In plaintiff’s malicious prosecution claim based on an alleged illegal search, the discovery of a gun on plaintiff’s person was probable cause to arrest. This was on a motion to reconsider and there was no notice of appeal timely filed from the original order. Cyrus v. City of New York, 450 Fed. Appx. 24 (2d Cir. 2011)*:

The district court held on both the initial motion for summary judgment and on the motion for reconsideration that the discovery of the weapon on plaintiff’s person gave rise to probable cause to prosecute the weapons charge. Even assuming that plaintiff’s arrest was unlawful, the district court concluded that the exclusionary rule does not apply to § 1983 claims and therefore the gun would be admissible to determine probable cause in the civil action. See, e.g., Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999) (“No Fourth Amendment value would be served if [plaintiff], who illegally possessed firearms and narcotics, reaps the financial benefit he seeks. [Plaintiff] has already reaped an enormous benefit by reason of the illegal seizure and search to which he was subjected: his freedom, achieved by the suppression of evidence obtained in violation of the Fourth Amendment.” (footnote omitted)); ….

ICE did an audit of meat processing plant workers and found that about two dozen employees had submitted I-9 identification that was in the FTC database for identity theft. Interrogating the workers was not a Fourth Amendment seizure. United States v. Flores, 2012 U.S. Dist. LEXIS 19272 (D. Neb. February 16, 2012):

The systematic questioning of employees at a workplace is not a seizure because “[o]rdinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers’ voluntary obligations to their employers” and “most workers could have had no reasonable fear that they would be detained upon leaving.” [INS v. Delgado, 466 U.S. 210,] at 218-19 [(1984)]. Under the Fourth Amendment, when officers have no basis for suspecting a particular individual, they may generally ask questions of the individual and ask to examine the individual’s identification. Id. at 216; United States v. Escobar, 389 F.3d 781, 786 (8th Cir. 2004). Police may not, however, convey a message that compliance with their requests is required. Florida v. Bostick, 501 U.S. 429, 435 (1991).

Accord: United States v. Mejia-Flores, 2012 U.S. Dist. LEXIS 19272 (D. Neb. February 16, 2012).*

Since the evidence before the trial court was not conflicting that there was consent, the appellate court was bound by that finding. Hernandez v. State, 280 So. 3d 416 (Fla. 4th DCA 2012).*

Reason: 7 Rules for Recording Police, Courts are expanding rights but cops are cracking down. Find out how to keep your footage, and yourself, out of trouble by Steve Silverman:

Last week the City of Boston agreed to pay Simon Glik $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his 2007 felony arrest for videotaping police roughing up a suspect. Prior to the settlement, the First Circuit Court of Appeals unanimously ruled that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The Boston Police Department now explicitly instructs its officers not to arrest citizens openly recording them in public.

Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you’re an aspiring cop watcher you must be uniquely prepared to deal with hostile cops.

Sixteen hour warrantless seizure of a FedEx package in transit for a dog sniff was unreasonable. The government directed FedEx to hold it, and that made FedEx its agent. (The government stipulated to one defendant’s standing, but it certainly appears to the court that she doesn’t have any. (n.1)) United States v. Poor, 2012 U.S. Dist. LEXIS 48292 (E.D. Ky. March 9, 2012):

Here, law enforcement directed FedEx to act by holding the parcels on March 2. The question then becomes whether FedEx’s intent in complying was “entirely independent of the government’s intent to collect evidence for use in a criminal prosecution.” Howard, 752 F.2d at 227-28, vacated on other grounds, 770 F.2d 57, 62 (6th Cir. 1985)); see United States v. Jones, 2011 WL 5967230, at *2 (W.D. Tenn.) (identifying factors as whether police “‘instigated, encouraged, or participated'” in search and whether “‘individual … engaged in the search with the intent of assisting the police'” (quoting United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985))). The Fourth Amendment does not apply if a private actor is “not acting as an agent of the Government or with the participation or knowledge of any government official.” United States v. Jacobsen, 104 S. Ct. at 1652, 1656 (1984) (citation and internal quotation marks omitted). The burden of proving agency generally falls on the defendant. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (citation omitted). Here, Hart’s own testimony clearly establishes the agency relationship.

