Where placing a GPS on a vehicle was permitted by binding circuit authority prior to Jones, the information could be used and not excluded under Davis [which applied to binding SCOTUS case law]. United States v. Aquilar, 2012 U.S. Dist. LEXIS 64139 (D. Idaho May 7, 2012):

At the time the GPS devices were used in this case, binding precedent in the Ninth Circuit established that the warrantless attachment of GPS devices did not violate the Fourth Amendment. See United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999). More recently, the Ninth Circuit held that placing a GPS tracker on a vehicle while the vehicle was parked in a private driveway did not constitute a search under the Fourth Amendment. See United States v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir. 2010), judgment vacated by Pineda-Moreno v. United States, 132 S.Ct. 1533, 182 L. Ed. 2d 151 (2012). The court in Pineda-Moreno further held that monitoring such tracking devices did not constitute an impermissible search under the Fourth Amendment. Id. at 1216-17. Thus, law enforcement officers, when they placed the GPS tracker on Mr. Aguilar’s car in October and November of 2011, were acting in objectively reasonable reliance on the binding appellate precedent provided by McIver and Pineda-Morales. Accordingly, the exclusionary rule will not be applied here because suppression of the evidence obtained would do nothing to deter police misconduct. See Davis supra.

The Dead Past, by Alex Kozinski, Chief Judge, United States Court of Appeals for the Ninth Circuit, 64 Stan. L. Rev. Online 117

. . .

I have worried a good deal about that fish bowl over the years, and it seems pretty clear that it’s getting smaller, and its walls are getting more transparent. To give just one example, the other day one of my sons sent me a link to a satellite picture of my house from Google Maps. You could not only see the house in pretty clear detail, but you could see who was home, from the two cars in the yard—my son’s blue Subaru and my brother-in-law’s gray Avalanche. I was very happy that I hadn’t been taking one of my famous nude sun-baths on my patio.

I flew here today from Los Angeles. I drove to LAX, landed at San Jose Airport and a student drove me to Palo Alto. Who knows this? Big Brother knows. Why? Because I carried my cell phone, and who doesn’t carry a cell phone nowadays? The cell phone logs in every few minutes to a nearby cell tower, so if you obtain the telephone company’s records, it’s pretty easy to piece together exactly where I’ve been all day. And, if you have the student’s cell phone number, you’d also know how long we spent together and where we went.
Does the government obtain such records to check people’s alibis in case they are suspected of crimes? You bet they do. In fact, if you left your phone at home that day, so there’s no cookie-crumb trail to show you were somewhere else, prosecutors will argue that you not only committed the crime, but premeditated it as well—by leaving your cell phone at home so your steps couldn’t be traced. China has taken this to another level: Earlier this year, Beijing officials announced that they intend to use cell phones to monitor the movements of twenty million residents—“to ease traffic and subway congestion.”

PCWorld: DOJ Says Requiring Warrant for Cell Phone Tracking Would ‘Cripple’ Law Enforcement by Darlene Storm:

If your mobile phone is on then it is constantly pinging cell phone network towers, leaving you no choice about revealing your location. The ACLU warned the “threat to personal privacy presented by this technology is breathtaking,” especially since the “government is routinely violating American’s privacy rights through warrantless cell phone tracking.” Apparently any mobile phone privacy is too much privacy in the early stages of an investigation, before law enforcement actually has any proof that a person has done anything illegal. An Obama administration official told a congressional panel that requiring a search warrant to obtain cell phone location tracking information would “cripple” law enforcement and prosecutors.

LA Times editorial: The secret life of your cellphone; In a threat to the 4th Amendment, law enforcement is using location data as a crime-fighting tool:

Concerned that mobile phone networks are becoming surveillance tools, the American Civil Liberties Union recently asked hundreds of local law enforcement agencies whether they’ve tracked people’s movements through their cellphones. Most of those that responded said they had, usually obtaining the information from mobile phone companies without a warrant. The practice has become so routine, the ACLU found, that phone companies are sending out catalogs of monitoring services with detailed price lists to police agencies. The alarming findings should persuade Congress to clarify that the government can’t follow someone electronically without showing probable cause and obtaining a warrant.

