ABAJ.com: Judge Orders DA to Give Lawyer Copies of Documents Seized in Police Raid of His Law Office by Martha Neil:

A state-court judge has ordered the local district attorney’s office to provide to a New York lawyer copies of all documents seized during a police raid last week of his law office.

Ezequiel Neuman, 51, doesn’t know what his court schedule is because his calendar was seized, defense attorney Edward Menkin told Onondaga County Judge Anthony Aloi. He ordered that copies of the documents be provided to Neuman during a ruling from the bench on Tuesday morning, the Post-Standard reports.

Neuman was arrested last week on a felony charge of bribing a witness. He is accused of offering a client $50,000 not to testify in a murder case.

NetworkWorld.com: Bill proposes to protect Americans’ privacy from warrantless drone surveillance by Ms. Smith:

Didn’t hear anyone yell “Fore,” yet wonder if that is a golf ball in the sky? It’s not; it’s a drone and it’s coming. Judge Andrew P. Napolitano warned about the “coming use of drones – some as small as golf balls – to watch us, listen to us and record us. Did you consent to the government having that power? Did you consent to the American military spying on Americans in America? I don’t know a single person who has, but I know only a few who are complaining.”

Although Secrecy News reported the Senate Armed Services Committee said drones need to operate ‘freely and routinely’ in America, you can add Senator Rand Paul to that “few” who are raising a ruckus about drones. Senator Paul proposed a bill to prevent warrantless drone surveillance. He said, “The Preserving Freedom from Unwarranted Surveillance Act of 2012 will protect American’s personal privacy. Like other tools used to collect information in law enforcement, in order to use drones a warrant needs to be issued. Americans going about their everyday lives should not be treated like criminals or terrorists and have their rights infringed upon by military tactics.”

“A drone is a very, very powerful way of snooping on behavior,” Sen. Paul told CNN.

ABAJ.com: Feds Raid Utah Law Offices in Probe of Loan Modification Work by Martha Neil:

Multiple federal agencies including the FBI, IRS and the office of the inspector general for the Troubled Asset Relief Program raided three offices affiliated with a Utah law firm Tuesday.

The U.S. Attorney’s office in Utah confirmed the raid on the CC Brown Law Office in Midvale and West Valley City, in cooperation with local authorities, but said the search warrant is sealed and no criminal charges have been filed, according to a local ABC News affiliate and Salt Lake Tribune.

Thermal imaging neighborhoods: Reason Magazine: Public Defender in GA: Cops Can’t Use Thermal Images of Possible Grow Lights For Search Warrants by Matthew Feeney:

A public defender in Georgia is hoping to have his client’s case dismissed by a Georgia Superior Court after claiming that evidence against his client was illegally obtained. James Brundgie has been charged with the manufacture of marijuana, possession with intent to distribute, and possession of a controlled substance after a judge approved a warrant to search his property after thermal imaging detected a ‘hot spot’ in his garage. If the search warrant is upheld it will be a worrying precedent to set as police forces and other agencies will be able to justify thermal imaging of entire neighborhoods in search of similar ‘hot spots’.

The public defender, Benjamin Pearlman, is rightly arguing that the warrant should never have been issued as Georgia law states that a warrant may not be issued ‘for anything other than physical, tangible evidence.’ It is hard to see exactly how a thermal scan fits into the category of physical or tangible evidence.

While state law may say “tangible evidence,” the Fourth Amendment is not so limited, so this is a state law argument only.

Merely alleging there was a basis for a suppression motion that was not filed does not allege IAC under Strickland. United States v. Action, 2012 U.S. Dist. LEXIS 81137 (S.D. Tex. June 12, 2012):

[B]y arguing that “there was a sufficient basis to file a motion to suppress,” and that the defense “had nothing to lose and everything to gain” by filing the motion, Defendant does not establish ineffective assistance of counsel. Defendant must do more than allege there were grounds for filing the motion; he must prove that the motion would have been granted. He must move beyond asserting that there was no downside to filing the motion; he must establish a reasonable probability that, but for counsel’s failure to file the motion, the result of his proceeding would have been different.

