The car defendant was in was stopped leaving an alleged drug house. She refused permission to search her purse. The stop of the car and the search of her purse were unlawful. “The things that [Officer] Norris mentioned do not meet the Ehly test. As a practical matter, defendant’s refusal to permit Norris to search her purse may have raised his suspicions, but as a legal matter it can play no role. A person’s assertion of a constitutional right cannot support a reasonable suspicion of criminal activity.” State v. Rutledge, 243 Ore. App. 603, 260 P.3d 532 (2011).*

“Probable cause did not exist to arrest the defendant for allegedly violating the city ordinance against the solicitation of unlawful business based on nothing more than observing the defendant standing on the public way yelling ‘dro, dro.’ [allegedly soliciting heroin sales] Therefore, the trial court erred in denying the defendant’s motion to quash arrest and suppress evidence.” People v. Grant, 951 N.E.2d 1153 (Ill. App. 2011), Appeal granted by People v. Grant, 955 N.E.2d 475, 2011 Ill. LEXIS 1599 (Ill., Sept. 28, 2011).*

Officers were looking for Barnes driving a red Cadillac. A red Cadillac was seen and stopped. In plain view was a gun under the seat and a pill bottle, and the driver was removed and searched and drugs were found. The officer that knew Barnes arrived and said that the driver was not Barnes. Defendant’s search was without legal basis and suppressed. Eaddy v. State, 63 So. 3d 1209 (Miss. 2011).*

State’s certification of necessity for appeal was deficient and the state’s appeal of a suppression order was dismissed. State v. Peterson, 2011 ND 109, 799 N.W.2d 67 (2011).*

Defendant was not stopped and was free to go when the officer parked near and in front of him but not blocking him, shone the police car spotlight in his face, and demanded to know what he was doing there. Johnson v. State, 359 S.W.3d 725 (Tex. App.—Houston (14th Dist.) 2011) (concurring judge found reasonable suspicion)*:

In summary, viewed in the light most favorable to the trial court’s ruling, the evidence supports implicit findings that during the initial interaction between Johnson and Hendrie (1) Hendrie approached Johnson’s vehicle, which was backed into a parking spot outside the gate of an apartment complex at night with its lights on and engine running; (2) Hendrie parked his police vehicle at an angle that partially blocked Johnson’s egress but did not prevent him from maneuvering around him and driving away; (3) Hendrie shined his police vehicle’s spotlight inside Johnson’s car; (4) Hendrie did not activate his siren or emergency lights, or use a bullhorn or loudspeaker to communicate with Johnson; (5) Hendrie approached Johnson’s car and asked, “What’s going on, what are you doing out here?” and requested Johnson’s identification; and (6) Hendrie did not carry a flashlight, draw a weapon, order Johnson to put his hands up, or otherwise inform him that he was being detained. On these facts, the trial court could have concluded that a reasonable person in Johnson’s position would have believed that he was free to ignore Hendrie’s requests or terminate the interaction, and therefore the initial interaction between Hendrie and Johnson was a voluntary encounter rather than a Fourth Amendment seizure.

[Note: This is utter fiction and shows that appellate judges haven’t a clue as to what happens in criminal court or on the streets. The purpose of shining the light in the driver’s face is to control the situation and disorient him. It shows to me that he was stopped. With these facts the officer did not have a flashlight becomes meaningless and not supportive of anything. When the officer approaches on foot, it certainly is to block egress. Thus, what person in his right mind would think that he could drive off? If you try to leave and the officer has to move, at least around here, they’d charge you with aggravated assault on a police officer. If you, heaven forbid, touch the police officer jumping in front of you, they’d charge you with attempted capital murder. Practice Pointer: Develop the facts that the officer was positioned such that defendant could not really leave and no person in his right mind would seriously think he was not detained. Again, develop the cross in such a way that when you ask the officer what he’d do if the defendant ignored him and drove off; 9 times out of 10 he’d say defendant would be stopped for ignoring a police officer’s commands. Then, by the officer’s own admission he was not free to leave.]

A computer check showed warrants on defendant, and the officer asked for and got consent to search the car. Defendant got out and left her purse behind. The officer searched the purse, too, and this exceeded the scope of consent. State v. Brooks, 2012 Ohio 646, 2012 Ohio App. LEXIS 592 (11th Dist. February 21, 2012).

