Officers found defendant in an apartment being searched under a search warrant, and they had probable cause as to him on the premises. This was unlike the unwitting bar patron in Ybarra. A patdown of defendant produced car keys, and keys were subject to the warrant. It was immediately apparent what they were by feel, unlike Dickerson. United States v. Cowan, 674 F.3d 947 (8th Cir. 2012):

Cowan’s presence in Booth’s apartment, unlike the patron in the public tavern in Ybarra and more like the passenger in the private car in Pringle or the hotel room occupant in Romero, could lead a reasonable officer “to infer [Cowan was part of] a common enterprise” among the people in the apartment. Pringle, 540 U.S. at 373. Although an apartment “is a larger and more multipurpose space,” Romero, 452 F.3d at 618 n.2, than the hotel room in Romero, Detective Canas had additional reason to suspect Cowan was involved in the drug trafficking activity. After breaking down the exterior door to the building and before entering the apartment, the officers saw someone running inside, which reasonably suggested people present in the apartment were trying to conceal evidence of drug trafficking activity. When Cowan stated he was from Chicago—the reputed source of the crack cocaine used in the suspected drug trafficking operation occurring in the apartment—Cowan gave Detective Canas particularized suspicion that Cowan himself was involved in the drug trafficking. The present case is further distinguishable from Ybarra because Detective Canas frisked Cowan’s outer clothing pursuant to Terry, and the search of Ybarra was not a valid Terry frisk. See Ybarra, 444 U.S. at 92-93. Detective Canas did not violate Cowan’s Fourth Amendment right to be free from unreasonable searches and seizures by patting down Cowan’s pockets and seizing the keys.

In a high crime area, officers observed defendant dropping a cell phone and car keys into bush. That was reasonable suspicion. They did not violate the Fourth Amendment by pressing the key fob to find the car. United States v. Cowan, 674 F.3d 947 (8th Cir. 2012). United States v. Figures, 2012 U.S. Dist. LEXIS 55641 (D. Neb. April 20, 2012).*

Motion for return of property under Rule 41(g) was denied without prejudice where the claimant likely had no property interest in the place where it was seized. He needed to show more and still can. United States v. Return of Property of Fawcett, 2012 U.S. Dist. LEXIS 55620 (N.D. Ohio April 20, 2012)*:

In this matter, Mr. Fawcett has not yet shown a sufficient property interest in the jewelry listed in his Declaration. The Defendant avers the jewelry, consisting largely of vintage watches, was taken from a residence in which, at the time of the exercise of the warrant, Mr. Fawcett no longer had any property interest and in which he no longer resided. Mr. Fawcett has yet to offer any evidence to demonstrate his lawful possession of the jewelry listed in his Declaration. Further, Mr. Fawcett has failed to specify with any certainty the items he seeks to have returned. Instead, the description offered in his Declaration is generic by type (watch), and brand (Rolex), and general year (vintage 1978).

Officers followed tracks in the snow from the scene of a burglary to defendant’s house, and defendant’s father consented to a search of computers in the house that were likely stolen. His father, a retired police officer, appreciated the significance of what was going on and wanted the computers gone. He had apparent authority to consent to a search of these computers. United States v. Clutter, 674 F.3d 980 (8th Cir. 2012):

When determining whether a third party exercised actual or apparent common authority over the contents of a computer, courts typically examine several factors — whether the consenting third party in fact used the computer, whether it was located in a common area accessible to other occupants of the premises, and — often most importantly — whether the defendant’s files were password protected. See United States v. Stanley, 653 F.3d 946, 950-51 (9th Cir. 2011); United States v. Stabile, 633 F.3d 219, 232-33 (3d Cir.), cert. denied, 132 S. Ct. 399 (2011); Andrus, 483 F.3d at 719-20; United States v. Buckner, 473 F.3d 551, 554-55 (4th Cir.), cert. denied, 550 U.S. 913 (2007); United States v. Morgan, 435 F.3d 660, 663-64 (6th Cir. 2006). Clutter argues it was error to deny his motion to suppress because the government presented no evidence “that Joel Clutter used or had electronic access to the computers.”

The primary flaw in this argument is that the only Fourth Amendment issue with any factual support is whether the three computers were validly seized at the Clutter home on January 22. There is no evidence that the officers searched the computers before obtaining an unchallenged warrant authorizing the search. The distinction, though often overlooked, is important: ….

[Maybe intentionally] Overlooked is a more fundamental question: Is there a reasonable expectation of privacy in stolen computers?

