candidates from performing public service. See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). There is no need, however, for qualified immunity to shield bondsmen from suit, as they are not entrusted with a public function. To the contrary, while the law certainly allows a bail bondsman to apprehend a fugitive, that right is exercised in tandem with the obligation of law enforcement to accomplish the same objective. See Bailey, 791 F. Supp. at 1524.

Moreover, rather than operating in the interest of public service, the work of a bail bondsman is fueled primarily by a strong profit motive. See Richardson, 521 U.S. at 409-10 (highlighting the importance of “ordinary marketplace pressures”). Accordingly, even if bail bondsmen are entrusted with a public function, the economic incentives inherent in the system would “ensure an ample number of qualified persons willing to assume the occupational risks of apprehending fugitives.” Bailey, 791 F. Supp. at 1524.

In sum, neither history nor policy support extending the qualified immunity defense to bail bondsmen. Ham is therefore unable to show error, plain or otherwise, based on the district court’s jury instruction on a defense to which he was not entitled.

Blocking defendant’s car made the encounter a seizure. [This case provides a wealth of caselaw.] United States v. Jones, 678 F.3d 293 (4th Cir. 2012):

That this was not a routine encounter, but one targeted at Jones seems to us particularly significant given that the officers blocked in Jones’s car to effectuate the encounter. In United States v. Green, 111 F.3d 515 (7th Cir. 1997), the Seventh Circuit considered a very similar case. There, as here, the police followed a car into a driveway where the driver parked the car, and there, as here, the defendant then exited his car. Id. at 517. The Seventh Circuit concluded that, although the driver was no longer in his car, and indeed was walking away from his car toward a house, when “the officers pulled their car in behind the [defendant’s car], blocking the car’s exit … a reasonable person would not feel that he was free to leave.” Id. at 520 n.1. Accordingly, the court found that the police had seized not only the passenger who remained in the car but also the driver who had left it. Id.

This holding comports with that of numerous other courts considering similar facts. …

We agree that when an officer blocks a defendant’s car from leaving the scene, particularly when, as here, the officer has followed the car, the officer demonstrates a greater show of authority than does an officer who just happens to be on the scene and engages a citizen in conversation. For this reason, the three cases on which the Government relies are inapposite. … Rather, Jones saw the officers follow his car from a public street onto private property and then block the car from exiting in their haste to speak with him.

The Government contends that the placement of the police cruiser has minimal relevance because, as the police approached, two of Jones’s companions walked away from the car—one into an apartment and one in the other direction —and the officers did not chase after them or call them back. But it is not altogether clear to us which way this fact cuts. On the one hand, that the officers allowed two passengers to walk away from the vehicle could convey to a reasonable person that he, too, was free to walk away.

The police violated a juvenile rape suspect’s Fourth Amendment rights by getting his mother’s consent to a penile swab for DNA. The state’s showing of exigency was insufficient. This was harmless error here, however, where the victim ID’d him and his DNA was left on her and on a ski mask. Lee v. State, 967 N.E.2d 529 (Ind. App. 2012):

The absence of evidence that officers actually believed DNA was about to be destroyed might be due to a lack of evidence that would sufficiently support the State’s appellate claim that the officers did so believe, or it might be due to Lee’s failure to object and thereby press the State to present evidence thereof. In any event, our narrowly tailored holding is that sufficient evidence of exigent circumstances was not presented at trial. Because it is the State’s burden to present such evidence to overcome a presumption of unreasonableness, its failure to overcome that burden renders the admission of such evidence erroneous without another valid justification.

On appeal, the State compares this case to two cases from other jurisdictions in which officers apprehended suspects of sexual assaults soon after the crimes occurred and obtained penile swabs of the suspects in a manner such that appellate courts later held the swabs justified by exigent circumstances. See Kaliku v. U.S., 994 A.2d 765 (D.C. Cir. 2010); Ontiveros v. Texas, 240 S.W.3d 369 (Tex. App. 2007), petition stricken. We agree that the offenses under investigation in Kaliku and Ontiveros are similar to this case, and that the officers faced a similar situation in those cases as the officers did here. We conclude differently from Kaliku and Ontiveros because the evidence presented at Lee’s trial regarding officers’ thoughts and actions do not demonstrate they actually believed Lee might destroy any DNA evidence on his penis.

. . .

Detective Cress’s short statement that he would not allow Lee to wash his hands, without further elaboration, pales in comparison to the evidence presented in Kaliku and Ontiveros, and is insufficient to overcome the State’s burden to demonstrate officers actually held an objective, reasonable belief that evidence was about to be destroyed.9

9 Further, it should be noted that if officers wanted Lee’s DNA, exigent circumstances certainly did not exist because Lee’s DNA would not change and officers could have obtained a warrant and obtained his DNA later.