Officer could walk up to a car parked in a high crime area and see what was going on. He got their names to see if there were warrants on them and smelled PCP. “Shortly after smelling the PCP, Officer Holloway noticed in plain view a vanilla-extract bottle lodged in the driver’s-side door. Based on his experience, he recognized this as a container in which PCP is commonly stored. At that juncture, even if it was not present before, there was probable cause to search the vehicle for controlled substances.” United States v. McGehee, 672 F.3d 860 (10th Cir. 2012).*

Defendant was stopped by ICE officers working a flea market in Indianapolis. The state failed to call the officer who made the stop at trial, and it failed in its burden of proof of showing reasonable suspicion under the state constitution. Yanez v. State, 963 N.E.2d 530 (Ind. App. 2012).*

Officers lacked reasonable suspicion to detain plaintiff for vandalism of a car. All they knew was that he was Hispanic and lived in the same apartment complex. He fled when he saw them. This was clearly established at the time. The excessive force claim was not ruled on by the district court, so the case is remanded for that. Romero v. Story, 672 F.3d 880 (10th Cir. 2012)*:

Defendants believe our holding will “give the police no recourse to interview a potential suspect to a crime.” In response to this argument, we need only to look to the Constitution. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A citizen has the constitutional right to walk away from a law enforcement officer who lacks probable cause or reasonable suspicion to detain or seize him or her. See Kentucky v. King, 131 S.Ct. 1849, 1862, 179 L. Ed. 2d 865 (2011). The Supreme Court has told us that when law enforcement officers knock on a door without a search warrant and the occupant makes the decision to open the door and speak to the officers, the occupant “may refuse to answer any questions at any time.” Id. This holding is unremarkable and certainly not novel. If the officers want to force a suspect to speak, they must have reasonable suspicion or probable cause. The Constitution mandates no less. Because we hold Defendants lacked reasonable suspicion to detain Plaintiff for the vandalism, Defendants lacked probable cause to arrest Plaintiff for flight or evasion under N.M. Stat. Ann. § 30-22-1(B), thereby violating Plaintiff’s constitutional right to be free from unlawful arrest.

WebProneNews: Judge: Your Tweets Aren’t Yours, And Even Your Deleted Tweets Can Be Obtained Without A Warrant; #OWS protestor loses motion to quash subpoena by Josh Wolford:

“While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet.”

That’s the crux of a decision from New York Criminal Court judge Matthew Sciarrino Jr. Not only that, but when you tweet, you’re giving Twitter the right to distribute all of your information however they please.

“Quilter raises a hodgepodge of constitutional arguments in support of his motion to suppress.” [Meaning: The court is going to deny them as misguided at best.] As to entry of the hotel room, it was justified by the exigent circumstance of officer safety where one person in the room on a bed wouldn’t show his hands right away. “Entry therefore became a matter of officer safety. Since law enforcement officers must be permitted to secure environments for their own protection, Minnesota v. Olson, 495 U.S. 91, 100 (1990), this situation justified entry for that limited purpose.” United States v. Quilter, 2012 U.S. Dist. LEXIS 56393 (D. Vt. April 23, 2012)*:

The Second Circuit has adopted a non-exhaustive list of six factors to determine existence of exigent circumstances:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect “is reasonably believed to be armed”; (3) “a clear showing of probable cause … to believe that the suspect committed the crime”; (4) “strong reason to believe that the suspect is in the premises being entered”; (5) “a likelihood that the suspect will escape if not swiftly apprehended”; and (6) the peaceful circumstances of the entry.

United States v. Reed, 572 F.2d 412, 424 (2d Cir. 1978) (quoting Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970)).