Defendant had a driver’s license in his possession, but he was arrested for a suspended license, for which there were several possible reasons. It was never shown that there was not a valid warrant. If there was no valid warrant, Herring would apply. State v. Brock, 2012 La. App. LEXIS 248 (La. App. 2d Cir. March 7, 2012)*:

Based on the evidence presented, there was no showing that the arresting officers acted with reckless disregard of the constitutional requirements or were grossly negligent. Thus, the record supports the district court’s finding that even if the warrant was not valid at the time, the deputies acted in an objectively reasonable manner in relying on the information of an active warrant to arrest the defendant. Consequently, as held in Herring, supra, the exclusionary rule is not applicable under such circumstances. Therefore, we cannot say the district court erred in denying the motion to suppress the evidence seized in the search incident to that arrest. The assignment of error lacks merit.

Officers suspected defendant for a robbery and surveilled his house after they got a line on where he lived. They saw him coming and going and then confronted him, and he produced a key and consented to the search. Nshaka v. State, 82 So. 3d 174 (Fla. 4th DCA 2012).*

GPS surveillance in the Ninth Circuit was under binding precedent before Jones, so Davis applies. United States v. Fata, 2012 U.S. Dist. LEXIS 66759 (D. Nev. March 15, 2012):

Consequently, even assuming non-compliance with ATF regulations, the Court finds that use of the GPS device in this case was lawful under Pineda-Moreno at the time it was installed and monitored.

Further, consistent with the Supreme Court’s decision in Davis v. United States, 131 S. Ct. 2419 (2011), the Court finds that the purpose of the exclusionary rule would not be served in this instance by suppression based solely on placement of the GPS device because placement of the GPS device and the subsequent monitoring was done in reasonable reliance on then binding appellate precedent as announced in Pineda-Moreno.

As a result of the Court’s finding and the decision in Davis, even though the installation and use of the GPS device to assist agents in initiating their surveillance on May 14, 2011 through May 15, 2011 did violate Defendants’ Fourth Amendment rights, none of the information obtained as a result thereof is subject to suppression. In particular, the surveillance evidence obtained by agents on May 15, 2011, when they observed and overheard conversations during the purchases of firearms at the Gun Store and the gun show will not be suppressed.

Officers responded to a one vehicle accident and found an Escalade on its side in the road. The vehicle had to be towed, so the inventory was lawful. Besides that, the officer saw a gun in the car and one of the occupants dropped a baggy of drugs when the police showed up. United States v. Brown, 2012 U.S. Dist. LEXIS 66880 (S.D. Ohio May 14, 2012).*

The affidavit for the search warrant here was “bare-boned” and “slim” but barely sufficient to show probable cause and have the benefit of the good faith exception. United States v. McIrby, 2012 U.S. Dist. LEXIS 66946 (S.D. Ala. May 14, 2012)*:

Analyzing the affidavit under the totality of the circumstances, the court finds that the information contained in the warrant, although slim, is sufficient to establish probable cause. The affidavit does not offer evidence of the informant’s history of reliability. However, while such information is relevant to a probable cause determination, it is not required to be set forth in the affidavit if there is other evidence under the totality of the circumstances to support a probable cause finding.

A UPS package from Mexico to Florida was inspected at the UPS de facto border checkpoint at its Louisville hub, and it was found to have cocaine. A controlled delivery was arranged for the Florida address with an anticipatory search warrant. The package was equipped with a beeper to alert to when it was opened and a GPS. First, the defendant’s name was nowhere on the package as shipper or recipient, so he lacked “standing.” Second, the package was lawfully opened under the border exception. Third, the monitoring of the packages with the beeper and GPS occurred while the vehicle was in a public place. Finally, the officers had probable cause to stop and search the car. United States v. Arrendondo, 2012 U.S. Dist. LEXIS 66919 (M.D. Fla. May 14, 2012):

The facts of this case are more closely aligned with Karo and United States v. Knotts, 460 U.S. 276 (1983) than with Jones. In Karo, the government came into physical contact with the container before it belonged to the defendant. “The transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo’s privacy.” Jones, 132 S. Ct. at 952 (citing Karo, 468 U.S. at 712). Jones found that the conclusion was “perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location.” Jones, 132 S. Ct. at 952. Unlike Jones, no law enforcement officer trespassed on defendant’s vehicle to install a tracking device. Indeed, law enforcement officers did nothing to place the package in the vehicle. The package was simply delivered to the mobile home according to the instructions given by defendant or a conspirator to UPS, and the conduct of the conspirators was allowed to take its natural course.