Defendant’s repeated refusal to remove his hands from his pockets during a traffic stop became reasonable suspicion. United States v. Fletcher, 2012 U.S. Dist. LEXIS 79795 (M.D. Tenn. June 8, 2012).*

When defendant’s DL was called in, there was a note to call his federal PO, which happened. That did not unreasonably extend the length of the stop. United States v. Campbell, 2012 U.S. Dist. LEXIS 81083 (E.D. Tenn. May 22, 2012).*

The excuse for stopping the defendant was that the license plate looked counterfeit, but it was apparent that it was not, and the reason for the stop thus evaporated. There is no law prohibiting a driver from using the roads of this country with a Mexican driver’s license. The officer called for a tow truck without any reason, and then conducted a rummaging search that was a purported inventory. The government’s failure to raise standing until the suppression hearing was waiver of the issue because it prejudiced defendant’s ability to prove standing. United States v. Garcia-Medina, 2012 U.S. Dist. LEXIS 80620 (D. Utah June 8, 2012):

It is well-established that an inventory search may not be used as a ruse for a general search. Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990) (“Our view that standardized criteria or established routine must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.”) (internal citations omitted). …

Here, Trooper Sheets did not write anything down. He was not methodical in his search. He was tapping and rummaging, looking for something hidden. He called for a drug-sniffing dog without any basis for suspecting that drugs were present. And he made that request almost immediately after he requested the tow truck, even though at that point in the stop he had not asked Mr. Garcia-Medina questions to dispel his concerns about the driver’s license, Mr. Garcia-Medina’s residency in Arizona, or anything else of substance. The court finds that the purported inventory search was a pretext for investigating criminal activity and so it violated Mr. Garcia-Medina’s Fourth Amendment rights.

Strip searches of everybody at the jail, even those not going into general population, might be unreasonable even under Florence which left that question open, but, for civil liability, the question is “clearly established law,” and it’s not. Wamble v. County of Jones, 2012 U.S. Dist. LEXIS 79969 (S.D. Miss. June 8, 2012)*:

In the wake of Florence, the central question is whether Merrill violated clearly established law by allegedly participating in the search of Wamble. Merrill argues that he could not have violated clearly established law because the Florence Court left “open the possibility of exceptions” to the blanket rule that newly arrested persons may be strip-searched without reasonable suspicion if they are going to be booked into the general population of a detention facility. Florence, 132 S. Ct. at 1523 (Roberts, J., concurring).

When there is an “open question” as to whether certain conduct is unconstitutional, the law cannot be considered clearly established. See Mitchell v. Forsyth, 472 U.S. 511, 535 (1985) (holding that defendant was entitled to qualified immunity because “[t]he decisive fact is not that Mitchell’s position turned out to be incorrect, but that the question was open at the time he acted”); Shepard v. Ripperger, 57 Fed. App’x 270, 272 (8th Cir.2003) (“Because the legality of refusing to identify oneself to police is an open question, it is not clearly established law for the purpose of denying qualified immunity.” (citations omitted)); Polk v. District of Columbia, 121 F. Supp. 2d 56, 70 -71 (D.D.C.,2000) (“In both Davis v. Scherer and Mitchell v. Forsyth, the Supreme Court’s holdings that the law was not clearly established turned on the fact that there was an ‘open question’ whether the Constitution outlawed the conduct at issue.” (citations omitted)).

Thus, “[g]iven the Supreme Court’s express reservation of the question of whether” detainees who are not going to be held overnight in a cell with other inmates may be strip-searched without a reasonable suspicion, the “contours” of Wamble’s right to be free from unreasonable searches are “not sufficiently clear that the unlawfulness” of the search to which he was subjected would be “apparent” to all reasonable officials.

NYTimes.com: Stop-and-Frisk Policy ‘Saves Lives,’ Mayor Tells Black Congregation by Kate Taylor:

As criticism of the Police Department’s so-called stop-and-frisk policy grows louder, Mayor Michael R. Bloomberg took to the pulpit before a black congregation in Brooklyn on Sunday to make his most forceful and nuanced defense of the practice yet, arguing that it had helped make New York the safest big city in the country, while acknowledging that the police needed to treat those whom they stopped with greater respect.