Allegations of excessive force used during defendant’s arrest did not justify suppression of the search where there was no causal connection. United States v. Collins, 2012 U.S. Dist. LEXIS 63214 (N.D. Ind. May 4, 2012):

The Defendant’s primary objection to the admission of the evidence against him is his claim that Officers Ealing and Johnson used unreasonable force to effectuate his arrest. The Defendant cites a Ninth Circuit case, United States v. Ankeny, for the proposition that a Fourth Amendment excessive force violation requires suppression of the evidence seized. 502 F.3d at 836. However, the Defendant also cites to United States v. Watson, where the Seventh Circuit disagreed with the Ankeny court. Specifically, the Seventh Circuit declined to apply the Ankeny court’s reasoning, holding: “We thus disagree with the dictum in United States v. Ankeny … that the use of excessive force in the course of a search can require suppression of the evidence seized.” 558 F.3d at 705. Rather, if a defendant proves excessive force, “his remedy would be a suit for damages under 42 U.S.C. § 1983 (or state law) rather than the exclusion from his criminal trial of evidence that had been seized in an otherwise lawful search.” Id. at 704. Therefore, under a plain reading of Watson, suppression would not be appropriate even if the Defendant could establish that Officers Ealing and Johnson used excessive force against him. Rather, the Defendant’s appropriate remedy would be a § 1983 civil suit against the Officers for use of excessive force.

The Court notes that even under Ankeny, suppression would not be appropriate in this case. The Ankeny court held that it did not need to determine whether unreasonable force had been used because there was no “causal nexus” between the allegedly unreasonable force and discovery of the evidence. Ankeny, 502 F.3d at 837; see also Watson, 558 F.3d at 702 (“There was no causal connection … between the alleged police misconduct and the obtaining of the evidence.”). The bag containing cocaine was obtained not because of any allegedly unreasonable force used by the Officers, but because the Defendant threw it away from his person before Officer Ealing used any force. As the Government urges, “[a]n arrest does not occur until a police officer lays hands on a subject or the subject voluntarily submits to a show of authority.” United States v. Britton, 335 Fed. Appx. 571, 575 (6th Cir. 2009); California v. Hodari D., 499 U.S. 621, 626 (1991) (“An arrest requires either physical force … or, where that is absent, submission to the assertion of authority.”). The exclusionary rule is only triggered where evidence is obtained “following an unlawful arrest.” United States v. Howard, 621 F.3d 433, 451 (6th Cir. 2010). Because the facts indicate that the Defendant threw the bag away from his person before Officer Ealing touched him, the bag was not obtained “following” an arrest at all, and so there can be no nexus between the alleged unreasonable force and finding the bag. For that matter, it appears that the Defendant placed the bag in a publicly exposed place, suggesting that the Government’s retrieval of the bag did not constitute a search at all within the meaning of the Fourth Amendment. See United States v. Eubanks, 876 F.2d 1514, 1516 (11th Cir. 1989) (“[U]nder the fourth amendment no governmental ‘search’ occurs if the place or object examined is publicly exposed such that no person can reasonably have an expectation of privacy.”).

Defendant was stopped based on a search warrant for the apartment of another. In the search, officers found no drugs, but they found keys. It turned out that a key fit the apartment door. At the time of the search of his person, the officers did not have probable cause to detain him because there was no known connection to the keys and the apartment. Defendant was taken from the place of his seizure to the apartment. People v. Hill, 2012 Ill. App. LEXIS 332, 2012 IL App (1st) 102028 (May 4, 2012):