New law review article: A Spectacular Non Sequitur: The Supreme Court’s Contemporary Fourth Amendment Exclusionary Rule Jurisprudence by David C. Gray on SSRN and forthcoming in American Criminal Law Review. Abstract:

Much of the Supreme Court’s contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H.L.A. Hart described in another context as a “spectacular non sequitur.” That path to irrelevance is paved by the Court’s recent insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers. This deterrence-only approach ignores or rejects more principled justifications that inspired the rule at its genesis and have sustained it through the majority of its history and development. More worrisome, however, is the conceptual insufficiency of deterrence considerations alone to justify core components of the Court’s Fourth Amendment exclusionary rule doctrine, including the good faith exception, the cause requirement, and the requirement to show standing. That conceptual deficit has produced an opaque body of doctrine that is often incoherent and always speculative and unpredictable. Faced with these results, the Court has two options. First, it can abandon almost a century of doctrine in favor of a dramatically expanded exclusionary rule cut loose from general rules and exceptions; or, second, the Court can preserve the bulk of its Fourth Amendment exclusionary rule jurisprudence by adopting a hybrid theory of the exclusionary rule that embraces retributive principles. This Article argues for the latter course and explores the consequences. Principal among them is that the Court must accept the exclusionary rule as the natural and necessary sanction for Fourth Amendment violations rather than a contingently justified judicial doctrine. Although some Justices and their academic supporters may think this a steep price to pay, this Article argues that the costs are more than justified by the rewards of doctrinal coherence, added clarity, and predictability.

The I-19 checkpoint south of Tucson is a constitutional immigration checkpoint per the Ninth Circuit. Occasionally vehicles are “flushed” through the checkpoint as vehicles build up. When that happens, that does not change the legal standard of suspicion necessary to stop a vehicle for an immigration check. Also, the fact all the officers working the checkpoint are cross-designated as drug officers does not make the checkpoint unconstitutional, despite the fact that 300-400 drug smuggling cases are made there a year. United States v. Ruiz-Perez, 2012 U.S. Dist. LEXIS 44505 (D. Ariz. March 30, 2012), R&R 2011 U.S. Dist. LEXIS 154502 (D. Ariz. October 6, 2011):

Agent Kouris’ subjective belief that Defendant’s vehicle may be smuggling drugs does not affect the analysis of the reasonableness of the stop. Although subjective intent has been considered in evaluating the subjective intrusiveness of a checkpoint stop, the key consideration is the subjective belief of the traveler, not the officer. See e.g. United States v. Hawkins, 249 F.3d 867, 874 (9thCir. 2001) (stating “in some instances, the failure to stop every vehicle could raise concerns over subjective intrusiveness,” but finding no Fourth Amendment violation where Defendant was not treated differently from other drivers and no law-abiding motorist would have been unduly surprised or afraid because of this stop). In fact, the Supreme Court has indicated that some discretion and motive is inherent and permissible in routine checkpoint operations. …

Defendant’s consent was voluntary, with the court evaluating numerous factors. Also, defendant signed a written consent. It was after a protective sweep. United States v. Salgado, 2012 U.S. Dist. LEXIS 44682 (N.D. Ga. March 12, 2012).*

Police responded to a shooting call, and defendant was outside being patted down and handcuffed saying, “Just help him. Help him,” referring to his adult son Brian Chapman in the house who was shot. The first responders entered and also did a protective sweep for other possible injured, and they saw evidence in plain view. Those officers left briefly, but second responders were called to process the scene. They could enter the premises under the original consent. “California decisions uphold an officer’s reentry to seize evidence observed in plain view during a lawful entry but not seized initially because the officer was performing a duty that took priority over the seizure of evidence.” The reentry was valid, and the trial court erred in suppressing the second entry. People v. Superior Court, 2012 Cal. App. LEXIS 369 (2d Dist. March 29, 2012).

Iraq solder was injured by an IED and evacuated stateside for recovery. When he was unconscious, his belongings were inventoried for shipment back with him, and child pornography was found. He was court martialed after recovery at Fort Drum. The inventory was valid under regulation for the injured and dead and MRE 313(c). United States v. Kelly, 2012 CCA LEXIS 103 (Army Ct. Crim. App. March 27, 2012) (unpublished).*

SCOTUS to the People: “Lift ’em and spread ’em.”

The Fourth Amendment does not require jail officials to have reasonable suspicion that a person arrested for a minor offense possesses a concealed weapon or other contraband in order to subject him to a routine strip search prior to introducing him into the general jail population. (per BNA) Florence v. Board of Chosen Freeholders of County of Burlington, 2012 U.S. LEXIS 2712 (April 2, 2012) (5-4):

JUSTICE KENNEDY delivered the opinion of the Court, except as to Part IV, concluding that the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions, and thus the Fourth and Fourteenth Amendments do not require adoption of the framework and rules petitioner proposes. Pp. 5-18, 19.

