Rodney Balko on HuffPo: Under Asset Forfeiture Law, Wisconsin Cops Confiscate Families’ Bail Money (Wisconsin has no bailbondsmen, so cash, check, or credit card required):

When the Brown County, Wis., Drug Task Force arrested her son Joel last February, Beverly Greer started piecing together his bail.

She used part of her disability payment and her tax return. Joel Greer’s wife also chipped in, as did his brother and two sisters. On Feb. 29, a judge set Greer’s bail at $7,500, and his mother called the Brown County jail to see where and how she could get him out. “The police specifically told us to bring cash,” Greer says. “Not a cashier’s check or a credit card. They said cash.”

So Greer and her family visited a series of ATMs, and on March 1, she brought the money to the jail, thinking she’d be taking Joel Greer home. But she left without her money, or her son.

A drug dog alerted on the cash, which we all know means nothing.

Steven Kessler, a New York-based forfeiture attorney and the author of the legal treatise “Civil and Criminal Forfeiture: Federal and State Practice,” said he had never heard of simply confiscating bail. “It’s abhorrent. You can reject bail if you suspect the money is dirty. But you don’t simply take it and hand it over to the police department.”

Virginia attorney David Smith, who also wrote a book on forfeiture, says he has seen other cases in which authorities have confiscated bail money, but adds, “No courts have ordered forfeiture simply on the basis of a dog alert. There has to be other evidence.”

Forfeitures like these may not hold up in court, but failed cases wouldn’t necessarily discourage police departments from continuing the practice. If the defendant never challenges the seizure, the department generates revenue. If the defendant challenges and wins, the department loses little.

NYTimes.com: Kelly Reacts After Stop-and-Frisk Ruling:

A day after a federal judge issued a ruling fiercely criticizing the New York Police Department’s stop-and-frisk tactics, Police Commissioner Raymond W. Kelly unveiled new measures on Thursday intended to reduce the frequency of illegitimate stops.

The measures, which were outlined in a three-page letter sent to the City Council speaker, Christine C. Quinn, include a re-emphasis on an existing departmental order banning racial profiling. The order is to be incorporated in routine training sessions for officers beginning next month.

The government disclosed GPS surveillance occurred, and the tracking information was not kept. On defendant’s motion for discovery of GPS information to frame a motion to suppress the tracking, it is granted in part and denied in part. As to application of the good faith exception under Davis, the request is premature and denied without prejudice. United States v. Rose, 2012 U.S. Dist. LEXIS 68095 (D. Mass. May 16, 2012):

Upon consideration of Andrews’ stated need for the information, the Court finds that Andrews has met his burden of proof to the extent that some of the requested information may help him to delineate the scope of a possible Fourth Amendment violation. However, given the government’s interest in protecting the confidentiality of its surveillance techniques, the Court will not order the information produced in the form requested by Andrews. Rather, the government shall produce an affidavit by an agent knowledgeable about the use of GPS tracking in the investigation. The affidavit should include information regarding: (1) the tracking radius of the GPS devices; and (2) how the devices were used in conjunction with surveillance in this investigation. Andrews’ remaining requests are denied.

Delay in seeking a search warrant for a computer was not unreasonable where the delay was caused by the government thinking that defendant was going to cooperate. United States v. Armstrong, 2012 U.S. Dist. LEXIS 68429 (M.D. Pa. May 15, 2012)*:

The fact that an earlier application was presented to a Magistrate Judge is not dispositive, particularly because the Magistrate Judge was concerned about the timing of the warrant in light of the imminent trial. Although the timing of the request for authorization, almost one year after the initial seizure of the laptops, is of concern, I am willing to accept the Government’s representation that it did not immediately request an authorization to search the computers because it believed Armstrong intended to cooperate with the Government and plead guilty.