“[T]he court does not find that Deputy Schneider’s use of the density meter was unauthorized by the defendant’s consent to ‘take a quick look in the car.’” The search took six minutes and qualified. United States v. Long Tien Dang, 2012 U.S. Dist. LEXIS 56875 (D. Kan. April 24, 2012).*

A general objection to a USMJ’s R&R only requires plain error review. United States v. Sanchez-Tamayo, 2012 U.S. Dist. LEXIS 57126 (N.D. Ga. April 23, 2012) (USMJ 2011 U.S. Dist. LEXIS 154851 (N.D. Ga. November 28, 2011)*:

Defendants make no attempt to specify why they disagree with the magistrate judge’s conclusions. “In order to trigger de novo review of an R&R, the objection must be ‘specific.'” United States v. Diaz, No. 1:09-CR-0037-WBH, 2011 WL 344093, at *1 (Jan. 31, 2011) (quoting Fed. R. Civ. P. 59(b)(2)). “General objections which reassert arguments by reference to prior pleadings do not suffice.” Id. (citing Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir. 1982). In the absence of objections filed in accordance with Rule 59(b)(2), this court need only perform plain error review. Id.

Running a stop sign was reason enough for a stop. State v. Edmonds, 2012 Tenn. Crim. App. LEXIS 241 (April 23, 2012).*

The trial court found a lack of consent in part because the officer yelled at the motorist to stay with the car, but the appellate court was not persuaded. Safety reasons need to be considered. State v. Miller, 2012 Ohio 1901, 2012 Ohio App. LEXIS 1659 (4th Dist. April 17, 2012)*:

[*P28] After our review of the stipulated evidence submitted in the case sub juice, we disagree with the trial court’s conclusion that the appellee did not voluntarily consent to the search. The trial court relied upon the following factors to determine that appellee did not consent: (1) the trooper ordered appellee to remain in the vehicle; (2) the trooper removed appellee from the vehicle; and (3) the trooper did not advise appellee of his right to refuse. With respect to the first of these factors, the trooper was entirely justified to order appellee to remain in the vehicle. As the United States Supreme Court has recognized, traffic stops carry inherent dangers and law enforcement officers are entitled to exercise authority over the driver and any passengers in order to maintain a sense of safety. See Arizona v. Johnson (2009), 555 U.S. 323, 330, 129 S.Ct. 781, 172 L.Ed.2d 694 (recognizing that “traffic stops are ‘especially fraught with danger to police officers” and that “‘”[t]he risk of harm to both the police and the occupants [of a stopped vehicle] is minimized *** if the officers routinely exercise unquestioned command of the situation.”‘”) (internal quotations and citations omitted). Thus, the trooper’s command that appellee remain in the vehicle does not constitute a coercive or threatening act.

If you’re a law professor, you probably already have seen this call for papers for a symposium: CrimProfBlog: AALS call for papers on Technology and Crime: The Future of the Fourth Amendment in Public:

The AALS Section on Criminal Justice will hold a panel during the AALS 2013 Annual Meeting in New Orleans entitled: Technology and Crime: The Future of the Fourth Amendment in Public.

We are soliciting papers to consider for presentation in conjunction with this panel. Current confirmed speakers on this distinguished panel include Christopher Slobogin, Vanderbilt University Law School, Tracy Meares, Yale Law School, and Orin Kerr, George Washington University School of Law. The panel will be moderated by Andrew G. Ferguson, UDC David A. Clarke School of Law.

Panel: Technology and Crime: The Future of the Fourth Amendment in Public

New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas. Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections. At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.

NYTimes.com: ACLU Sues Over Border Patrol Stops in U.S. Pacific Northwest by Reuters:

The U.S. Border Patrol is unjustifiably stopping people based on their skin color in Washington state’s Olympic Peninsula, just across the water from Canada, the American Civil Liberties Union said in a lawsuit filed on Thursday.

Two Latinos and a black man – two of them prison corrections officers – said in the complaint filed in U.S. federal court in Seattle that they were subject to racial profiling. One of the officers was in his uniform when he was stopped, the lawsuit said.

Applying the “unique” Pennsylvania independence source rule, and pending two years before it was decided, is Commonwealth v. Henderson, 2010 Pa. LEXIS 3074 (April 25, 2010)*:

In the present circumstances, we are unwilling to enforce a “true independence” rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting Appellant with his crimes. In answer to the specific question presented, we hold that suppression is not required on account of Detective Evans’ status as a member of the same police department as Detective Johnson. Rather, in light of the factual circumstances before the Court in both Melendez and Mason, we deem it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct. Where such malfeasance is not present, we agree with the Superior Court that the Murray standard strikes the appropriate balance between privacy and law enforcement. See Lloyd, 948 A.2d at 881-82. Ultimately, we believe the “twin aims” of Article I, Section 8 — namely, the safeguarding of privacy and enforcement of the probable-cause requirement — may be vindicated best, and most stably, by taking a more conservative approach to the departure this Court has taken from the established Fourth Amendment jurisprudence.