(a) Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems. A regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U. S. 78, 89. This Court, in Bell v. Wolfish, 441 U. S. 520, 558, upheld a rule requiring pretrial detainees in federal correctional facilities “to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution[s],” deferring to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items.In Block v. Rutherford, 468 U. S. 576, 586-587, the Court upheld a general ban on contact visits in a county jail, noting the smuggling threat posed by such visits and the difficulty of carving out exceptions for certain detainees. The Court, in Hudson v. Palmer, 468 U. S. 517, 522-523, also recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions when it upheld the constitutionality of random searches of inmate lockers and cells even without suspicion that an inmate is concealing a prohibited item. These cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities, and that “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters,” Block, supra, at 584–585. Persons arrested for minor offenses may be among the detainees to be processed at jails. See Atwater v. Lago Vista, 532 U. S. 318, 354. Pp. 5-9.

(b) The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of new inmates creates risks for staff, the existing detainee population, and the new detainees themselves. Officials therefore must screen for contagious infections and for wounds or injuries requiring immediate medical attention. It may be difficult to identify and treat medical problems until detainees remove their clothes for a visual inspection. Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process. Additionally, correctional officials have to detect weapons, drugs, alcohol, and other prohibited items new detainees may possess. Drugs can make inmates aggressive toward officers or each other, and drug trading can lead to violent confrontations. Contraband has value in a jail’s culture and underground economy, and competition for scarce goods can lead to violence, extortion, and disorder. Pp. 9-13.

(c) Petitioner’s proposal that new detainees not arrested for serious crimes or for offenses involving weapons or drugs be exempt from invasive searches unless they give officers a particular reason to suspect them of hiding contraband is unworkable. The seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption. Even persons arrested for a minor offense may be coerced by others into concealing contraband. Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility.

It also may be difficult to classify inmates by their current and prior offenses before the intake search. Jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity. The officers conducting an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete. Even with accurate information, officers would encounter serious implementation difficulties. They would be required to determine quickly whether any underlying offenses were serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics of individual detainees also might prove to be unworkable or even give rise to charges of discriminatory application. To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population. While the restrictions petitioner suggests would limit the intrusion on the privacy of some detainees, it would be at the risk of increased danger to everyone in the facility, including the less serious offenders. The Fourth and Fourteenth Amendments do not require adoption of the proposed framework. Pp. 13-18, 19.

KENNEDY, J., delivered the opinion of the Court, except as to Part IV. ROBERTS, C. J., and SCALIA and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to all but Part IV. ROBERTS, C. J., and ALITO, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

This serves utterly no purpose other than to humiliate minor offenders. It will lead some state courts to find their state constitutions provide more protection. I thought Lago Vista was wrong; this just compounds that error. See HuffPo: Lift ‘Em and Spread ‘Em: High Court Greenlights Search Without Suspicion; NYTimes: Justices Approve Strip-Searches for Any Offense.

Because of the following story, NYC can now humiliate more minor offenders by strip searching them for the hell of it.

The great irony of Florence is that Mr. Florence was strip searched when jailed because of an erroneous record of an unpaid ticket. If his car was searched, he’d have no recourse there, either, because the erroneous record isn’t subject to the exclusionary rule. So, what remedy do the people have to protect against careless police and officious bureaucrats who just don’t care that you were arrested and searched based on wrong information, but allegedly in good faith? Apparently none, now.

The stop of two vehicles traveling together did not give each standing to challenge the stop of the other. As to one, the stop was invalid and suppressed, but not the other. United States v. Peters, 2012 U.S. Dist. LEXIS 46977 (S.D. Ind. April 03, 2012):

When law enforcement conducts a traffic stop of a vehicle, both the driver of the vehicle and its passengers may challenge the legality of the stop. Brendlin v. California, 551 U.S. 249, 251 (2007). Accordingly, as passengers in the respective vehicles, Mr. Holmes can challenge the stop of the Denali, and Mr. Peters can challenge the stop of the Scion.

