A suspect does not have a right to know what it is the police are looking for in a consent search, which is essentially his only issue for suppression. Here, defendant clearly consented by signing a consent form and even unlocked doors for the officers. He’s been through a police investigation before that was apparently fruitless and consented to a search there. State v. Chesrown, 2012 Ohio 2476, 2012 Ohio App. LEXIS 2175 (9th Dist. June 6, 2012).*

That defendant may have been injured in an accident did not affect the admissibility of the evidence in a DUI case by motion to suppress. That went to weight of the evidence. Even assuming the officers misstated their ability to force a blood draw, that does not require suppression of the search here. State v. Walters, 2012 Ohio 2429, 2012 Ohio App. LEXIS 2138 (9th Dist. June 4, 2012).*

While the officers never saw money change hands, they had probable cause to arrest defendant after months of investigation, wiretaps, and tailing the defendant on drug runs, always on a Sunday. United States v. Rucker, 2012 U.S. Dist. LEXIS 78323 (N.D. Fla. June 6, 2012).*

In a combined First and Fourth Amendment case, plaintiff was at a city council meeting to speak, and he was animated and concerned others when they determined he was armed. He was removed from the meeting, and it was determined that he was a law enforcement officer, so they let him back in. The decision to remove him was reasonable under the circumstances. Sandefur v. Hanover Park, 2012 U.S. Dist. LEXIS 79412 (N.D. Ill. June 7, 2012)*:

Here, the court finds it significant that the stop took place in the context of a Village Board meeting. The situation is thus somewhat different from a typical Terry stop of an individual on the street. In the public setting of a Village Board meeting, the potential consequences of failing to apprehend an individual about to commit a crime are significantly enhanced, for any criminal activity is a threat not only to the order of the meeting, but also to the safety of all present. A stop that would not be justified on the street might therefore be reasonable in the setting and circumstances of a public meeting.

With that backdrop, the court determines that there was reasonable suspicion to seize Sandefur at the meeting, take him to the hallway, and search him. As explained above, the defendants had observed that Sandefur was carrying a concealed weapon, and they were not aware that he was a law enforcement officer. Moreover, Sandefur was very animated as he addressed the Board. The defendants were thus justified in attempting to ascertain whether Sandefur was legitimately carrying the weapon. Moreover, the search was minimally intrusive, for it lasted no longer than necessary to ascertain that Sandefur was a law enforcement officer and involved only as much force as necessary to secure Sandefur and prevent any potential harm to the attendees of the meeting. Within only a few minutes of the commencement of the search, Sandefur was free to leave.

A patdown that revealed a wad of money was not a valid plain feel because it should have been apparent that it was not a weapon. State v. Robinson, 2012 Ohio 2428, 2012 Ohio App. LEXIS 2137 (9th Dist. June 4, 2012):

[*P20] Here, the testimony is unclear as to whether the nature of the “wad of money” was apparent by touch during the Terry search, or whether the officer reasonably believed the “wad” in Robinson’s pocket to be a weapon. Moreover, the record does not indicate that Officer McConnell at any point subjectively believed that the “wad” in Robinson’s pocket was a weapon. Therefore, the seizure of the money from Robinson’s pockets is not justified by the Terry search or the plain feel doctrine. See Maumee v. Weisner, 87 Ohio St.3d 295, 297, 1999 Ohio 68, 720 N.E.2d 507 (1999) (“Generally, at a suppression hearing, the state bears the burden of proving that a warrantless search or seizure meets Fourth Amendment standards of reasonableness.”)

Plaintiff is a state prison inmate required under state law to give fingerprints for SORNA purposes, and he refused. He was placed in segregation for refusing, and a criminal investigation was opened by the State Police. He sued under § 1983, but he doesn’t state a claim for relief because the intrusion is minimal [not to mention that, as a prison inmate, his fingerprints are in multiple places and were likely taken when he got there]. Ford v. Curtin, 2012 U.S. Dist. LEXIS 79439 (W.D. Mich. June 8, 2012).*

The Week: The drone over your backyard: A guide / U.S. skies are being opened to police and private drones. Will it be the end of privacy?

Drones are coming to the U.S.?