After defendant was stopped, the officer told dispatch he was going to have to follow him to a checkpoint for a dog sniff. The district court erred in finding consent. The officer made it clear to the dispatcher, in defendant’s presence, that he planned to take defendant to the checkpoint “to run the dog on him,” the officer obtained defendant’s verbal consent to follow him to the checkpoint while he was in the police cruiser, defendant was in the cruiser at the officer’s direction and each time he exited the cruiser, he obtained the officer’s permission, and the officer never advised defendant he was free to go or decline his invitation to follow him to the checkpoint. United States v. Zavala, 459 Fed. Appx. 429 (5th Cir. 2012) (unpublished).*

Defendant’s stop for a seatbelt violation was valid and with probable cause. His admissions thereafter were valid. United States v. Adams, 2012 U.S. App. LEXIS 1781 (4th Cir. January 25, 2012) (unpublished).*

Defendant’s search claim was decided in the criminal case, so it couldn’t be brought up in the § 2255. United States v. Williams, 2012 U.S. Dist. LEXIS 12593 (D. Ore. February 1, 2012).*

Despite Ybarra, the police had reasonable suspicion for a stop and frisk of defendant who was with a group where some were openly dealing drugs in front of a house. Williams v. Commonwealth, 364 S.W.3d 65 (Ky. 2011):

Police had reasonable, articulable suspicion of criminal activity to justify the Terry stop of Williams. He was part of a distinct group of nine people loitering in front of a vacant house. Police observed two or more members of the group smoking marijuana, and one person adulated to police that he possessed a bag of marijuana. When police approached, they quickly discovered two handguns on two different people. So the officers had reasonable, articulable suspicion of drug use and the potentially dangerous presence of concealed deadly weapons justifying an investigatory stop of all the persons in this group. Once the officer made the constitutional investigatory stop, he had reason to believe that Williams was armed and dangerous because the officer saw the bulge created by the handgun concealed in Williams’s clothing in the center of Williams’s back. So we find that this seizure of Williams was a constitutional Terry stop.

While defendant originally refused to consent saying that the apartment he was staying in belonged to his friend, he still had a reasonable expectation of privacy in the apartment. He ultimately consented to an entry to look at a rifle that he said had been left there by another for hunting when it was not yet hunting season. He was then a felon in possession. United States v. Rogers, 661 F.3d 991 (8th Cir. 2011).*

The City of Liberty, Kentucky, in a case fraught with irony by the location, cannot conduct checkpoints to stop cars to check whether the car has a affixed a “city sticker” proving that the cars on the street belong to residents. It utterly fails Edmond, Prouse, Sitz, and special needs analysis. This had no valid safety purpose for a checkpoint. Search incident occurred. Singleton v. Commonwealth, 364 S.W.3d 97 (Ky. 2012):

The Commonwealth argues that Prouse should be read as approving traffic checkpoints designed to verify compliance with vehicle registration and operator licensing laws which have no impact upon highway safety. We must disagree. In Prouse, the checkpoint’s purpose was found valid only because the licensing and registration requirements advanced the public interest in highway safety:

We agree that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed. Automobile licenses are issued periodically to evidence that the drivers holding them are sufficiently familiar with the rules of the road and are physically qualified to operate a motor vehicle. The registration requirement and, more pointedly, the related annual inspection requirement in Delaware are designed to keep dangerous automobiles off the road. Unquestionably, these provisions, properly administered, are essential elements in a highway safety program.

Prouse, 440 U.S. at 658 (footnotes omitted).

This point was expressly confirmed in Edmond, “Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control.” Edmond, at 40.

As the trial court found, the City of Liberty’s sticker ordinance “does not have as its purpose anything remotely connected to border patrol or highway safety.” We find nothing in the record to refute that finding. It is also apparent that the checkpoint had no information-seeking function of the sort approved in Lidster. The checkpoint’s only purpose was to enforce a revenue-raising tax upon vehicles in the city. Thus, the checkpoint to enforce the sticker ordinance comports with none of the purposes which the United States Supreme Court has found to be important enough to override the individual liberty interests secured by the Fourth Amendment.

[Note: They should be thankful this was resolved in a criminal case rather than an expensive civil rights case like Edmond was.]