Unlike Mr. Holmes, [dkt. 153 at 10], Mr. Peters contends that because the Scion and the Denali were traveling together, the occupants of each vehicle can challenge the search of the other vehicle, too, [dkt. 151 at 6-7]. Neither Mr. Peters nor the Government could direct the Court to any authority directly on point. Nonetheless, the Court’s own research has revealed authority from the Seventh Circuit that, by analogy, requires the Court to reject Mr. Peters’ claim. If absent owners of vehicles cannot challenge the search of their vehicles because “the intrusion a vehicle stop causes is personal to those in the car when it occurs,” United States v. Powell, 929 F.2d 1190, 1195 (7th Cir. 1991), mere passengers in a separate vehicle in a convoy would likewise lack the ability to raise a constitutional claim about the stopped vehicle.

Geekosystem: FBI Can’t Crack Pimp’s Phone’s Pattern Lock, Serves Google With Warrant by James Plafke:

The FBI secured a pimp’s Samsung Android phone as part of a case following a former pimp released on parole who seemed to be partaking in pimping activities once again, specifically through the use of his Android phone. The pimp previously signed a Fourth Amendment search rights waiver, which allowed the FBI to search his home and property at any time without a court order. When he turned over his phone, he didn’t unlock the device, even though his parole conditions prevented him from hiding or locking digital files, but claimed the phone belonged to his sister. Amusingly, the FBI couldn’t crack the phone’s unlock pattern, and then served a warrant to Google, Android’s developer, to help them unlock the phone.

The FBI obtained a warrant to search the phone last month, but weren’t able to crack it due to the phone’s swipe password lock, which can actually be easily defeated — either by simply looking at the smudges on the phone’s screen, or because you’re the FBI and should have access to a variety of cracking tools and skilled employees who know how to use them. The FBI attempted the password too many times, which locked the phone, which in turn could only be unlocked using the phone owner’s Google account credentials. As you could imagine, the pimp refused to cooperate, so the FBI served Google with a warrant in order to get the Android developers to help out.

This is the logical step. See ZDnet.com: “Woman who pleaded Fifth in password case now citing Fourth”. If the owner of the phone can plead the Fifth, then the government has to attempt to use a search warrant to get into the phone.

Failure to file a suppression motion is not a ground for IAC without showing how it would have been granted. Just alleging one wasn’t filed doesn’t cut it. People v. Johnson, 2012 Mich. App. LEXIS 519 (March 20, 2012).*

Defendant’s claim defense counsel was ineffective for not moving to quash the arrest warrant fails because there was clearly probable cause. People v. Lambert, 2012 Mich. App. LEXIS 499 (March 20, 2012).*

The CI was not shown to be reliable except by corroboration by an “extensive” police investigation, and that was adequate. The triggering conditions of the anticipatory warrant here satisfied Grubbs. United States v. Donnell, 2012 U.S. Dist. LEXIS 36487 (D. Minn. February 2, 2012).*

Pro se prison inmate’s § 1983 case “alleged that he was subjected to strip and visual body cavity searches in the presence of female prison employees in violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments.” He stated no claim under the Eighth Amendment but he did under the Fourth: “Accepting Waddleton’s allegations as true, which we must, … there was no justification, penological or otherwise, for the searches conducted in this case.” Waddleton v. Jackson, 445 Fed. Appx. 808 (5th Cir. 2011).

An officer who saw an apparently hand-to-hand transaction between a group of three men and an SUV that pulled up and left had reasonable suspicion to stop them on the street. State v. Keller, 77 So. 3d 378 (La. App. 5th Cir. 2011).*

Running from the police with gun in hand is reasonable suspicion. State v. Cummings, 79 So. 3d 386 (La. App. 5th Cir. 2011).*

The affidavit for the search warrant showed probable cause based on information from the CI which was significantly corroborated and defendant’s criminal history and outstanding warrants. State v. Voltolina, 77 So. 3d 1027 (La. App. 5th Cir. 2011).*

Officers did a protective sweep and walk through of defendant’s premises, and the exigencies ended. The officers made a second entry to photograph the interior, and this was merely documenting what they saw in the walk through. Carmen v. State, 358 S.W.3d 285 (Tex. App.—Houston (1st Dist.) 2011).*

During the stop , the officer learned from another officer that defendant used false identification. Based on the real name, there was reasonable suspicion defendant was armed. United States v. Stoltz, 2011 U.S. Dist. LEXIS 69828 (D. Minn. June 3, 2011).*