Where body language allegedly belied the defendant’s denial he had drugs in the car, a frisk was reasonable. United States v. Acosta, 2012 U.S. Dist. LEXIS 67551 (W.D. Mo. April 27, 2012).*

Defendant’s girlfriend consented to a search of their place, but defendant was present and objected under Randolph, except the officer’s didn’t hear him during the noise of the arrest (and neither did she). Since the officers were, at worst, just negligent, the court would not apply the exclusionary rule since the Second Circuit’s rule is that Herring may apply even when not attenuated. United States v. Smith, 2012 U.S. Dist. LEXIS 68054 (S.D. N.Y. May 15, 2012):

In this case, the benefits of deterrence are marginal. As the Herring Court stated, “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” 555 U.S. at 144. The Court has credited the officers’ testimony that they did not deliberately disregard Smith’s refusal to consent to a search, but rather did not hear Smith make a statement to that effect, (Tr. 77:7-78:3.) Their failure to hear him constituted, at the most, an isolated instance of negligence; there was no evidence that their conduct rose to the level of deliberate or reckless conduct, or gross, recurring, or systemic negligence. The evidence suggested only that, in the midst of the noise and confusion that ensued during the arrest, the officers simply did not hear Smith, just as Smith’s girlfriend did not hear him. On those facts, the officers reasonably believed that they were authorized to search the Apartment after obtaining the consent of Smith’s girlfriend.

Smith argues that exclusion of the evidence has deterrent value insofar as suppression would “encourage[e] arresting officers to pay attention to a defendant’s assertion of rights.” (Def.’s Supplemental Mem. at 6.) Although suppression may hypothetically have this effect, such deterrence is insufficient to warrant application of the exclusionary rule: “Even assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” United States v. Leon, 468 U.S. 897, 919, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). As noted, in light of all the circumstances, the officers’ reliance on Smith’s girlfriend’s consent was objectively reasonable.

In a search of business’s desks and computers, the individual defendants had standing under Mancusi v. DeForte. Also, one password protecting her computer supported standing as to her computer. The warrant limited seizure of records to 2007, and the government’s seizure of records before that violated the terms of the warrant, and the motion to suppress is granted to that. United States v. Shellrock, 2012 U.S. Dist. LEXIS 68962 (D. N.J. May 17, 2012):

The Court finds both Meloney and Bryan have standing to challenge the search of the Harbor House premises. First, Bryan is a co-owner of Harbor House and Defendant Meloney worked directly for Bryan and was his personal assistant. As co-owner of the corporation, Bryan had an ownership and possessory interest in Meloney’s workplace computer and as Meloney’s direct supervisor, he had a reasonable expectation of privacy in the work she completed on the computer at his direction. Therefore, the court finds that Defendant Bryan has standing to challenge the search of Harbor House’s premises.

Defendant Meloney also has standing to challenge the search of her computer. Though Meloney did not have a private office and her workspace was in a common area, is not conclusive of whether Meloney had an expectation of privacy in this area. The area searched was Meloney’s personal desk and workspace where she worked for more than ten years. She did not share this desk, computer, and workspace with other employees. Other employees did not use her computer or her desk to complete their work. Meloney also kept personal items on her desk in her workspace.

The Supreme Court has clearly held that even where a person’s workspace is located in a room shared with others, the person’s expectation of privacy in their own desk and files is not diminished. See Mancusi, 392 U.S. at 369 (holding that a union officer has a reasonable expectation of privacy in his workspace which was located in one large room which was shared with several other union officials and therefore had standing to successfully challenge the warrantless search therein). Here, the court is satisfied that the area searched was Meloney’s personal workspace which she did not share with other employees and was used as her workspace on a regular basis for more than ten years.

In addition, Meloney’s computer was password protected. While her password was commonly known at the work place among her fellow employees, it was not known to the public and could not be accessed by anyone outside this small, closely held corporation. This is sufficient to show her intent to exclude members of the public and maintain privacy in the documents kept on her computer, an expectation shared with the business owner. The electronic documents were retrieved from Meloney’s “My Documents” folder and it is unclear from the record whether this folder was part of the network or an independent folder on Meloney’s desktop. However, these documents were found on Meloney’s computer and there is no evidence that these documents were found in any of the other computers searched by the government. This leads to the conclusion that the “My Documents” folder was not part of the general corporate network. While Meloney’s standing is a closer question than Bryan’s, the court is satisfied that society would recognize that Meloney has a reasonable expectation of privacy in her personal workspace and that subjectively, Meloney intended to keep her workspace private as she did not share or allow others to use her desk or computer.