An arrest warrant for a minor infraction still justified an entry into the home to arrest. The search was limited to looking for a person. Evidence found on defendant’s person was legally seized. Jones v. State, 314 Ga. App. 247, 723 S.E.2d 697 (2012):

Here, the officers’ entry into the home was not warrantless. Instead, the officers entered Brown’s residence, reasonably believing she was present in the home at the time, to execute a valid arrest warrant. … Importantly, the police limited their search to those areas in which Brown might be located; there was no evidence that they attempted to search the house for narcotics or any other items. Under these circumstances, because the police had a valid arrest warrant for Brown (albeit for a minor infraction), and because the officers properly limited their search of her home to those areas where she might be located, the fact that they might have been motivated to enter the house to search for drugs was immaterial and does not render the entry and subsequent seizure of evidence from Jones illegal. …

The officer responded to a loud music complaint, and came up to defendant’s porch were he saw the defendant smoking a joint. Opening the screen door on the porch did not violate any reasonable expectation of privacy. The officer opened the screen door because defendant couldn’t hear him. State v. Plaehn, 2012 Iowa App. LEXIS 44 (January 19, 2012).*

Defendant failed in a Franks challenge where all he could show was that the officer didn’t learn of the possible falsity of the information in the warrant request until after it was sought. State v. Brown, 2012 Iowa App. LEXIS 35 (January 19, 2012).*

Defendant’s telephone number was first associated with alien smuggling, and then his car was seen and followed. When 4-6 people got out of the car, the officer had reasonable suspicion to stop the vehicle. United States v. Salas-Avalos, 459 Fed. Appx. 318 (5th Cir. 2012) (unpublished).*

There was probable cause for issuance of the search warrant for defendant’s house, and the list of things to be searched for included a list of items taken in other crimes: “The specific list of items to be seized was based on Lt. Phister’s sworn statements regarding his investigation of recent criminal activity, including items alleged to have been stolen at gunpoint from various victims and a bottle allegedly used to perpetrate a sexual assault on one of the victims.” This was constitutionally adequate. State v. Allen, 2012 Ohio 249, 2012 Ohio App. LEXIS 205 (9th Cir. January 25, 2012).*

Defendant was stopped for a traffic offense. After the officer asked for and received consent to search the car, defendant fled. His lawyer was not ineffective for not raising the issue. Ross v. State, 313 Ga. App. 695, 722 S.E.2d 411 (2012).*

The fact it was “possible” officers violated plaintiff’s rights in arresting him was insufficient when there were no facts in the record to support it. Hernandez v. Story, 459 Fed. Appx. 697 (10th Cir. 2012) (unpublished).*

Officer’s mere direction to the defendant to “show your hands” did not constitute a seizure under the Fourth Amendment. Defendant then fled and abandoned a gun. United States v. Grant, 459 Fed. Appx. 154 (3d Cir. 2012) (unpublished):

The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV. An encounter between a police officer and a citizen will only trigger Fourth Amendment protections when “it loses its consensual nature.” United States v. Smith, 575 F.3d 308, 312 (3d Cir. 2009). Thus a “seizure” for Fourth Amendment purposes occurs only when “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). “[T]he test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). To trigger a “seizure” a citizen must submit to an officer’s show of authority and do so beyond mere momentary compliance. See United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000). See also Smith, 575 F.3d at 316 (“Two steps towards the hood of a car does not manifest submission to the police officers’ show of authority”).

As the officers did not use physical force until after the gun had been abandoned, Grant contends the officer’s instructions to “show your hands” constituted a show of authority to which Grant complied to by raising his hands. We disagree. As the District Court determined, Grant raised his hands at practically the same time as his flight. Thus, at most, he did nothing more than momentarily comply with the officer’s show of authority. This is not a “seizure” under our Fourth Amendment jurisprudence. See Valentine, 232 F.3d at 359. Because no Fourth Amendment seizure occurred, we do not need to consider whether the seizure was reasonable. Smith, 575 F.3d at 313 (“As such, any seizure inquiry has two steps: Was there in fact a seizure? If so, was that seizure reasonable?”).

Officers in an unmarked car pulled up next to the defendant and saw him counting money with drugs in his possession in plain view. At that point, they had reasonable suspicion. Merely pulling up next to him without any indication he was to stop was not a detention. United States v. Skinner, 459 Fed. Appx. 180 (3d Cir. 2012) (unpublished)*:

The primary issue here is whether the officers illegally stopped Skinner when they pulled up beside his car in an unmarked police car, in plain clothes, and saw Skinner counting money with drugs in his possession. In order to trigger Fourth Amendment protection against an unreasonable search or seizure, a defendant must first be seized through the use of physical force or a show of authority. United States v. Williams, 413 F.3d 347, 352 (3d Cir. 2005). The record indicates that the officers did not stop or seize Skinner until after they observed him counting money with cocaine on his lap.

[And don’t inventory your money and drugs sitting in a car on the street in plain view.]