“If we assume, without deciding but for purposes of our analysis here, that a PBT is a ‘search’ pursuant to the Fourth Amendment, and we also assume for the purposes of this argument that appellant’s voluntary consent is required in order for the search to be a valid warrantless search, we believe the evidence in the record supports a finding that appellant voluntarily consented to the PBT. [*P24]” City of Columbus v. Shepherd, 2011 Ohio 3302, 2011 Ohio App. LEXIS 2768 (10th Dist. June 30, 2011).*

The attenuation doctrine of unlawful arrest and a confession is not inconsistent with the Washington Constitution. Here, there was a break and the confession was admissible. State v. Eserjose, 171 Wn. 2d 907 (2011) (dissent).*

Defendant consented twice after Miranda warnings were given, and that supports the district court’s finding of consent. United States v. Dotson, 449 Fed. Appx. 450, 2011 FED App. 0803N (6th Cir. 2011) (unpublished).*

Arguments over what the video showed or didn’t show essentially were credibility questions already resolved by the trial court against him. State v. Collins, 2011 Ohio 6187, 2011 Ohio App. LEXIS 5061 (6th Dist. December 2, 2011).*

Employees of a recently robbed restaurant saw a man they described to the police as lurking near the back door at 3 am. The police stopped defendant matching that description, and that was with reasonable suspicion of a potential robbery. Johnson v. State, 313 Ga. App. 137, 720 S.E.2d 654 (2011).*

Proctoscopic examination under sedation in search warrant for drugs in the rectum was unreasonable, but the good faith exception makes it valid. United States v. Gray, 669 F.3d 556 (5th Cir. 2012):

“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767 (1966). This case forces us to balance this fundamental interest in a person’s bodily integrity and dignity against the significant need of law enforcement officers to unearth evidence of crime. Specifically, the Appellant Rondrick Gray was forced to undergo a proctoscopic examination under sedation pursuant to a warrant obtained on the police’s belief that he was concealing crack cocaine in his rectum. Weighing the competing interests, we find that the search was unreasonable but that the evidence should not be suppressed because the police acted in good-faith reliance on a valid search warrant. Accordingly, we AFFIRM.

. . .

Applying the Winston factors to the present case, the magnitude/danger of the proctoscopy appears to be slight. Though the testimony reveals that there was some risk of respiratory depression or arrest associated with the sedatives administered and risk of anal bleeding or perforation associated with the use of the proctoscope, these risks were low in the hospital setting where the proctoscopy occurred. The risks here are obviously greater than the blood draw found permissible in Schmerber, 384 U.S. at 771 (allowing a blood draw to determine the blood alcohol level of a drunk driver), but they do not seem to rise to the level of the risks associated with the surgery found unreasonable in Winston, 470 U.S. 763-65.

On the extent of the intrusion factor, Gray argues that “[s]hy of full-on exploratory surgery [like in Winston], it is hard to imagine a more demeaning and intrusive invasion of Gray’s interests” in personal privacy and bodily integrity. Br. of Defendant—Appellant at 29. This is an understatement: the proctoscopy here was a greater affront to Gray’s dignitary interest than full-on exploratory surgery. Though sedated, Gray was conscious throughout the entire procedure. Moreover, the procedure targeted an area of the body that is highly personal and private. In our society, the thought of medical technicians, under the direction of police officers, involuntarily sedating and anally probing a conscious person is jarring. Such a procedure is degrading to the person being probed—both from his perspective and society’s. This type of search resembles the physical vaginal cavity search that the First Circuit encountered in Rodriques v. Furtado, 950 F.2d 805 (1st Cir. 1991). … [¶] In taking both of the individual interests into account, the magnitude of the intrusion from the proctoscopy was minimal, but the extent of intrusion from the proctoscopy was great.

Society’s interest here, like in Winston, is “of great importance.” Winston, 470 U.S. at 762. The interest is even greater than in Winston, where there was other evidence of guilt, id., because the crack cocaine that Hethcock believed Gray was concealing in his anal cavity was the only direct evidence of Gray’s possession. Unlike in Schmerber or Winston, however, there were other available avenues for obtaining this evidence, such as a cathartic or an enema. Such alternatives militate against society’s great interest “in conducting the procedure” used in this case—proctoscopy. Id. at 760 (emphasis added).