[**P22] We note that the finding of probable cause to support the search warrant does not permit us to assume that there was probable cause or reasonable suspicion to justify the continued detention and transportation of defendant. These are related, but different, inquiries, and “[e]ach requires a showing of probabilities as to somewhat different facts and circumstances.” 2 Wayne R. LaFave, Search and Seizure § 3.1(b), at 8-9 (4th ed. 2004). “In the case of arrest, the conclusion concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go to the connection of the items sought with crime and to their present location.” Id. at 10. The same holds true for the State’s Terry argument: the search warrant does not, by its mere existence, give rise to reasonable suspicion that justifies the continued detention and transportation of defendant. While this information supporting the search warrant is now part of the record, the State has never argued—in the motion to supplement the record, in its brief, or at oral argument—that the specific facts in the complaint for the search warrant support an independent finding of probable cause or reasonable suspicion that would justify the seizure. Instead, the State simply argues that because police had a reason to believe there were drugs in the Flournoy apartment (i.e., they had probable cause for the search warrant), they also had probable cause, or at least reasonable suspicion, that allowed for defendant’s continued detention and transportation. Where the search of defendant revealed no narcotics and police had not yet found any narcotics or contraband at the apartment, the mere expectation that police would find drugs in the apartment, without more, cannot justify defendant’s continued detention and transportation to the apartment.

Volokh Conspiracy: The Fourth Amendment and Video Recording in Bathrooms, in Civil Commitment Units for Sex Offenders by Eugene Volokh:

Arnzen v. Palmer (N.D. Iowa Apr. 12, 2012) deals with an interesting and unusual questions: To what extent, if any, does the Fourth Amendment restrict searches in civil commitment units for sex offenders?

The smell of raw marijuana coming from defendant’s person, his admission that he smoked earlier, and the small amount in the car not accounting for the smell, a search of the passenger compartment and trunk was justified. State v. Fogel, 2012 Ohio 1960, 2012 Ohio App. LEXIS 1726 (5th Dist. April 19, 2012).*

Defendant was arrested walking out of a building where there was a marijuana grow on the second floor, for which the officers had a search warrant. He lived on the first floor. He said he signed a consent as acquiescence to the officer’s claim of authority. He is entitled to a hearing on the motion because the only document tendered was the criminal complaint generated post-arrest. United States v. Morillo, 2012 U.S. Dist. LEXIS 62590 (S.D. N.Y. May 2, 2012).*

There was probable cause to arrest the defendant for soliciting sex, so the search incident to arrest that produced a syringe was valid. State v. Cavalier, 2012 Ohio 1976, 2012 Ohio App. LEXIS 1738 (2d Dist. May 4, 2012).*

Baltimore Sun editorial: DNA testing: Why not just trash the Fourth Amendment?

I found Dan Rodricks’ commentary regarding DNA testing and the recent Maryland Court of Appeals ruling (“DNA: Why wait for an arrest?” May 3) to be quite interesting. He states at the end that he can’t think of a good argument against his position that we should all give DNA samples to the authorities whether we have been accused of a crime or not. Well, Dan, I’ve also thought about how useful having a large repository of DNA can be. Unsolved crime and a city mayor on your back? No problem! We’ll just take some DNA from our bank, plant it at the scene, and say that it was left there.

DNA evidence would surely trump any factual alibi, so no problem, case closed, someone (whether guilty or not) now behind bars, and the mayor’s happy. Don’t believe it could happen? Think again. Planting “evidence” is not unheard of.

. . .

Of course, we could simply scrap the whole Fourth Amendment and allow the government to enter our homes and search them whenever they felt like it, all in the name of proving our innocence. If we have nothing to hide, why should we not give them free reign and not require things like probable cause and warrants?

Defendant consented to a search of his computer for evidence of voyeurism. His cell phone was discovered to be an instrumentality of the crime for some of the photographs, so it was properly seized. State v. Dennison, 2012 Ohio 1988, 2012 Ohio App. LEXIS 1744 (6th Dist. May 4, 2012).*