They’re already here — and the drone era is just beginning. Predator drones — the same remote-controlled, camera-equipped aircraft used to hunt terrorists in Afghanistan and Pakistan — have been patrolling U.S. borders since 2005. Emergency responders have used smaller drones to search for missing persons and track forest fires, and police departments in Florida, Maryland, Texas, and Colorado are testing drones for surveillance and search-and-rescue missions. Last month, the Federal Aviation Administration, acting at the behest of Congress, relaxed the rules for deploying unmanned aerial vehicles. Police departments across the country can now fly drones weighing up to 25 pounds, as long as the aircraft stay within sight of the operator and fly no higher than 400 feet (so as not to get in the way of commercial aircraft). More rules easing restrictions on commercial drones are expected by 2015. By the end of the decade, the FAA expects 30,000 unmanned aerial vehicles — some as small as birds — to be peering down on American soil.

Why are they allowing more drones?
Law-enforcement officials love them. They believe the mobile, eye-in-the-sky technology will improve public safety at a low cost. With high-resolution cameras, drones can help police patrol large areas, spot runaway criminals, and track drug shipments. And since a small police drone with a camera can be purchased for around $50,000 (with some basic models costing as little as $300), they’re far cheaper than standard helicopters, which can cost $1 million or more.

BuzzFeed.com: The App That’s Taking On The New York Police; The ACLU’s new “Stop-and-Frisk Watch” app aims to help observers report and quantify stop-and-frisks. But can an app really change the police? by Rosie Gray & Matt Buchanan:

The New York branch of the ACLU has big dreams for the newest piece in its crusade against stop- and-frisk, the New York Police Department’s practice of stopping young men — nearly always men, and nearly always minorities — and frisking them on the street in public. The NYCLU’s “Stop and Frisk Watch,” a smartphone app designed to let observers record and report stop-and- frisks they see on the street, is a “free and innovative smart phone application that will empower New Yorkers to monitor police activity and hold the NYPD accountable,” per its description online.

The app is only on Android phones right now — with an iPhone version due later — in an effort to reach those who are regularly stopped-and- frisked. “We chose Android first because the demographic who gets stopped and frisked in New York City is the same demographic as who’s on Android — 86 percent of people stopped are black or Latino,” NYCLU Communications Director Jen Carnig said.

New Haven Independent: FBI Gets OK To Inspect Cop-Filmer’s Phone by Paul Bass:

Federal agents will prepare a “mirror image” of Jennifer Gondola’s iPhone4 to see what happened on a violent night in the Temple Street courtyard.

Gondola’s attorney Friday faxed signed consent forms from Gondola to both the FBI and the New Haven police department’s internal affairs division giving them permission to review a video she shot on her cellphone camera before Sgt. Chris Rubino demanded she turn it over. Gondola refused and stashed the cellphone in her bra. Rubino ordered a female officer, Nikki Curry, to snatch the cellphone from Gondola’s bra. Then Rubino pocketed the phone and arrested Gondola for “interfering.”

The attorney, Diane Polan, also charged city police with violating her client’s Constitutional rights by grabbing her phone from her bra.

Justin P. Murphy & Matthew A.S. Esworthy: The ESI Tsunami: A Comprehensive Discussion about Electronically Stored Information in Government Investigations and Criminal Cases, 27 Criminal Justice 31 (Spring 2012):

Dealing with electronically stored information (ESI), for clients, prosecutors, and defense attorneys, has steadily grown into a tsunami of cost and complexity—with little guidance provided by courts and none from the rules. Moreover, the paradigms developed in civil litigation to curb ESI discovery abuses are often not effective in the criminal system, due to the onesided nature of ESI burdens and demands in government investigations and criminal matters and the absence of costeffective methods sanctioned by courts to resolve criminal discovery disputes. The world of criminal e-discovery continues to evolve every day, particularly in the contexts of subpoena compliance, social media, Fourth Amendment issues, and postindictment discovery.