Therefore, both Meloney and Bryan have standing to challenge the execution of the search warrant at Harbor House.

Tracking a cell phone by court order was not a violation of the Fourth Amendment under Jones because there was no trespass on defendant’s property. (Defendant had the telephone that was the target of a tracking warrant, and that was sufficient to give him standing. His name was even on the tracking order issued by the Florida state court.) United States v. Sereme, 2012 U.S. Dist. LEXIS 68202 (M.D. Fla. March 26, 2012):

With regard to the merits, the Defendant argues that the interception of his movements by the use of a GPS device constituted a warrantless search in violation of the Fourth Amendment and therefore any items of evidence found at the traffic stop must be suppressed. Here, the Government had obtained an order from a state court judge which instructed Sprint to provide the location of the cell phone in question at any time for a period of sixty days. There was no device physically placed on the vehicle by law enforcement. Rather, the monitoring was only done through the cellular telephone. This distinction is important as the Supreme Court recently held in United States v. Jones, that the Government’s installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle’s movements without a valid warrant was a search in violation of Jones’ rights. United States v. Jones, 132 S. Ct. 945 (2012). Sereme relies on Jones, contending that the GPS evidence should be suppressed as five members of the Court in a concurring opinion authored by Justice Alito, expressed the view that long-term GPS monitoring of an individual by law enforcement impinges on expectations of privacy, without regard to the specific technology employed. Id. at 954, 964. “But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car, for a very long period.” Id. at 964. The concurring opinion was not limited to the attachment of physical devices to monitor movements.

In this case, there was no physical trespass onto Sereme’s property. There was no physical device attached to the car in which he was a passenger or any other piece of his property. Based upon this Court’s reading, the Jones opinion does nothing to preclude the Government’s monitoring of individuals through the use of cell site technology. As the opinion stated, it resolved only “whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.” Jones, 132 S. Ct. at 948. The Supreme Court has not answered the broader question presented here which is whether the Government’s monitoring of an individual’s movements through their cell phone for a certain period of time constitutes a “search” within the meaning of the Fourth Amendment, and more importantly whether that “search” requires a warrant issued upon probable cause of some other level of suspicion, such as the traditional reasonable suspicion.

In this case, law enforcement monitored and tracked the movements of the target telephone that was believed to be used by Sereme for a period of 12 days after law enforcement had received an Order allowing them to do so in accordance with Fla. Stat. § 934.32. Thus, the initial stop of the vehicle was not unlawful on these grounds.

More from the political party of small government: Ohio Republicans AGAIN Try to Pass Unconstitutional Laws. This Time: Welfare Drug Testing:

Ohio Senate Republicans have proposed a three-county, two-year program where welfare applicants who are suspected of having a drug problem would have to submit to and pay for drug tests before receiving benefits. The Dispatch notes that Ohio is not unique: the “move appears to be part of a renewed national GOP movement to require drug testing for welfare recipients. … revised laws have been introduced this session in about 30 states, and lawmakers in Georgia, Utah, Oklahoma, Tennessee and Louisiana have moved legislation in recent weeks.”

. ..

The proposal to drug test welfare recipients is just the latest effort of Republican legislators to import ideological ideas from other states. But at least by bringing in ideas in from other states, we don’t have to guess that the proposals are unconstitutional. We know. We know because judges have already ruled that these efforts in other states are unconstitutional.

Trying to make money for civil rights lawyers when budgets are tight?

Judge Napolitano: Shoot down a drone, become an American hero:

Fox News commentator Judge Andrew Napolitano has found a novel approach to handling the whole drone surveillance dilemma that has Americans worried that the government will soon watch their every move from the sky.

Speaking out against the future of aerial eavesdropping in America, Judge Napolitano said on Fox on Tuesday, “The first American patriot that shoots down one of these drones that comes too close to his children in his backyard will be an American hero.”

[He’s not a judge. He resigned to make more money as a Fox flack. Kenneth Starr insisted that his minions continually refer to him as Judge, like it was a title of nobility, as he did with Webb Hubbell, who was a judge for all of four months by appointment. You resign, judge goes away with the job. And, isn’t shooting a gun into the air from one’s backyard kind of a bad idea?]