In a search warrant for drugs and “any and all other items related to the purchase, manufacture or sale of illegal drugs,” the police were permitted to seize, in addition to drugs: “(1) 2 flat screen TVs, (2) a camera, (3) a snow blower, (4) a stereo, (5) a dvd player, (6) a refrigerator, (7) an electric range, (8) a washer and dryer, (9) a receiver, (10) a stun gun, and (11) a bicycle.” Considering defendant’s comparatively lavish lifestyle while on unemployment and the seizure of $42,000 in cash from his house, there was justification for the seizure based on the officer’s reasonable belief it was all bought with drug proceeds. State v. Kreuz, 2012 Ohio 1990, 2012 Ohio App. LEXIS 1747 (6th Dist. May 4, 2012):

Detective Jones acknowledged that none of the above items were listed in the search warrant. He testified, however, that based on what he knew of appellant’s financial situation, the above high end items could only have been purchased from proceeds appellant received through drug trafficking. Detective Jones cited appellant’s properly subpoenaed bank and tax records which showed that appellant was unemployed and receiving weekly unemployment benefits in the approximate amount of $250 a week. This appeared to be appellant’s only income. However, a large amount of cash, $42,799, was found in the home. Appellant was also making a mortgage payment of approximately $1,000 a month. Receipts found for some of the items listed above showed that appellant paid for those items with either cash or gift cards. After relaying his impressions to the Wood County prosecutor, he was advised to seize the above listed items.

Officers entered onto the curtilage of defendant’s property before they could smell a grow operation and hear the equipment. That was a Fourth Amendment violation, and it vitiated alleged consent and the good faith exception to a later warrant. United States v. Lopez, 2012 U.S. Dist. LEXIS 61707 (S.D. Fla. May 2, 2012):

Here the Court finds that the area within the Target Residence’s metal fence and gates—and specifically the areas occupied by Officers Bartra, Rios, and Benavides at the time they smelled marijuana and heard the sounds of marijuana-grow-house equipment— constituted curtilage subject to fundamental Fourth Amendment protections. The area was close in proximity to the residence, was enclosed within the metal fence and contiguous gates, and was shielded by the fence’s white paneling to block observation from outside. Although the driveway may have been used for ingress to and egress from the property, and although the driveway gate did not contain obstructive paneling, the closed, locked mechanical gate clearly delineated the driveway as a private area which visitors—and thus the investigating officers—were not expected to encroach. See, e.g., Edens v. Kennedy, 112 F. App’x 870, 875 (4th Cir. 2004); United States v. Hambelton, No. 1:08cr26-SPM, 2009 U.S. Dist. LEXIS 25139, 2009 WL 722284, at *4 (N.D. Fla. 2009). Moreover, although at one point Perez opened the gate so that he and Ricano could exit, one cannot say that this brief opening of the gate converted the driveway into only a semi-private area through which visitors were free to travel. See Fernandez v. State, 63 So. 3d 881, 884 (Fla. Dist. Ct. App. 2011) (“[T]he momentary opening of the gate for the defendant to leave was not an open invitation to the public, or by extension to the police, to enter. … No salesman or visitor could have entered the enclosed curtilage during the momentary opening. The momentary opening of the gate for the express purpose of leaving did not alter the Dunn expectation-of-privacy factors.”) The Court thus finds that the area from which officers first smelled marijuana constituted “curtilage” and that the officers’ physical entry into that area implicated Defendants’ Fourth Amendment protections.

NYTimes.com: Wireless Carriers Who Aid Police Are Asked for Data by Eric Lichtblau:

WASHINGTON — A leading House Democrat is demanding information from the country’s biggest cellphone companies about their role in helping local police departments conduct surveillance and tracking of suspects and others in criminal investigations.

Law.com: The Court and the Fourth Amendment; The Justices tend to find a violation if they can imagine the search applying to them personally by Erwin Chemerinsky:

I long have believed that the best predictor of whether the U.S. Supreme Court finds a violation of the Fourth Amendment is whether the justices could imagine it happening to them. For example, the Supreme Court upheld drug-testing requirements in every case until it considered a Georgia law that required that high-level government officials be subjected to it. The two Fourth Amendment decisions this term, U.S. v. Jones and Florence v. Board of Chosen Freeholders of Burlington County, powerfully illustrate that the justices only seem to care if it could happen to them.