The article has helpful sections on:
• Subpoena Compliance,
• Social Media, the Internet, and Admissibility
• ESI and the Fourth Amendment
–CDT and the Ninth Circuit’s standards
–Increasing judicial skepticism
–Warrantless searches of cellular telephones
–Warrantless use of GPS tracking devices
• Postindictment Discovery

Volokh Conspiracy: Police Searching for Bank Robber Stop All Cars at Intersection, Handcuff Drivers, Search Cars by Eugene Volokh:

So reports ABC News:

Police in Aurora, Colo., searching for suspected bank robbers stopped every car at an intersection, handcuffed all the adults and searched the cars, one of which they believed was carrying the suspect.

Police said they had received what they called a “reliable” tip that the culprit in an armed robbery at a Wells Fargo bank committed earlier was stopped at the red light.

“We didn’t have a description, didn’t know race or gender or anything, so a split-second decision was made to stop all the cars at that intersection, and search for the armed robber,” Aurora police Officer Frank Fania told ABC News….

“Split-second decision”–code word for “we should get at least qualified immunity because of the hard decisions we have to make in the field protecting the public from bad people.” Good point. What about the 15 people handcuffed for up to 90 minutes who did nothing wrong? They had no description, just a place, so everybody in the place gets handcuffed. Good that they caught the right guy, but heavy handed nonetheless.

Defendant was stopped via a traffic offense that was completely ignored to focus on a drug investigation. Within two minutes they had consent, and it was found not voluntary. United States v. King, 2012 U.S. Dist. LEXIS 76988 (N.D. Miss. June 4, 2012):

The government argues that the defendant’s consent to search is valid because it was given within two minutes of the traffic stop. In looking at the surrounding circumstances, however, it appears that consent was not voluntarily given. As Agent Force requested, Hutchins attempted to make the stop appear normal. Yet, the record shows that the officers were not interested in any alleged traffic violation when they stopped King. They knew the defendant was a suspect in an ongoing drug investigation and the officers acted in furtherance of that investigation when they stopped the defendant. While Hutchins claims King could have left prior to the search, at no time did he or any of the other officers tell the defendant he was free to leave or that he had a right to refuse consent. Hutchins, two police officers, and a K-9 dog were present when King consented to the search. The defendant complied with the officer’s requests and told them where money was located inside his truck. Though the defendant was allegedly stopped for violating traffic laws, none of the officers issued a citation prior to asking to search the vehicle. Instead, they held the defendant at the traffic stop without advising him that he was suspected of criminal activity. Looking at these factors, it appears King’s consent was not the product of an essentially free and unconstrained choice. An objectively reasonable person in the defendant’s position would not have felt free to leave the scene or refuse consent.

Plaintiff stated a claim against officer for procuring an arrest warrant based on name alone when it turned out that there were more than one person in the geographical area with that name. “Basing probable cause solely on a similarity of name could create a substantial risk of error,” and it qualifies as reckless disregard. Parks v. Town of Leicester, 2012 U.S. Dist. LEXIS 78973 (D. Mass. June 7, 2012)*:

Nonetheless, it is troublesome that Fontaine, in concluding that plaintiff was the assailant, relied on the mere coincidence that the name that the victim provided matched the name in the database. The probability of multiple persons with the same name residing in a single geographic region–at least one as populous as Worcester County–is not negligible. Basing probable cause solely on a similarity of name could create a substantial risk of error. Arguably, an officer who pursued such a practice would be acting in reckless disregard of the truth.

Plaintiff alleged enough facts to stay in court that the police called to aid a repossession of a vehicle converted private action into state action. Morozov v. Howard County, 2012 U.S. Dist. LEXIS 77767 (D. Md. June 5, 2012).*

Nat Hentoff: FISA: Coming: Even more FBI warrantless searches?

On May 9, FBI Director Robert Mueller strongly recommended that Congress reauthorize the 2008 Foreign Intelligence Surveillance Act (FISA) Amendments Act by the end of the year. This law allows federal authorities, including the FBI, to conduct warrantless searches. These are beyond the Attorney General’s Guidelines for Domestic FBI Operations that let the FBI avoid going to a court to get a warrant to track Americans suspected of terrorist ties.