It was not objectively unreasonable for a drug officer to trust the representations of FedEx when they suspected a package. Although the first search of the package was unreasonable, a second with a warrant was distanced from the first and disclosed. The good faith exception can apply to a warrant after an initial illegal search. United States v. Poor, 2012 U.S. Dist. LEXIS 85529 (E.D. Ky. June 20, 2012)*:

The Court believes, however, that the statement in Davis [United States v. Davis, 430 F.3d 345 (6th Cir. 2005)] and the McClain [United States v. McClain, 444 F.3d 556 (6th Cir. 2005)] opinion can be reconciled. It is important to note that the statement in Davis was made in a footnote and the government had not raised the Leon argument. Thus, the statement was not intended to be a complete analysis of the issue of whether the good-faith exception applies where a warrant affidavit relies on illegally obtained evidence.

In McClain, in contrast, the court intended to and did squarely address the issue of whether the good-faith exception applies where the affidavit supporting a search warrant relies on evidence obtained in violation of the Fourth Amendment. McClain, 444 F.3d at 564. This Court reads Davis and McLean together to hold that the good-faith exception to the exclusionary rule can apply where an affidavit relies in part on evidence obtained in an illegal search only if 1) the officers who conducted the initial illegal search or seizure were not objectively unreasonable; 2) there is no evidence that the officers knew they were violating the Fourth Amendment when they performed the illegal search or seizure; 3) the officers who sought and executed the search warrant were not the same officers who performed the illegal search; 4) the warrant affidavit fully disclosed to a neutral and detached magistrate the circumstances surrounding the initial warrantless search; and 5) the facts surrounding the initial warrantless search were close enough to the line of validity to make the executing officers’ belief in the validity of the search warrants objectively reasonable. McClain, 444 F.3d at 566.

Defendant was indicted in Kentucky in the Sixth Circuit, but a GPS on his vehicle was monitored across the Ohio River bridge in Indiana in the Seventh Circuit, so for Davis good faith exception purposes, Seventh Circuit case law was settled that GPS tracking was permissible before Jones. Alternatively, a single monitoring instance rather than Maynard/Jones’s 60 days was not unreasonable. United States v. Shelburne, 2012 U.S. Dist. LEXIS 85368 (W.D. Ky. June 20, 2012)*:

Although the defendants were indicted and face charges in this court, within the Sixth Circuit, our case is very different from the case which faced the court in Lee. The law enforcement officials who attached the GPS tracking device and monitored its location in this case were Jeffersonville Police Department detectives in Jeffersonville, Indiana. Indiana is within the Seventh Circuit, where two binding appellate decisions had held that the limited use of a GPS tracking device was not a “search” for Fourth Amendment purposes.

In a mail fraud case for violations of the Clean Water Act, the search warrant for the business’s records was issued with probable cause: “Hailey’s inconsistent statements and inability to identify or locate records of the sources of his vegetable oil donors, or the buyer of his equipment, and his provision of a photograph of another facility, ECF No. 62-1, showed that Hailey had probably issued RINs without producing bio-diesel, and fraudulently caused wire transfers. There was ‘a fair probability that contraband or evidence of a crime [would] be found’ in Hailey’s business records and in his home, office, and production facility.” United States v. Hailey, 2012 U.S. Dist. LEXIS 82053 (D. Md. June 13, 2012).* [If lack of probable cause is your only issue, you’re almost certainly going to lose. The threshold is just not that high, and a judicial finding of PC is almost unassailable.]

Defense counsel was hardly ineffective for not challenging the search and seizure in this case. The place searched was in “open fields,” a ditch near a road where drugs were hidden across the street. Besides, it’s almost a certainty he lacked standing to challenge the search at all. Nunn v. United States, 2012 U.S. Dist. LEXIS 81955 (M.D. Ala. May 29, 2012).*

Defendant was stopped for jaywalking and he admitted having marijuana which was produced. The officer conducted a patdown and felt something that was indiscernible, but was clearly not a weapon. A search produced crack, and the search was unjustified. The defendant had been stopped the day before by the same officer and apparently endured the same search. State v. Byrd, 2012 Ohio 2659, 2012 Ohio App. LEXIS 2336 (2d Dist. June 15, 2012).*

Defendant lost suppression motion apparently because she thought the state had to justify the seizure of every item in the search warrant. It was seizure under a warrant, and the defense had the burden. State v. Crumpler, 2012 Ohio 2601, 2012 Ohio App. LEXIS 2288 (9th Dist. June 13, 2012).*

Defendant’s vehicle was properly ordered towed where it was left blocking in a private business’s driveway. State v. Neal, 2012 Ohio 2609; 2012 Ohio App. LEXIS 2295 (9th Dist. June 13, 2012).*

A DV report described a suspect with a black shirt with skulls on it. Defendant was the only one around with skulls on it, so the stop was valid. State v. Will, 2012 Ohio 2616, 2012 Ohio App. LEXIS 2300 (9th Dist. June 13, 2012).*

Motion to suppress filed twelve days before trial and a month after the motions cutoff was clearly untimely and there is no good cause tendered for the delay. Nevertheless, the court will go to the merits [meaning: the court can rule against the defense anyway, so why leave this 2255 issue looming?]. “[I]ncluding but not limited to” in a search warrant with a specific list is not an authorization for a general search because it has to be read in context of what it connects to. Even so, the good faith exception applies. United States v. Staton, 2012 U.S. Dist. LEXIS 83933 (E.D. Pa. June 15, 2012):