FoxNews.com: Taking Liberties: Cab driver isn’t paranoid, the government IS watching him by Douglas Kennedy:

Just because taxi driver Andre Olczak believes he’s being watched, doesn’t mean he’s paranoid

In fact, he’s not only being watched, he’s being monitored every second while he’s at work.

“It’s terrible,” he says as he drives his yellow cab on W. 48th St. in midtown Manhattan.

“They are constantly watching me.”

“They” are the TLC, or Taxi and Limousine Commission, the government body that licenses taxi drivers in New York City. In 2007, the TLC required all cabbies to install GPS or Global Positioning System devices to monitor their locations, speed and meters while they’re driving.

My last post about TLC’s GPS monitoring was back in September 2010. Are taxicabs “highly regulated” for fare ripoffs? FoxNews being FoxNews, it probably does not have a sense of history on this.

The state’s emergency aid exception argument for the entry into defendant’s motel room was based on observations after the entry, so they could not justify the entry. State v. Shirk, 248 Ore. App. 278, 273 P.3d 254 (2012).

Case remanded for review under Gant even though defendant didn’t raise it in trial court. State v. Cross, 166 Wn. App. 320, 271 P.3d 264 (2012) (pending 23 months, resulting in a two paragraph opinion).*

Plaintiff’s wrongful detention for 16 days was based on mere negligence of a jailer in stapling his form to the wrong pile of paper, and that did not state a claim under the state civil rights act. Shoyoye v. County of L.A., 203 Cal. App. 4th 947, 137 Cal. Rptr. 3d 839 (2d Dist. 2012).*

Defendant was a passenger in a car and was ordered out and to put his hands on the roof. He was patted down and no weapon was found. A further search was unjustified, and it was suppressed. The patdown revealed no weapon or apparent contraband. On the state’s argument that the defendant was guilty of constructive possession, there was no evidence that the defendant could even see what was hidden in the car. Wynn v. State, 14 So. 3d 1094 (Fla. App. 2DCA 2009).*

The driver of a car, with the apparent consent of the owner, has a sufficient privacy interest in the car to contest the stop and search of the car. The weapons search of the car was justified under Long because the car was stopped on suspicion of aggravated battery and an occupant being on federal supervised release for drugs. State v. Preston, 41 Kan. App. 2d 981, 207 P.3d 1081 (2009).*

“The factors to be considered in determining the reasonableness of the procedure used to draw the suspect’s blood include the qualifications of the person drawing the blood, the environment in which the blood was drawn, and the manner in which the blood was drawn.” (quoting Schmerber). State v. Davis, 41 Kan. App. 2d 1034, 207 P.3d 281 (2009).*

The occupants of a car gave inconsistent versions of where they were going. This gave RS, and the officer threatened to get a drug dog, and the occupants consented to a search. It was reasonable under the circumstances. State v. Baum, 199 N.J. 407, 972 A.2d 1127 (2009).*

[posted 6/21]

Defendant was stopped for not dimming his headlights, and he was without a DL. The officers’ search incident of defendant’s car violated Gant; even though the defendant and his passenger weren’t handcuffed and were standing at the rear of the car, they were outnumbered. The government’s argument that Long justified a protective weapons search of the car was also rejected. United States v. McCraney, 674 F.3d 614 (6th Cir. 2012):

Here, McCraney and Ammons were not handcuffed or secured in the back of a patrol car. They were standing, however, behind the Buick as instructed, two or three feet from the rear bumper, with three officers standing around them, while the other two officers on the scene conducted the search of the passenger compartment. Ricker testified that he stood approximately eight feet from McCraney, and watched him closely while the search was conducted. The officers outnumbered the detainees and, although not formally arrested, handcuffed or secured in a patrol car, the district court did not err in finding that the officers could not reasonably believe McCraney and Ammons were “within reaching distance” of the passenger compartment at the time of the search. Given the narrowed scope of the exception in light of Gant, the search may not be justified as a search incident to arrest.