Karo did hold, however, that some monitoring of the tracking device required a warrant under the Fourth Amendment. The Court held that the monitoring of a beeper in a location not open to visual surveillance (there a residence) violated the Fourth Amendment rights of those who had a justifiable interest of privacy in the location. Karo, 468 U.S. at 714-18. Here, the beepers were monitored only while the Toyota was moving in public places subject to lawful visual surveillance. Therefore, the monitoring did not violate the Fourth Amendment.

Apparent authority is different from actual authority. One is not the other. United States v. Wilburn, 2012 U.S. Dist. LEXIS 66301 (E.D. Ky. May 11, 2012)*:

Wilburn argues the finding of actual authority was erroneous for two reasons. First, he ties what he concludes is a shaky basis for apparent authority to what he argues must correspond to a finding of no actual authority, “if her apparent authority was questionable the officers certainly could not rely on actual authority.” [R. 426 at 2]. Like all of Wilburn’s arguments, he cites no legal authority to support this proposition. Indeed, Wilburn’s argument is at odds with the clear legal principles present in this situation. Apparent authority is present when “the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.” United States v. Campbell, 317 F.3d 597, 608 (6th Cir. 2003) (quotation omitted). Thus, apparent authority, as an idea, concerns what information the officers knew at the time of the search and whether it would be reasonable to conclude that the consenter had authority.

This is very different from actual authority. The concept of actual authority is concerned with whether the consenter had actual dominion over the object he authorized to be searched.

New law review article: Searching Secrets by Nita A. Farahany of the Vanderbilt Law School, forthcoming in the U. Pa. L. Rev. Abstract:

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated protected information like the “content” inside. That metaphor is flawed because it focuses exclusively on whether information is secluded and assigns no value to the substantive information itself. This Article explores the descriptive potential of intellectual property law as a metaphor to describe current Fourth Amendment search and seizure law. It applies this new metaphor to identifying, automatic, memorialized, and uttered evidence to solve current riddles and predict how the Fourth Amendment will apply to emerging technology. Unlike real property law, intellectual property law recognizes that who authored information — and not just how or where it was stored — informs the individual interests at stake in that information. The exclusive rights of authors, including nondisclosure, are interests recognized by copyright law. Recognizing the secrecy interests of individuals has broad implications for the Fourth Amendment in the information age. Together with real property law, an intellectual property law metaphor better describes emerging doctrine, which has required greater government justification to search certain categories of information. But it also reveals the normative shortcomings of current doctrine when the secrets the government seeks are automatically generated information that arises from computer activities, via GPS tracking, or are emitted by our brains.

NYTimes.com: New York Police Release Data Showing Rise in Number of Stops on Streets by Al Baker:

Police officers stopped people on New York City’s streets more than 200,000 times during the first three months of 2012, putting the Bloomberg administration on course to shatter a record set last year for the highest annual tally of street stops.

Welcome to the Big Apple. Come on Vacation, Leave on Probation.

Four armed police officers and two security officers at the door for a knock-and-talk who moved forward when the door was opened was a coercive show of force making the consent involuntary. State v. Clark, 2012 Ohio 2058, 2012 Ohio App. LEXIS 1806 (8th Dist. May 10, 2012):

[*P21] While accepting the trial court’s findings of fact as true, we find that upon considering these factors, the totality of the circumstances in this case demonstrates that Clark did not voluntarily consent to the officers’ entry into and search of his apartment. The record reflects that four police officers and two uniformed security officers were waiting for Clark when he opened his apartment door. Even discounting Clark’s testimony that one of the officers had his gun drawn, we find the presence of six officers immediately outside Clark’s apartment door to be an overwhelming show of force that was inherently coercive, especially if, as Det. Kreischer testified, the purpose of a “knock and talk” is simply to “engage a suspect in conversation.”

[*P22] The record also reflects that when Clark opened the door, the officers immediately surged forward into the doorjamb, making it impossible for Clark to shut the door. This tactic could only be meant to intimidate Clark into letting the police into his apartment so they could observe any contraband, consistent with Det. Carpenter’s testimony that the real purpose of a “knock and talk” is to develop probable cause and make an arrest.

. . .

