NYTimes Editorial: Examining Marijuana Arrests:

The New York State Legislature showed good sense when it exempted people convicted of low-level marijuana possession from having to submit DNA to the state database, unless they have been convicted of a previous crime. Still, the state must do more to curb the arrests of tens of thousands of people each year in New York City for minor possession of marijuana, despite a 1977 state law that decriminalized it.

PolitiFact Florida: Are lawmakers protected by First Amendment against drug testing? by Katie Sanders:

Miami Herald columnist Carl Hiaasen torched Florida lawmakers for passing a drug-testing bill for state workers that excluded one class of government employees: the elected officials who passed the law.

Hiaasen took particular issue with the proposal’s House sponsor Rep. Jimmie Smith, a Republican from Lecanto, and his explanation why the law excludes Gov. Rick Scott and legislators.

“It was found to be unconstitutional to drug test elected officials because it prevents us, as citizens, from having that First Amendment right,” Smith said.

Smith’s defense is novel — and wrong, it turns out.

Not just wrong: Off the wall. A de jure “speech and debate” defense to drug testing? Come on: That doesn’t even pass the laugh test.

Volokh Conspiracy: Magistrate Judge Rejects Mosaic Theory of Fourth Amendment For Cell-Site Information by Orin Kerr:

I have posted the short opinion (dated March 23) from Magistrate Judge Collings of the District of Massachusetts here. It largely adopts the reasoning of United States v. Graham from the District of Maryland, which I blogged about here. In my view, Judge Collings was correct to issue the order without probable cause for a second reason: The Fourth Amendment questions are not yet ripe for review, as I argue in this amicus brief I filed recently in the Fifth Circuit.

HuffPo: Illinois Traffic Stop Of Star Trek Fans Raises Concerns About Drug Searches, Police Dogs, Bad Cops by Radley Balko:

Last December, filmmaker Terrance Huff and his friend Jon Seaton were returning to Ohio after attending a “Star Trek” convention in St. Louis. As they passed through a small town in Illinois, a police officer, Michael Reichert, pulled Huff’s red PT Cruiser over to the side of the road, allegedly for an unsafe lane change. Over the next hour, Reichert interrogated the two men, employing a variety of police tactics civil rights attorneys say were aimed at tricking them into giving up their Fourth Amendment rights. Reichert conducted a sweep of Huff’s car with a K-9 dog, then searched Huff’s car by hand. Ultimately, he sent Huff and Seaton on their way with a warning.

Earlier this month, Huff posted to YouTube audio and video footage of the stop taken from Reichert’s dashboard camera. No shots were fired in the incident. No one was beaten, arrested or even handcuffed. Reichert found no measurable amount of contraband in Huff’s car. But Huff’s 17-and-a-half minute video raises important questions about law enforcement and the criminal justice system, including the Fourth and Fifth Amendments, the drug war, profiling and why it’s so difficult to take problematic cops out of the police force.

The video: Breakfast in Collinsville (with Michael Richert), and its mostly from the POV of the police car. Pretty typical overbearing cop during an interstate stop who won’t take “I won’t consent” and “I want to go” for an answer. Finally he gets out the drug dog that doesn’t alert and then searches anyway. This is a really long article, but typical Balko: excellent coverage.

NYTimes Editorial: The Roberts Court Defines Itself:

For anyone who still thought legal conservatives are dedicated to judicial restraint, the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.

NYTimes.com: 538: Supreme Court May Be Most Conservative in Modern History by Nate Silver

If President Obama’s health care bill is stricken by the Supreme Court, liberals will take it as evidence of judicial overreach, or at least that the court has shifted far to the right. One statistical method for analyzing the Supreme Court, in fact, already finds that the current court is the most conservative since at least the 1930s.

…

As you can see from the chart, Mr. Martin and Mr. Quinn rate the current court (based on data up through late 2010) as the most conservative in their database based on the positioning of the median justice, the previous high having come in the early 1950s. Although Justice Kennedy is not extraordinarily conservative relative to all other justices who have served on the court, he is very conservative by the standards of the median justice, who has typically been more of a true moderate.

Statistics to measure justice? Why not. Nothing else works to measure.

NYTimes: Police Are Using Phone Tracking as a Routine Tool by Eric Licthblau:

Law enforcement tracking of cellphones, once the province mainly of federal agents, has grown into a powerful and widely used surveillance tool for local police officials as well, with hundreds of departments, large and small, often using it aggressively with little or no court oversight, new documents show.

The practice has become big business for cellphone companies, too, with a handful of carriers marketing a catalog of “surveillance fees” to police departments to determine a suspect’s location, trace phone calls and texts or provide other services. Some departments log dozens of traces a month for both emergencies and routine investigations.

Huffington Post: Illinois State Police Drug Dog Unit Analysis Shows Error Rate Between 28 and 74 Percent:

In the course of reporting on the traffic stop of Terrance Huff, HuffPost was able to obtain the reports of an Illinois State Police K-9 unit over an 11-month period in 2007 and 2008. An analysis of those reports shows that only 25.7 percent of the drug dog “alerts” resulted in police finding a measurable quantity of illicit drugs. Just 13 percent resulted in the recovery of more than 10 grams of marijuana, generally considered an amount for personal use, and 10.4 percent turned up enough drugs to charge the motorists or their passengers with at least one felony.