After defendant was arrested for touching her children, the woman of the house delivered two laptops used by the entire family to the police to look for evidence on the computers. She had apparent authority to consent to a search of the computers because all that the police knew was that the computers were used by everybody in the house. State v. Rice, 2012 Ohio 2174, 2012 Ohio App. LEXIS 1909 (9th Dist. May 16, 2012).*

The car had no trunk, and a dog alert to the interior was to the whole interior. The state proved that the dog was a well trained dog. State v. Duran, 2012 Ohio 2114, 2012 Ohio App. LEXIS 1857 (9th Dist. May 14, 2012).*

Defendant was stopped with reasonable suspicion based on a detailed call from a citizen informant who called to report an erratic driver in front of him. He gave his first name and stayed on the phone until police caught up. State v. Bunn, 2012 Ohio 2151, 2012 Ohio App. LEXIS 1868 (12th Dist. May 14, 2012).*

The vehicle defendant was a passenger in was stopped for a lane change violation, and the driver said that he had drugs. On the floor in front of him was paraphernalia in plain view. Coupled with his furtive movements, a search was reasonable. State v. Jackson, 2012 Ohio 2123, 2012 Ohio App. LEXIS 1861 (11th Dist. May 14, 2012).*

NYTimes Editorial: Reform Stop-and-Frisk:

Judge Shira Scheindlin of Federal District Court spoke up for the constitutional rights of blacks and Hispanics on Wednesday by granting class-action status to a lawsuit that accuses the New York Police Department of using race as the basis for stopping and frisking hundreds of thousands of citizens a year.

The decision opens the door to potential claims by an enormous number of people who may have been illegally stopped, and any remedy would be applied citywide. In a fierce defense of the Fourth Amendment, which guarantees freedom from unreasonable search and seizure, Judge Scheindlin was profoundly critical of the police program. The city’s arguments, she wrote, “do not withstand the overwhelming evidence that there, in fact, exists a centralized stop-and-frisk program that has led to thousands of unlawful stops.” She allowed the class-action status because “the vast majority of New Yorkers who are unlawfully stopped will never bring suit to vindicate their rights.”

Officers responded to a domestic dispute where the defendant felon was alleged to have used a gun in an assault on the other in the house. He came to the door to talk to the officers, but the gun was in the couch. That was exigency enough to enter where the officers feared he might break for the gun. United States v. Ward, 2012 U.S. Dist. LEXIS 66824 (W.D. Mo. April 16, 2012).*

Probable cause and exigent circumstances supported the entry into the defendant’s apartment. While the police were outside, they heard voices of the people they knew were in there. Defendant was wanted but not yet found. United States v. Ashbourne, 2012 U.S. Dist. LEXIS 66985 (E.D. Mich. May 14, 2012).*

The USMJ found the traffic stop and detention was justified by reasonable suspicion. On review, the USDJ finds that the officers did not create exigent circumstances–their investigation was appropriate. United States v. Dunn, 2012 U.S. Dist. LEXIS 66427 (W.D. Tenn. May 13, 2012), adopting 2012 U.S. Dist. LEXIS 66977 (W.D. Tenn. March 27, 2012).*

Defendant first failed to show that he had standing to challenge a search of open fields asserted to be curtilage. Then, it was open fields, and, alternatively, he consented. United States v. Wilburn, 2012 U.S. Dist. LEXIS 66300 (E.D. Ky. March 5, 2012)*:

The Court is simply unable to assess whether Defendant had a reasonable expectation of privacy in the place where the propane tank was discovered. Significantly, no evidence was presented to establish ownership or other interest in the land where the propane tank was located. As discussed above, the “defendant claiming that a search violated his Fourth Amendment rights has the burden of demonstrating that he had a legitimate expectation of privacy in the place that was searched.” Mastromatteo, 538 F.3d at 544 (quoting Talley, 275 F.3d at 563. Here, Defendant did not present any evidence regarding this issue and has failed to meet his burden. Thus, the Court concludes that, although Defendant has standing to challenge the search of his home, he lacks standing to challenge the search of the property where the propane tank was located. Nevertheless, to ensure a complete analysis, the Court will assume for purposes of this Recommended Disposition that Defendant has standing to challenge both searches.