[*P24] Based on the foregoing, we can only conclude that under the totality of the circumstances, any consent was the result of coercive police tactics, and not voluntarily given. “‘Consent’ that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.” Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Therefore, any evidence obtained as a result of the warrantless entry into and search of Clark’s apartment should have been suppressed as tainted fruit of the poisonous tree and, accordingly, the trial court erred in denying the motion to suppress. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

New law review article: Suspicionless Searches of Public School Students: An Empirical Legal Analysis by Jason P. Nance forthcoming in the U. Colo. L. Rev. Abstract:

This Article presents an original empirical legal analysis of recent data from the U.S. Department of Education’s School Survey on Crime and Safety. The results of the analysis suggest that many public schools are violating students’ civil rights by conducting suspicionless, intrusive searches without valid justifications, such as having particularized evidence of a drug or weapons problem. Furthermore, the data indicate that many school officials may be using illegitimate criteria – most notably race – to determine whether to conduct those searches. For example, in schools that did not report any student violations relating to weapons, alcohol or drugs during the school year, schools with high minority populations were more than twice as likely to perform suspicionless, intrusive searches than schools with low minority populations. These findings hold true even when taking into account schools officials’ perceptions of the levels of crime where students live and where the school is located. The results underscore the importance of requiring school officials to provide particularized, objective evidence of a drug or weapons problem to justify these searches under the Fourth Amendment. Performing such searches without sufficient justification violates a fundamental civil right in the very institution where children should be educated about good citizenship. Schools cannot expect students to learn important constitutional principles when school authorities disregard them.

NJ.com: Trucker found with 364 pounds of marijuana doesn’t have to reveal BlackBerry password, N.J. court rules by AP:

MOUNT OLIVE — Police in northern New Jersey can’t force a California trucker accused of hauling marijuana to reveal his password to unlock his BlackBerry.

A judge in Morristown on Thursday ruled that disclosing the password would violate the trucker’s Fifth Amendment privilege against self-incrimination.

Wired.com: Few Companies Fight Patriot Act Gag Orders, FBI Admits by Kim Zetter:

Since the Patriot Act broadly expanded the power of the government to issue National Security Letters demanding customer records, more than 200,000 have been issued to U.S. companies by the FBI. But the perpetual gag orders that accompany them are rarely challenged by the ISPs and other recipients served with such letters.

NYTimes.com: Lawsuit Says Sheriff Discriminated Against Latinos by Fernanda Santos and Charlie Savage:

PHOENIX — A federal lawsuit asserting a “pattern of unlawful discrimination” by law enforcement officials here claims that Latinos at the county jail were often referred to as “stupid” or addressed with a coarse ethnic slur. It also says that an e-mail circulated among jail officers contained a photograph of a Chihuahua in a swimsuit, over the words, “A rare photo of a Mexican Navy Seal.”

On the streets, Latino drivers were five to nine times more likely than their non-Latino counterparts to be stopped or searched, the suit asserts, for appearing disheveled or dirty or if it was deemed that too many people were in the back seat. Some were detained because they were said to have looked nervous or avoided eye contact.

. . .

Portraying Sheriff Arpaio’s roughly 900 deputies as poorly trained and supervised, the suit contends that they are far more likely to stop and search Latinos than non-Latinos. Further, the complaint asserts, there is a “culture of bias” against Latinos among the 1,800 officers in the county jail system.

Davis‘s good faith exception is not applicable to GPS surveillance because of lack of binding authority, at least in the circuit. Jones was decided after indictment based on the surveillance. United States v. Katzin, 2012 U.S. Dist. LEXIS 65677 (E.D. Pa. May 9, 2012):

In support of the good faith argument, the Government relies primarily on Davis v. United States, 131 S. Ct. 2419 (2011). In that case, Willie Davis moved to suppress evidence found during the search of a vehicle in which he was a passenger, which took place after he and the driver were handcuffed and placed in a police car. Id. at 2425. At the time of the search, precedent in the circuit where the search was conducted clearly set forth a brightline rule allowing police to search vehicles contemporaneously with arrests of recent occupants, regardless of whether the occupants were still within reach of the vehicle. After the trial court denied Mr. Davis’s motion and he had appealed his subsequent conviction, the Supreme Court decided Arizona v. Gant, 556 U.S. 332 (2009), in which the Court departed from the brightline rule regarding vehicle searches previously adopted by most courts. Instead, the Supreme Court held that a vehicle search is not automatically permitted unless the occupants are still “‘unsecured and within reaching distance of the passenger compartment at the time of the search.'” Id. at 2425 (quoting Gant, 556 U.S. at 343). Because the police acted in good faith in relying on binding appellate precedent at the time of the search, the Supreme Court upheld the Eleventh Circuit’s holding that the exclusionary rule should not apply in Mr. Davis’s case. The Court likened this extension of the exclusionary rule to cases in which police had relied on subsequently invalidated statutes or warrants. Id. at 2428-29.