When balancing these interests and comparing them to our benchmarks of the permissible Schmerber blood draw and the impermissible Winston surgery, the medical danger here is slightly greater than in the former but nowhere near the danger of the latter. As to the dignitary interest, this is one of the greatest dignitary intrusions that could flow from a medical procedure?involuntary sedation for an anal probe where the person remains conscious. The last consideration is society’s interests, which are not as great as in Schmerber but greater than in Winston. On balance, we find the proctoscopic search unreasonable due to the exceeding affront to Gray’s dignitary interest and society’s diminished interest in that specific procedure in light of other less invasive means.

Apparently the good faith exception always trumps reasonableness? This is an issue SCOTUS should take as a potential conflict with Winston, but I have no confidence in how it will come out. I personally think the court downplayed the comparison to Winston too much.

A warrant for child pornography on defendant’s computer was based on probable cause from a report from a user who saw it. The warrant was to “seize,” and that included “search.” United States v. Evers, 669 F.3d 645, 2012 FED App. 0042P (6th Cir. 2012):

The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a “sufficient chance of finding some needles in the computer haystack.” Upham, 168 F.3d at 535; see also United States v. Grimmett, 439 F.3d 1263, 1268-70 (10th Cir. 2006) (holding that a warrant for the search of “any and all” computer hardware and software for child pornography authorized both the seizure and subsequent search of the defendant’s computer files); Guest, 255 F.3d at 335 (“Because of the technical difficulties of conducting a computer search in a suspect’s home, the seizure of the computers, including their content, was reasonable in [this] case[] to allow police to locate the offending files.”); Upham, 168 F.3d at 535 (“As a practical matter, the seizure and subsequent off-premises search of the computer … was about the narrowest definable search and seizure reasonably likely to obtain the images [of the child pornography sought].”).

Moreover, a second warrant to search a properly seized computer is not necessary “where the evidence obtained in the search did not exceed the probable cause articulated in the original warrant.” Richards, 659 F.3d at 539 n.10 (citing United States v. Gregoire, 638 F.3d 962, 967-68 (8th Cir. 2011); Grimmett, 439 F.3d at 1268-69; Upham, 168 F.3d at 535; and United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998)). This is in keeping with the general principle that “even evidence not described in a search warrant may be seized if it is reasonably related to the offense which formed the basis for the search warrant.” United States v. Wright, 343 F.3d 849, 863 (6th Cir. 2003) (citations and internal quotation marks omitted); see also United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988) (“A search does not become invalid merely because some items not covered by a warrant are seized.”).

Defendant in his § 2255 failed to adequately support his claim that his defense lawyer failed to properly advise him of the quality of his Fourth Amendment claim that was waived in his guilty plea. United States v. Ferguson, 669 F.3d 756, 2012 FED App. 0055P (6th Cir. 2012):

Ferguson argues that the failure of his trial counsel to advise him about the viability of his Fourth Amendment claim when pleading guilty and to preserve the right to appeal the denial of the suppression motion constitutes obviously deficient performance that is apparent on the record. Ferguson bases this argument on his assertion that his suppression challenge is meritorious and dispositive. In short, he argues that the failure of his trial counsel to appreciate the strength of Ferguson’s position on the suppression issue, to preserve it for appeal, and to advise Ferguson of the possibility of entering a conditional plea, constitutes clearly deficient performance resulting in prejudice because in the absence of such alleged errors there is a reasonable probability that Ferguson would not have entered an unconditional guilty plea.

We find the record insufficiently developed to support Ferguson’s claim of ineffective assistance of counsel. The record is devoid of information regarding the discussions Ferguson had with his counsel regarding the plea agreement. There is also scant information in the record to illuminate whether it might have been sound strategy for defense counsel to allow Ferguson to enter an unconditional plea. What the record does indicate is that defense counsel and the government negotiated a plea agreement that significantly reduced Ferguson’s potential sentencing exposure. The maximum sentence for violating 18 U.S.C. § 2252A(a)(5)(B) is ten years’ imprisonment with a possible lifetime term of supervised release. Pursuant to the plea agreement, the Sentencing Guidelines range recommended to the district court based on the stipulated Guideline computations for an adjusted offense level of 17 and criminal history category of I was 24 to 30 months. This range was substantially lower than the recommended Guideline range calculated in the Presentence Investigation Report (“PSR”), which would have exposed Ferguson to a potential sentence of 46 to 57 months. Whether this favorable plea agreement would not have been offered to Ferguson if he had entered a conditional plea is unknown. In light of the limited record on direct appeal, we have “no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel’s alternatives were even worse.” Massaro, 538 U.S. at 505. Nor can we “ascertain whether the alleged error was prejudicial” without further factual development. Id. Thus, in light of the limited record regarding “the preparation of [Ferguson’s] trial counsel or his communications with [Ferguson] about this … issue,” it is more appropriately raised in the first instance in post-conviction proceedings. See United States v. Bradley, 400 F.3d 459, 461-62 (6th Cir. 2005).