Defendant was driving through hotel parking lots apparently casing cars for break-in when he was stopped. It was a high crime area for break-ins, and the police were looking. “The necessary suspicion for an investigative Terry stop is not a high bar.” United States v. Stacks, 2012 U.S. Dist. LEXIS 67422 (W.D. N.C. May 14, 2012).*

Defendant’s failure to identify a document that witnesses to a consent search were not examined about does not justify 2255 relief. Based on the findings at the suppression hearing, it seems highly unlikely this document would change the outcome anyway. Jones v. United States, 2012 U.S. Dist. LEXIS 66194 (M.D. Tenn. May 11, 2012).*

Warrant for defendant’s arrest justified police entry into the house to arrest him, and then do a protective sweep after a gun was seen. United States v. Tran, 2012 U.S. Dist. LEXIS 67238 (N.D. Iowa May 15, 2012).*

Defendant jumped out a hotel room window in flight from the police, and this was an abandonment of the room. He also abandoned a pair of socks on the roof the hotel. State v. Jackson, 304 Conn. 383, 40 A.3d 290 (2012):

The defendant had no reasonable expectation of privacy in the hotel room or in the personal effects that he left there after he jumped out of the hotel window, and even if he had not manifested a subjective intent to abandon the hotel room, the New York City police officers’ initial entry into the hotel room was justified under the emergency exception to the warrant requirement because they reasonably could have believed that there might be other persons in the hotel room who were injured or who needed assistance and, therefore, they were not required to obtain a search warrant before seizing the defendant’s clothes for safekeeping pursuant to their community caretaking function; furthermore, the mere transfer of the items from the New York City police to the New Haven police did not violate the defendant’s fourth amendment rights, the transfer having involved no additional intrusion into the defendant’s privacy and the subsequent forensic testing of the defendant’s pants and belt having been performed pursuant to a search warrant.

The trial court erred in finding reasonable suspicion that defendant probationer was involved in criminal activity to justify the search of his room where he lived with his parents. The facts were as consistent with innocent activity as criminal activity, and it was no more than a hunch. State v. Karns, 2011 Ohio 6109, 196 Ohio App. 3d 731, 965 N.E.2d 352 (5th Dist. 2011).*

During a traffic stop, the “overwhelming odor of air freshener” and shaking hands was reasonable suspicion of drug trafficking. United States v. Gandy, 2011 U.S. Dist. LEXIS 135938 (E.D. Tex. October 27, 2011).*

Defendant was a passenger in a vehicle and lacked standing to challenge its search, but not its stop. The car matched the description of a car involved in a carjacking, and that was reasonable suspicion for a stop. State v. Davis, 2010 Tenn. Crim. App. LEXIS 1105 (April 19, 2010).*

Seeing a firearm on defendant’s person justified a patdown. While Florida is a concealed carry state, the officer does not have to exclude the possibility of a permit before the frisk. Mackey v. State, 83 So. 3d 942 (Fla. 3d DCA 2012):

Mackey contends the arresting officer had no reasonable suspicion to detain him for carrying a concealed firearm. He begins by noting that it is generally not illegal to possess a firearm in Florida. Mackey then argues in his brief, relying again upon Regalado, that “since, under Florida law, carrying a concealed firearm is illegal only if the individual does not have a permit and since the officer had no information suggesting that defendant did not have a permit, the officer lacked reasonable suspicion to stop him for carrying a concealed firearm.” Whether, as a general proposition, mere possession of a firearm is not illegal in Florida, it is beside the point. Mackey was not observed in mere possession of a firearm; rather, he was observed in possession of a concealed firearm, and the officer testified that he observed a “piece of the handle sticking out” of Mackey’s pocket, enabling the officer to identify it as a firearm. It is the concealment of the firearm, not merely its possession, which rendered Mackey’s conduct illegal, and authorized the officer’s actions in this case. Moreover, Mackey’s argument necessarily overlooks the difference between an essential element of the crime and an exception, or affirmative defense, to the crime.

Patdown of passenger was without reasonable suspicion to believe he was armed. Search suppressed. Westmoreland v. State, 965 N.E.2d 163 (Ind. App. 2012).