Relying on Edmond, United States v. Yousif, 308 F.3d 820 (8th Cir. 2002), and United States v. Prokupek, 632 F.3d 460 (8th Cir. 2011), the Tenth Circuit holds that stopping cars that pulled off at an exit by ruse checkpoint was not based on reasonable suspicion. Pulling off was a factor in RS, but more is required. United States v. Neff, 10-3336 (10th Cir. June 5, 2012):

We agree with the Eighth Circuit that a driver’s decision to use a rural highway exit after seeing drug checkpoint signs may serve as a valid, and indeed persuasive, factor in an officer’s reasonable suspicion analysis. See, e.g., Carpenter, 462 F.3d at 987; United States v. Klinginsmith, 25 F.3d 1507, 1510 n.1 (10th Cir. 1994) (listing as one valid factor that “the defendants took an exit which was the first exit after a narcotics check lane sign, and an exit that was seldom used”). But standing alone, it is insufficient to justify even a brief investigatory detention of a vehicle. Here, of course, the government points to a number of other factors that the trooper relied on in forming reasonable suspicion, including: (1) Neff’s car had a Shawnee County license plate but was driving in Wabaunsee County; (2) the exit was in a rural area without highway services such as restaurants or gas stations; (3) Neff pulled into a private driveway where he did not seem to have any reason to be; (4) Neff had a startled look on his face when he saw the trooper.

. . .

These facts, when taken together, do not fairly suggest that Neff was attempting to evade police. To be sure, an officer is “entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.” Arvizu, 534 U.S. at 276. But even considering the totality of the circumstances, Neff’s conduct conformed to the patterns of everyday travel. …

KnoxNews.com: Lawsuit filed over OR man’s warrantless cavity search by Bob Fowler:

An Oak Ridge man who says he was forced in June 2011 to submit to a digital rectal exam for suspected drugs — and no drugs were found — has filed a lawsuit in Anderson County Circuit Court.

Wesley Antwan Gulley’s legal action contends his constitutional rights were violated and he was subjected to false arrest and imprisonment, assault and battery and medical battery.

The lawsuit alleges Gulley was in shackles and reluctantly consented to the exam, but only after Dr. Michael A. LaPaglia ordered an injectable sedative and threatened to use it “in performing the digital rectal exam …”

The defendants used coercion and “undue influence” to force Gulley’s consent, and police officers didn’t have a warrant, it continues.

No drugs were found, and he was released after having been shackled for the ride to the hospital. It started because of a dog alert on a $20 bill in the car, which everyone in law enforcement should know by now (since it’s been public knowledge for over 25 years) that virtually all currency that goes through money counting machines has microscopic traces of cocaine.

I normally don’t include lawsuits because so many fail on qualified immunity or the merits of the Fourth Amendment claim. Based on the news article, this one states enough to get to trial. Forced warrantless digital exams are unreasonable even with probable cause, except for a convict in prison or a jail inmate, thanks to Florence.

h/t to a reader

Davis v. United States: Expanding the Good Faith Exception to the Exclusionary Rule to Objective Reliance on Binding Appellate Precedent Presents Too Many Threats to Constitutional Protections by Laura E. Collins, 81 Miss. L.J. Supra 163 (2012).

The Fourth Amendment in a World Without Privacy by Paul Ohm, in Mississippi Law Journal, Vol. 81, No. 5, p. 1309, 2012. Abstract on SSRN:

This Article explores the relationship between private and public surveillance. Every year, companies spend millions of dollars developing new services that track, store, and share the words, movements, and even the thoughts of their customers. Millions now own sophisticated tracking devices (smart phones) studded with sensors and always connected to the Internet. They have been coaxed to use these devices to access fun and valuable services to share more information, more of the time. Our country is rapidly becoming a surveillance society.

Meanwhile, the police can access the records that the surveillance society produces and stores with few impediments. Current Fourth Amendment doctrine — premised on the reasonable expectation of privacy test and elaborated through principles such as assumption of risk, knowing exposure, and general public use — places far fewer hurdles in front of the police when they use the fruits of somebody else’s surveillance than when they do the surveillance themselves. As the surveillance society expands, the police will learn to rely more on the products of private surveillance, and will shift their time, energy, and money away from traditional self-help policing, becoming passive consumers rather than active producers of surveillance. Private industry is destined to become the unwitting research and development arm of the FBI. If we continue to interpret the Fourth Amendment as we always have, we will find ourselves not only in a surveillance society, but also in a surveillance state.