. . .

In the present circumstances, we are unwilling to enforce a “true independence” rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting Appellant with his crimes. In answer to the specific question presented, we hold that suppression is not required on account of Detective Evans’ status as a member of the same police department as Detective Johnson. Rather, in light of the factual circumstances before the Court in both Melendez and Mason, we deem it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct. Where such malfeasance is not present, we agree with the Superior Court that the Murray standard strikes the appropriate balance between privacy and law enforcement. See Lloyd, 948 A.2d at 881-82. Ultimately, we believe the “twin aims” of Article I, Section 8 – namely, the safeguarding of privacy and enforcement of the probable-cause requirement – may be vindicated best, and most stably, by taking a more conservative approach to the departure this Court has taken from the established Fourth Amendment jurisprudence.

Finally, we acknowledge the intrusiveness involved in the performance of a second blood draw occasioned by a defective first warrant. We note only that the need for the serial sample is also an unintended consequence of a previous departure from Fourth Amendment law, under which suppression would not have been required of results of the first DNA test. …

Defendant denied he had a connection to the house at the time of the search, and that indicated that he had no standing. United States v. Sayles, 2012 U.S. Dist. LEXIS 57596 (S.D. Ind. April 25, 2012).*

Police officers sought a search warrant for defendant’s house to attempt to corroborate an allegation of sexual assault there. They were there to photograph the interior. Once inside, they found marijuana and guns in plain view. They got a second search warrant to seize them, and it was valid. United States v. Bogie, 2012 U.S. Dist. LEXIS 57831 (D. Vt. April 25, 2012).*

The trial court did not err in crediting defendant’s statement to the officer that he consented and a search warrant was not required. State v. Wright, 2012 Ohio 1809, 2012 Ohio App. LEXIS 1587 (5th Dist. April 23, 2012).*

Just because defendant had a state ID card with the address of the place searched doesn’t mean that he had standing. It is a factor, but it isn’t determinative. Here, the USMJ’s conclusion of no standing was supported by the record. United States v. Langford, 2012 U.S. Dist. LEXIS 57894 (N.D. Ga. April 24, 2012).

Stop of bus at a border checkpoint also involved a stop of a Jeep following the bus. They were suspected to be traveling together, and a few facts were confirmed which drew that reasonable conclusion, and there was reasonable suspicion. United States v. Finley, 2012 U.S. Dist. LEXIS 57926 (S.D. Tex. April 25, 2012).*

An IP address was associated with accessing child pornography, and it tied to an address. The police investigated the address and linked defendant to it. There was a substantial basis for issuance of the search warrant for the premises by the link of the IP address. United States v. Wunderli, 2012 U.S. Dist. LEXIS 57964 (E.D. Mo. March 27, 2012).*

Richmond Times Dispatch: Police to end ‘wake-up calls’ effort by Reed Williams:

One day after a civil liberties group blasted the Richmond Police Department for knocking on doors late at night to tell residents they are at risk of car break-ins, the department said it’s ending the practice next week.

Since when has any police group cared what any “civil liberties group” thinks? This is more fundamental a realization.

HuffPo: TSA Defends Pat-Down Of Crying 4-Year-Old Girl At Kansas Airport by Roxana Hegeman:

WICHITA, Kan. — The grandmother of a 4-year-old girl who became hysterical during a security screening at a Kansas airport said Wednesday that the child was forced to undergo a pat-down after hugging her, with security agents yelling and calling the crying girl an uncooperative suspect.

The incident has been garnering increasing media and online attention since the child’s mother, Michelle Brademeyer of Montana, detailed the ordeal in a public Facebook post last week. The Transportation Security Administration is defending its agents, despite new procedures aimed at reducing pat-downs of children.