Despite defendant’s claim that the officer merely detained him for showing up where they were, the officers collectively had reasonable suspicion that defendant might be involved with others the police were investigating and one person was unaccounted for. United States v. Dunning, 666 F.3d 1158 (8th Cir. 2012).*

Defendant was lawfully “stopped” after he stopped his car at his mother’s house. There is no prohibition against a stop in front of defendant’s own home, let alone his mother’s. See O’Malley v. City of Flint, 652 F.3d 662, 670 (6th Cir. 2011) (stop in defendant’s own driveway); see also Illinois v. McArthur, 531 U.S. 326, 335 (2001) (arrest in defendant’s own doorway). United States v. Wade, 2012 U.S. Dist. LEXIS 10498 (E.D. Tenn. January 30, 2012).*

Defendant’s parole search of his house was justified by reasonable suspicion where he was a shooting victim in his front yard and didn’t cooperate in the investigation, had numerous violations before, and a gun box without the gun was found outside the house. United States v. Lynch, 459 Fed. Appx. 147 (3d Cir. 2012) (unpublished).*

Defendant’s parole officer got a telephone call from an anonymous CI that gave information that defendant was engaged in drug dealing from his apartment. There was limited predictive information, but, at the scene, the officers saw nothing that corroborated what the informant was saying. They knocked at his door, got no answer, and entered with a passkey. The motion to suppress was granted for lack of reasonable suspicion of criminal activity despite the CI’s story. United States v. Perminter, 2012 U.S. Dist. LEXIS 10836 (W.D. Pa. January 30, 2012).*

Defendant’s cell phone was seized without a warrant on suspicion of having child pornography on it. They waited six days to get a search warrant for the phone. “Although we agree with Burgard that the officers did not act with perfect diligence, we do not find the delay here to be so egregious that it renders the search and seizure unreasonable under the Fourth Amendment.” United States v. Burgard, 675 F.3d 1029 (7th Cir. 2012).

Officers had an arrest warrant because of defendant’s indictment. While in his house on the arrest warrant, defendant consented to a search of the house, so his 2255 fails on this ground. [Default unmentioned.] Martinez v. United States, 2012 U.S. Dist. LEXIS 45718 (S.D. N.Y. March 30, 2012).*

The district court’s finding of consent was, it said, a close call, but defendant was advised of his right to refuse and consented. [Thus, advice of right to refuse consent was apparently determinative when consent was a close call.] United States v. Mendoza, 677 F.3d 822 (8th Cir. 2012)*:

. . . The validity of consent is a question of fact, which we review for clear error. See id.

The district court recognized the factual record made this case a close call. On the one hand, Mendoza did not explicitly state the officers were permitted to search the Louis Place residence or sign the consent-to-search form, and the significant police presence at the roadside stop and the residence raise the possibility Mendoza merely acquiesced to police authority. See id. at 773. On the other hand, Mendoza’s gestures and body language indicated his consent. Officer Fink and Detective Batcheller specifically informed Mendoza of his right to refuse consent, and Mendoza clearly understood this right, because he initially refused consent and bargained with the officers regarding the terms of his consent.

The state did not prove the standardized policy for an inventory, so it fails in this case. The state does not have to rely on a statute, and policy is good enough. Although case law has not indicated the policy needs to be admitted into evidence, others have said that it is relevant. Berry v. State, 967 N.E.2d 87 (Ind. App. 2012). The court almost, but doesn’t quite, hold that the policy must be admitted. Considering the outcome, that is a logical conclusion:

Despite characterizing Officer Sherrell’s testimony as describing the “primary operating procedure prior to towing a vehicle,” the record lacks any evidence of Indianapolis Metropolitan Police Department policy on impoundment. (Appellee’s Br. p. 4). Thus, we cannot say whether Officer Sherrell’s discretion to impound Berry’s vehicle was in keeping with such policy. Furthermore, although the State argues that Berry has cited no case law for the proposition that a written law enforcement policy must be introduced into evidence to justify impoundment, we note that other cases have found formal policies relevant in justifying impoundment. See Peete v. State, 678 N.E.2d 415, 420 (Ind. Ct. App. 1997), trans. denied (Indianapolis Police Department policy on impoundment). Consequently, we conclude that the State failed to prove that an exception to the warrant requirement existed at the time of the inventory search of Berry’s car.