Officers looking for a fugitive were on the “Johnson properties.” It was common knowledge in the community that two houses nearby were the “Johnson property,” and one person’s consent to search the “Johnson properties” reasonably was believed to include both buildings. The officers were lawfully there in the first place. State v. Johnson, 2010 Tenn. Crim. App. LEXIS 614 (July 22, 2010).*

In a DUI case, where the officer testified that he wasn’t sure who took the blood sample, and under statute only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or a LEO, it was a credibility determination against the state, and suppression was affirmed. State v. Robinson, 325 S.W.3d 212 (Tex. App. – Waco 2010), Petition for discretionary review granted by State v. Robinson, 2010 Tex. Crim. App. LEXIS
1353 (Tex. Crim. App., Oct. 20, 2010).*

The officer spoke to defendant in English, getting no response. So he spoke Spanish and defendant spoke to him. He asked if he could “take a look” and defendant agreed and was found to have consented. State v. Medina, 205 N.C. App. 683, 697 S.E.2d 401 (2010).*

Defendant’s claim that defense counsel was ineffective for not arguing that the search warrant specify the crime under investigation fails. Rule 41(e) does not require that, and it was amended out in 1972. His claim that the warrant have “scrupulous exactitude” comes from First Amendment implicating search warrants, Stanford v. Texas. Hale v. United States, 2010 U.S. Dist. LEXIS 73604 (N.D. Ill. July 22, 2010).*

Despite the broader protection of the state constitution, a parole violation arrest warrant does not have to be issued only by a “neutral and detached magistrate” under the state constitution, and the trial court erred in holding that even the Fourth Amendment required it. As in every other state, the parole system itself can issue the warrant, if on reasonable suspicion of a violation. State v. Olson, 164 Wn. App. 187, 262 P.3d 828 (2011), surveying the law nationwide:

¶8 A great number of states have statutes equivalent to Washington’s that permit a parole board or parole officer to issue an arrest warrant due to an offender’s parole violation. And courts throughout the country have routinely upheld the constitutionality of statutes that do not require an arrest warrant to be issued under oath or affirmation and by a neutral magistrate. (footnotes omitted)

The money in this case was seized under a search warrant for drugs, and the defendant ultimately prevailed on appeal and reversed his conviction. Yet, he loses the forfeiture because he can’t prove the money was his. City of Walla Walla v. $401,333.44, 164 Wn. App. 236, 262 P.3d 1239 (2011).*

Defendant’s stop was on reasonable suspicion, and the fact he was determined on booking to be an alien unlawfully in the U.S. would not be suppressed. United States v. Rosas-Herrera, 816 F. Supp. 2d 273 (M.D. N.C. 2011).*

Officers came in three cars to conduct a knock and talk about stolen firearms. Outside defendant’s house, they conducted a patdown and had consent to search his vehicle. The search of his garage was permissible as a protective sweep because of recently fired shell casings outside the garage and defendant’s ambiguous comment that somebody else might be inside. United States v. Cunnagin, 2011 U.S. Dist. LEXIS 103504 (E.D. Ky. September 13, 2011).*

Officers who entered plaintiffs’ house and took custody of children were not violating clearly established law when they did so, so they get qualified immunity. Loudermilk v. Danner, 449 Fed. Appx. 693 (9th Cir. 2011) (unpublished)*:

… Under this court’s clearly established law, a reasonable police officer would not have known that it was coercive to explain that taking temporary custody of the Loudermilks’ children under Arizona law was a “viable option,” given that (1) the MCSO Officers had reason to believe probable cause existed to take custody of the children under Ariz. Rev. Stat. § 8-821, and (2) the condition of the home was consistent with the anonymous tip which alleged the home construction was incomplete and had exposed wiring dangerous to children. …

If defendant were a passive mere passenger in a car, they officers would not have had reasonable suspicion for him. Here, however, they had furtive movements and that was sufficient. United States v. Rollins, 2011 U.S. Dist. LEXIS 103331 (M.D. Fla. September 13, 2011).*