Here, there was no binding Third Circuit precedent on the issue at hand (or even arguable ambiguity in Circuit case law), but rather a split of other circuits with regard to the Fourth Amendment significance of non-consensual GPS monitoring. After Davis, only a very small handful of federal court opinions have even discussed the extension of Davis’s holding to an area of unsettled law, and all three deal with GPS monitoring. …

Defendant disavowed the drugs and guns at the time of the search, and then he failed to show a sufficient connection to the property for standing. “At the hearing, Hollis testified that he did not know Howard, the lessor of the apartment. He also testified that he was not given permission by Howard to enter the apartment. Hollis did testify that he was given keys to the apartment by a man named Terry, who claimed to know Howard. However, Howard testified to the Grand Jury that she had not given Terry, or anyone for that matter, a set of keys to the apartment.” United States v. Hollis, 2012 U.S. Dist. LEXIS 63778 (M.D. Ala. April 11, 2012).*

Defendant was stopped for a seat belt violation, and the usual inquiries took twenty minutes. The court does not find that unreasonable as a matter of law. United States v. Sotelo-Lopez, 2012 U.S. Dist. LEXIS 64126 (D. Kan. May 7, 2012).*

“[R]eason to believe” in 8 U.S.C. § 1357(a) means probable cause to believe that a person is illegally in the United States. The regulation in 8 C.F.R. § 287.8 governs arrest and questioning of suspects. United States v. Ravelo-Rodriguez, 2012 U.S. Dist. LEXIS 63801 (E.D. Tenn. March 12, 2012).*

NYTimes.com: 2 Opinions on Stop-and-Frisk Report by Al Baker and Joseph Goldstein

In 2003, the second year of Mayor Michael R. Bloomberg’s first term, police officers confiscated 604 guns through 160,851 stop-and-frisk encounters: a success rate of one gun for every 266 stops.

Last year, the police seized 780 guns through 685,724 stop-and-frisk encounters, meaning that officers made 879 stops for each gun found.

Critics of the Police Department’s street-stop tactics, including the New York Civil Liberties Union, said the falling gun recovery rate was a sign that the department was stopping too many innocent people as it made an increasing number of street stops in minority neighborhoods.

Marijuana Odor Perception: Studies Modeled From Probable Cause Cases, 28 Law and Human Behavior, No. 2 (April 2004), by Richard L. Doty, Thomas Wudarski, David A. Marshall, and Lloyd Hastings:

The 4th Amendment of the United States Constitution protects American citizens against unreasonable search and seizure without probable cause. Although law enforcement officials routinely rely solely on the sense of smell to justify probable cause when entering vehicles and dwellings to search for illicit drugs, the accuracy of their perception in this regard has rarely been questioned and, to our knowledge, never tested. In this paper, we present data from two empirical studies based upon actual legal cases in which the odor of marijuana was used as probable cause for search. In the first, we simulated a situation in which, during a routine traffic stop, the odor of packaged marijuana located in the trunk of an automobile was said to be detected through the driver’s window. In the second, we investigated a report that marijuana odor was discernable from a considerable distance from the chimney effluence of diesel exhaust emanating from an illicit California grow room. Our findings suggest that the odor of marijuana was not reliably discernable by persons with an excellent sense of smell in either case. These studies are the first to examine the ability of humans to detect marijuana in simulated real-life situations encountered by law enforcement officials, and are particularly relevant to the issue of probable cause.

Network World: Fight the Patriot Act and win. Next? Promise privacy, a surveillance-free ISP:

Nick Merrill, once known as John Doe, secretly fought for our First and Fourth Amendment rights, battled against NSL abuse, a gag order, excessive government secrecy, and almost entirely redacted documents from FBI counterintelligence. Living under such mentally-exhausting circumstances for years is bound to change a person, but Merrill believes it is “better to die on your feet than live on your knees” and is “hoping to do further legal challenges to some of the warrantless wiretapping laws in America.” What’s next after fighting the Patriot Act and winning? Merrill intends to create a surveillance-free ISP with end-to-end encryption that promises to put your privacy above profit. The Calyx Institute promises to be an ISP that will stand up to the government.