Where officers had a search warrant for defendant’s person and his house, it did not violate the Fourth Amendment to move him from where he was found nearby back to his house for the search to occur. United States v. Flagg, 455 Fed. Appx. 719 (8th Cir. 2012):

Here, officers obtained a warrant to search Flagg’s person and a residence located at 2312 Southeast 18th Street, Des Moines, Iowa (18th Street residence). While executing the warrant, officers located Flagg at a neighboring residence and transferred him to the warrant-covered residence. Flagg challenges this transfer, but we see no Fourth Amendment violation in transferring Flagg-only a short distance-from a neighboring residence to the warrant-covered residence. See United States v. Slupe, 692 F.2d 1183, 1189 (8th Cir. 1982) (recognizing that a warrant to search a person authorizes an arrest of that person for purposes of conducting the search); United States v. Baca, 480 F.2d 199, 203 (10th Cir. 1973) (finding that search warrant did not require the search of a person to be conducted at a particular location). This is especially true in light of the officers’ concern for their ability to control the situation at the neighboring residence. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per curiam) (“What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.”). Moreover, given that officers obtained a warrant for the 18th Street residence and reasonably believed Flagg lived there, we conclude it was constitutionally reasonable to detain Flagg after the search of his person, for the relatively short time officers needed to search the residence. See Michigan v. Summers, 452 U.S. 692, 705 (1981) (concluding “it is constitutionally reasonable to require [a] citizen to remain while officers of the law execute a valid warrant to search his home”). Although Flagg asserts that the officers simply transferred him to the 18th Street residence so they could interrogate him, the rule is well-established that as long as officers act according to a legally justified search and seizure, their subjective motivations are not relevant to a Fourth Amendment analysis. McClendon v. Story Cnty. Sheriff’s Office, 403 F.3d 510, 515-16 n.4 (8th Cir. 2005). Accordingly, the district court did not err in denying Flagg’s motion to suppress.

[Note: They have a search warrant. The warrant authorizes a search of the person. How much of an additional invasion of liberty is it to be moved a short distance for the search, when a person can be moved around some merely on reasonable suspicion? How can you realistically argue that the Fourth Amendment was violated under such circumstances?]

The district court granted suppression in a parole search case where the parole officer received a complaint that defendant had fired a gun at a complainant. Under New York law, defendant consented to a parole search by accepting parole. His arrest did not elevate him to the status of a non-parolee subject to greater Fourth Amendment protection. The parole officer was still entitled to search the defendant’s property. Suppression reversed. United States v. Barner, 666 F.3d 79 (2d Cir. 2012).*

Where statements were made two months after the allegedly illegal search, the statements were clearly attenuated from the allegedly illegal search. United States v. Bergin, 455 Fed. Appx. 908 (11th Cir. 2012).*

In a child porn case, it was hardly an abuse of discretion to condition supervised release on searches of computers connected to the internet. United States v. Grigsby, 2012 U.S. App. LEXIS 412 (9th Cir. January 9, 2012) (unpublished):

The district court did not abuse its discretion by imposing a condition of supervised release pursuant to 18 U.S.C. § 3583(d) requiring that Grigsby submit to searches and seizures of computers and related devices. “Subjecting computers and other devices able to access the Internet to monitoring, search and seizure is critical to preventing [Grigsby] from viewing or obtaining child pornography.” United States v. Goddard, 537 F.3d 1087, 1090 (9th Cir. 2008). This condition of supervised release is sufficiently narrow because it applies only to those devices connected to the Internet. See United States v. Quinzon, 643 F.3d 1266, 1272-74 (9th Cir. 2011) (analyzing an identically-worded condition of supervised release).

The encounter with defendant was voluntary and consensual, but there was more because defendant fit the description of a person in a conversion van whom a BBQ joint’s employees thought was casing the place to rob it. When the officer saw the van and the defendant he was the only person around and he was acting suspiciously. Finally, he fled when the questions got more pointed. United States v. Foskey, 455 Fed. Appx. 884 (11th Cir. 2012).*