Thus, general phrases in a warrant must be read in the context of the entire warrant and not in isolation. Andresen, 427 U.S. at 473; see also United States v. Johnson, 690 F.2d 60, 64 (3d Cir. 1982) (noting that warrants must be read as a whole). Here, the phrase “including but not limited to,” followed by the list of materials, certainly is not separate from the list of items to be searched and seized. Based upon a reasonable reading of the language, “including but not limited to” refers to and modifies the prior phrase “business records.” If anything, the list of seven categories of materials, and specific examples, that follow define the term “business records” more narrowly and therefore limit, rather than expand, the scope of the searches. Accordingly, the three warrants at issue are not general warrants. See $92,422.57, 307 F.3d at 149 (holding that while the scope of the warrant at issue “was certainly extensive, the warrant was not general” since the warrant “‘describ[ed] in … inclusive generic terms what is to be seized'” and “did not vest the executing officers with ‘unbridled discretion’ to search for and seize whatever they wished”); …

West Virginia law does not require two side mirrors, so the fact defendant’s car was missing the passenger side mirror was not cause for a stop, and it didn’t render the vehicle unsafe. Similar is State v. Reid, 722 S.E.2d 364 (Ga. App. 2012), where the vehicle had no side mirrors but Georgia law didn’t require them. State v. Dunbar, 2012 W. Va. LEXIS 307 (June 13, 2012).*

The USMJ erred in concluding that a U.S. MLAT request of the Netherlands to locate the defendant for an arrest led to a joint venture. On his own, the Netherlands police officer requested a wiretap warrant to locate defendant’s telephone. The U.S. had nothing to do with the wiretap request, so the product of that was not a joint venture. The fact the U.S. requested copies of tapes and transcripts that weren’t forwarded until after he was wasn’t important. United States v. Omar, 2012 U.S. Dist. LEXIS 83665 (D. Minn. June 18, 2012).

Defendant was convicted of rape and murder based on a CODIS hit. His previous DNA draw was the result of his Tennessee arrest on a Mississippi fugitive warrant for a violent offense there. While the Mississippi charge had been dropped, Tennessee was never told. He was actually a felon, so no harm, no foul. State v. Scott, 2012 Tenn. Crim. App. LEXIS 302 (May 10, 2012).*

The state concedes that the traffic stop that led to the smell of marijuana wasn’t legal after all. Riggle v. State, 967 N.E.2d 522 (Ind. App. 2012).*

The trial court apparently discounted the officer’s testimony that defendant was following a tractor-trailer too close when the officer stopped him for a lack of proof of the traffic offense. When defendant refused to consent to a search, the officer got out a drug dog. The court of criminal appeals affirmed because the evidence does not preponderate against the finding. State v. Baldwin, 2012 Tenn. Crim. App. LEXIS 294 (May 10, 2012).*

Removing the false information from the affidavit still left probable cause under Franks. United States v. Glisson, 460 Fed. Appx. 259 (4th Cir. 2012)*:

Although it is undisputed that the affidavit supporting the search warrant contained numerous false statements, the district court correctly found that after the false statements are removed from the affidavit the remaining information in the affidavit still “informs that a subject arrived to the hospital with a gunshot wound, that there were spent shell casings throughout the vehicle in which the subject arrived, and that there had been a shooting earlier in the day.” J.A. 240. In light of this, we agree with the district court that “there is a fair probability that contraband or evidence of a crime will be found in a vehicle which has blood, firearm shell casings, and an individual with a gunshot wound as its cargo.” J.A. 240. Therefore, we find that when the false information is excised from the affidavit, the remaining factual allegations are sufficient for a magistrate to find probable cause for a search warrant.

The officer had reasonable suspicion for stop of the driver of a parked tractor trailer with Florida parts after he saw it at a truck stop at 5 am with a covered vent hole suggesting a false compartment, the driver switched with the driver of a Ford Explorer, the truck was driven to rural property and parked, and the Ford driver was apparently doing counter surveillance. United States v. Gonzalez-Rodriguez, 456 Fed. Appx. 494 (5th Cir. 2012) (unpublished).*

John Yoo gets immunity under Ashcroft v. al-Kidd for the “Torture Memo.” Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012):

After the September 11, 2001 attacks on the United States, the government detained Jose Padilla, an American citizen, as an enemy combatant. Padilla alleges that he was held incommunicado in military detention, subjected to coercive interrogation techniques and detained under harsh conditions of confinement, all in violation of his constitutional and statutory rights. In this lawsuit, plaintiffs Padilla and his mother, Estela Lebron, seek to hold defendant John Yoo, who was the Deputy Assistant Attorney General in the U.S. Department of Justice’s Office of Legal Counsel (OLC) from 2001 to 2003, liable for damages they allege they suffered from these unlawful actions. Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla’s detention and the wisdom of Yoo’s judgments, at the time he acted the law was not “sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]” the plaintiffs’ rights. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.