If we believe that the Fourth Amendment can and should survive the coming reach of private surveillance, it is not enough to prescribe mild tweaks to the third-party doctrine. A more thorough reinvention of the Fourth Amendment is in order. We should rebuild the Fourth Amendment atop a foundation of something other than privacy, and this Article extends the work of other scholars who have convincingly suggested that the Fourth Amendment was originally intended and is better interpreted to ensure not privacy but liberty from undue government power.

TheHill.com: Keeping your cell phone from spying on you by Rep. Jason Chaffetz (R-Utah):

In the age of Onstar, smartphones and GPS tracking devices, we are more effective than ever at tracking people. But the line between a convenient tool and an unreasonable search has become increasingly nebulous.

No one wants their every move surreptitiously monitored without permission – whether it be law enforcement, a spurned partner, or a nefarious stranger keeping tabs on us. Given the legal ambiguities associated with modern technology, we must update and clarify the law.

Although the Supreme Court ruled attaching a GPS device to a person’s car without their knowledge constitutes a search under the Fourth Amendment, there are no rules governing the use of geolocation information obtained from other types of devices.

Reichle v. Howards, 11–262 (June 4, 2012). SCOTUSBlog here. From the Syllabus:

Petitioners are entitled to qualified immunity because, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Pp. 5−12.

(a) Courts may grant qualified immunity on the ground that a purported right was not clearly established” by prior case law. Pearson v. Callahan, 555 U. S. 223, 236. To be clearly established, a right must be sufficiently clear “that every ‘reasonable official would [have understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U. S. ___, ___. Pp. 5−6.

(b) The “clearly established” standard is not satisfied here. This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest. P. 6.

(c) At that time, Hartman’s impact on the Tenth Circuit’s precedent was far from clear. Although Hartman’s facts involved only a retaliatory prosecution, reasonable law enforcement officers could have questioned whether its rule also applied to arrests. First, Hartman was decided against a legal backdrop that treated retaliatory arrest claims and retaliatory prosecution claims similarly. It resolved a Circuit split concerning the impact of probable cause on retaliatory prosecution claims, but some of the conflicting cases involved both retaliatory prosecution and retaliatory arrest claims and made no distinction between the two when considering the relevance of probable cause. Second, a reasonable official could have interpreted Hartman’s rationale to apply to retaliatory arrests. Like in retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually all retaliatory arrest cases, and the causal link between the defendant’s alleged retaliatory animus and the plaintiff’s injury may be tenuous. Finally, decisions from other Circuits in the wake of Hartman support the conclusion that, for qualified immunity purposes, it was at least arguable at the time of Howards’ arrest that Hartman extended to retaliatory arrests. Pp. 7−12.

Merely being in possession of a firearm is not a reason for a stop-and-frisk–-an objective risk of potentially using it criminally is. Here, defendant was acting evasively when he saw the police and tried to get into a house he was not allowed in. United States v. Derrick, 2012 U.S. Dist. LEXIS 76540 (E.D. Pa. May 31, 2012):

However, as some individuals are legally permitted to carry guns pursuant to the Second Amendment of the Constitution, a reasonable suspicion that an individual is carrying a gun, without more, is not evidence of criminal activity afoot. Therefore, the tip alone was not sufficient to support an investigatory stop and the Court must examine whether the stop was supported by other factors.

Defendant’s stop on his own porch by a homicide detective for a traffic offense was without reasonable suspicion. Defendant’s car was not stopped, and defendant got out and went to his house, and the officer pulled up and ran behind him yelling “stop” showing his badge and then there was a “tangle” on the porch with uniformed officers, too. The stop was without reasonable suspicion, and the gun found on him is suppressed. United States v. Walker, 2012 U.S. Dist. LEXIS 76781 (S.D. Ohio June 4, 2012).*

NYTimes.com: Bloomberg Backs Plan to Limit Arrests for Marijuana by Thomas Kaplan:

Mayor Michael R. Bloomberg said on Monday that he would support a proposal by Gov. Andrew M. Cuomo to significantly curb the number of people who could be arrested for marijuana possession as a result of police stops.

Cert. grant today: Bailey v. United States, SCOTUSBlog here, opinion below here.

Issue: Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.