The child’s grandmother, Lori Croft, told The Associated Press that Brademeyer and her daughter, Isabella, initially passed through security at the Wichita airport without incident. The girl then ran over to briefly hug Croft, who was awaiting a pat-down after tripping the alarm, and that’s when TSA agents insisted the girl undergo a physical pat-down.

Isabella had just learned about “stranger danger” at school, her grandmother said, adding that the girl was afraid and unsure about what was going on.

New Law Review article: A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases by David H. Kaye on SSRN. Abstract:

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for analyzing the constitutionality of databases of biometric data. It demonstrates that the opinions on DNA collection before conviction have lost sight of the foundations of balancing tests in Fourth Amendment analysis. It argues that balancing is acceptable only for “special needs” or “administrative search” cases, or for defining new exceptions to the warrant requirement of the Fourth Amendment. The Article examines how DNA collection before conviction might be brought under the traditional special-needs doctrine and how it might fit within a new, but coherent exception for certain forms of biometric data. This framework permits the courts to analyze DNA databases without diluting the protections guaranteed by the Fourth Amendment, and it provides a sound rationale for the current law on arrestee fingerprinting.

The Republic: Group questions constitutionality of middle-of-the-night ‘wake up calls’ by Richmond police by Larry O’Dell:

Richmond police are violating residents’ constitutional rights by waking them in the middle of the night with a knock on the door to admonish them for leaving valuables in plain sight in their parked cars, a civil liberties group said Wednesday.

The Charlottesville-based Rutherford Institute said in a letter to Police Chief Bryan Norwood that the department’s new “Wake Up Call” initiative invades residents’ privacy and infringes on their Fourth Amendment right to be free of unreasonable police intrusions. The program also heightens the risk of a violent confrontation between police and an alarmed resident, the institute said.

“The recent Trayvon Martin incident from Florida should serve as a stark warning of how the fear and misunderstanding of a homeowner can turn a benign situation into tragedy involving loss of life,” John W. Whitehead, executive director of the Rutherford Institute, wrote in the letter.

Law.com: Ohio Court Addresses Text Messages and the Fourth Amendment by Joshua A. Enge:

The question of who can challenge a search of cell phone records was before an Ohio court on Aug. [sic: April] 13. The case, from the Court of Appeals of Ohio, Sixth District, is State v. Young.

This case started with a missing 17-year-old girl. The police began to suspect that the defendant knew where she was. So they obtained his cell phone records from Verizon Wireless, by submitting a single page Emergency Request Form. The police also obtained the 17-year-old girl’s cell phone records with the consent of her mother.

Arrest outside the threshold of the home led to invalid protective sweep of the house. The officers failed to articulate any facts or reason to justify going in the house. United States v. Barsoum, 2012 U.S. Dist. LEXIS 56218 (M.D. Fla. April 5, 2012):

Against these standards, the government offers nothing to suggest the Defendant or anyone in the residence (his family) likely posed a danger to the agents, and certainly nothing that a reasonably prudent officer would accept. Instead, the main reason the government seemingly gives is that the agents took the Defendant inside to avoid the rainy morning and to offer him the opportunity to put on some clothes and shoes. Frankly, I find another reason is more obvious. As Agent Zdrojewski admitted, he wanted to secure the Defendant’s consent to search his house. Indeed, he specifically chose that location for the Defendant’s arrest, as opposed to the pharmacy, to increase his odds that he could search the residence.11 Because I find the government has failed to meet its burden under Buie, I find the agents’ entry into the Defendant’s house and their subsequent protective sweep illegal.

11 I do not suggest that this tactic is illegal; on the contrary, the approach is commonplace. But as Payton and Buie make clear, an arrest warrant and a search warrant are not synonymous. Without a search warrant, the government must present an exception to the warrant requirement.

BLT: Does Gant prohibit search incident in DUI cases? D.C. Appeals Court Weighs Warrantless Car Searches:

The District of Columbia Court of Appeals heard arguments this morning on when it’s still lawful for local police to search a car without a warrant after making a lawful arrest.

The U.S. Supreme Court tried to limit those types of searches in its 2009 decision in Arizona v. Gant. The high court did carve out some exceptions, though, which included searches where police have “reason to believe” they might find evidence of the crime.

Almost all the precedent since Gant says yes.