A minor delay in the length of the stop did not make it unreasonable. The conversation while waiting did not extend it. United States v. Ghoston, 2012 U.S. Dist. LEXIS 55526 (W.D. Tenn. April 20, 2012)*:

So long as the questions do not extend the time of the stop, “an officer may ask unrelated questions to his heart’s content, provided he does so during the supposedly dead time while he or another officer is completing a task related to the traffic violation.” Everett, 601 F.3d at 492. Agent James asked questions while Trooper Fuller verified the licenses and conducted background checks. This was reasonable under Everett.

The affidavit for the search warrant for defendant’s blood for evidence of drug use in a DUI case was completely deficient and speculative. Accordingly, the good faith exception would not apply either. People v. Miranda, 2012 IL App (2d) 100769, 964 N.E.2d 1241 (2012):

[**11] Although this test is highly deferential, we must conclude that McLean’s affidavit did not provide a substantial basis to find probable cause that testing defendant’s urine would reveal the presence of any controlled substance. McLean’s affidavit said next to nothing about controlled substances, and what scant mention it did make was unsupported by facts. McLean referred to finding physical evidence of alcohol consumption (the open Heineken bottles), but not to finding any physical evidence of drug use. He stated that he smelled alcohol on defendant’s breath, observed standard indicia of alcohol intoxication, learned from defendant that he had consumed alcohol, and administered field sobriety tests that defendant failed. As a result of all of the foregoing, McLean “believed that [defendant] was under the influence of alcohol” (emphasis added) and arrested him for DUI. Conspicuously absent from McLean’s detailed factual recitation was any reference to controlled substances or any evidence that defendant had used them. McLean did not state that any of these facts made him suspect that defendant had used controlled substances.

The evidence showed that the defendant only used the shed on a friend’s property when he was there visiting during the day, and then only to leave the bicycle he rode there, the backpack he wore, and his coat. Otherwise, nothing was kept there. That was not enough to create “standing” in the premises. People v. Nichols, 2012 IL App (2d) 100028, 964 N.E.2d 1190 (2012).*

The trial court’s finding that state failed to show exigent circumstances to dispense with a warrant for blood is supported by the record. The officer was at the scene within a minute of the occurrence and had three hours to get the blood by statute. State v. Rawnsley, 2011 Ohio 5696, 2011 Ohio App. LEXIS 4662 (2d Dist. November 4, 2011).*

Defendant contended that the person granting consent was deaf and mentally retarded, but the trial court as finder of fact disagreed finding that she could hear without hearing aids and she was not retarded at all because she “demonstrated ample mental sophistication on the witness stand. Therefore, this [c]ourt determined that Ms. Cape was mentally and physically capable of giving legal consent to search.” Commonwealth v. Reese, 2011 PA Super 235, 31 A.3d 708 (2011).*

Because the officer had reasonable suspicion for the PBT it was reasonable and separate consent was not required. State v. Therrien, 2011 VT 120, 38 A.3d 1129 (2011).*

Defendant was stopped at the Omaha bus terminal apparently because he showed an interest in what the police were doing with bags on the bus. [Note: Every criminal defense lawyer does too. Does that give reasonable suspicion? Not here.] The government conceded there was no reasonable suspicion, but it argued that defendant consented. The District Court’s finding of no consent was supported by the evidence, and lifting defendant’s pant leg was without reasonable suspicion. Meth was found and suppressed. United States v. Aquino, 674 F.3d 918 (8th Cir. 2012)*:

The government contends the dispositive issue in this case is whether Aquino’s compliance with Lutter’s request to pull the bottom portion of his pant leg tight against his body was a consensual act which gave rise to reasonable suspicion when Lutter noticed the concealed bulge, in turn justifying a subsequent investigatory detention. We disagree. This case turns not on Aquino’s last act before being handcuffed, but rather Lutter’s first act after placing Aquino in handcuffs, which was to lift Aquino’s pant leg to reveal the concealed bulge. Under the circumstances involved in this case, Lutter violated the Fourth Amendment when he searched underneath an article of Aquino’s clothing without his consent and without probable cause to do so, instead of performing a pat down to confirm whether the concealed bulge was a weapon.