In all, the police dog conducted 252 “sniffs” over the 11-month period, resulting in 136 alerts. The U.S. Supreme Court has ruled that a drug dog’s alert is enough to establish probable cause for a warrantless search of a vehicle. Of the 136 alerts, 35 turned up a large enough quantity of drugs to merit an arrest, and 63 turned up what the police officer refers to as “shake,” or “residue.” The officer didn’t send any of those cases to a lab, so it’s difficult to know if what the officer found was actually drug residue or, as appears to have been the case in the search of Terrance Huff, likely something else. In 38 cases, or 27.9 percent of the times a dog alert gave cause for a more thorough search, the officer recorded finding no drugs at all. Still, in most of these cases, the officer still notes in the report that the driver or passengers looked to be under the influence of drugs or, somewhat improbably, admitted to him that they were regular drug users. Obviously, there’s no way to verify those claims.

Defendant’s turning from the officer and hiding hands was reasonable suspicion. Also, the former statute that required legal aliens to register guns but citizens not denied equal protection. There can be no Second Amendment distinction. State v. Ibrahim, 164 Wn. App. 503, 269 P.3d 292 (2011).*

Plaintiff had her pharmacy searched for dispensing hydrocodone without prescription, and the officers were alleged to have seized more than the warrant permitted. Charges against her were dismissed. While that may be true, the facts of each case are dependent on the situation, and it cannot be said that this warrant was executed unreasonably as a matter of law, so qualified immunity was properly granted. Gordon v. Beary, 444 Fed. Appx. 427 (11th Cir. 2011) (unpublished).*

The warrant for firearms and ammunition and documents showing any relationship between the defendant and another person was not overbroad, adopting the R&R without much explanation. United States v. Mock, 2011 U.S. Dist. LEXIS 124354 (E.D. Mo. October 27, 2011).*

Defendant consented to a search of his car and its trunk, but the officer opened a locked safe within the trunk from the key on the car key ring. This search violated the differently worded “private affairs” clause of the Washington Constitution because of the added layer of constitutional protection recognized there in locked places in cars. State v. Monaghan, 266 P.3d 222 (Wash. App. 2012):

¶20 As the supreme court recently stated in State v. Valdez, the first question in an inquiry under article 1, section 7, is whether the state action constitutes a disturbance of one’s private affairs. There is no dispute that the search of the trunk, as described in the above findings, constituted such a disturbance. Likewise, the search of the locked container, which is described in the above findings, also disturbed the private affairs of Monaghan.

¶21 As the trial court in this case correctly stated at the suppression hearing, the parties agreed that there was no request by either deputy to search the inside of the locked container. This is significant in Washington. In State v. Stroud, the supreme court gave “locking articles within a container” of a vehicle “additional privacy expectations” under article 1, section 7. This is in marked contrast to the federal standard under the Fourth Amendment, which permits a warrantless search of both locked and unlocked containers.

[Note: Few state constitutions read like Washington’s so this wouldn’t be much authority in another state.]

Defendant’s car was lawfully impounded by the police, and he had an expensive stereo system in the car, so the officer was obliged to inventory the car to protect against loss claims while defendant was in detention. State v. Tyler, 166 Wn. App. 202, 269 P.3d 379 (2012).*

Defendant was shown to have consented to a search of the data on his cell phone, so State v. Smith did not apply. State v. Underwood, 2011 Ohio 5703, 2011 Ohio App. LEXIS 4676 (9th Dist. November 7, 2011).*

The officer had probable cause to search the passenger compartment from the smell of burnt marijuana and defendant’s nervousness. State v. Harris, 79 So. 3d 1037 (La. App. 1st Cir. 2011).*

Defendant consented to a school official’s direction to empty her pockets. In her testimony she admitted that she felt like she could refuse. In re M. W. H., 2011 Ore. App. LEXIS 1504 (November 9, 2011).*

The possibility, not even the probability, of remote wiping of a cell phone with applications for nearly all phones, is enough to justify entering the phone to get its number. The question of a more detailed search is saved for another day. United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012):

This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant—for a modern cell phone is a computer.

. . .

A modern cell phone is in one aspect a diary writ large. Even when used primarily for business it is quite likely to contain, or provide ready access to, a vast body of personal data. The potential invasion of privacy in a search of a cell phone is greater than in a search of a “container” in a conventional sense even when the conventional container is a purse that contains an address book (itself a container) and photos. Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. … [T]here is a far greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175-77 (9th Cir. 2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009). An iPhone application called iCam allows you to access your home computer’s webcam so that you can survey the inside of your home while you’re a thousand miles away. “iCam—Webcam Video Streaming,” http://itunes.apple.com/us/app/icam-webcam-videostreaming/id296273730?mt=8 (visited Feb. 6, 2012, as were the other web sites that we cite in this opinion). At the touch of a button a cell phone search becomes a house search, and that is not a search of a “container” in any normal sense of that word, though a house contains data.

A complication in this case is that, remarkably, the record does not indicate the brand, model, or year of the defendant’s cell phone, so we do not know how dumb or smart it is. But does that matter? Even the dumbest of modern cell phones gives the user access to large stores of information.

. . .

We said it was conceivable, not probable, that a confederate of the defendant would have wiped the data from the defendant’s cell phone before the government could obtain a search warrant; and it could be argued that the risk of destruction of evidence was indeed so slight as to be outweighed by the invasion of privacy from the search. But the “invasion,” limited as it was to the cell phone’s number, was also slight. And in deciding whether a search is properly incident to an arrest and therefore does not require a warrant, the courts do not conduct a cost-benefit analysis, with the invasion of privacy on the cost side and the risk of destruction of evidence (or of an assault on the arresting officers) on the benefit side of allowing the immediate search. Toting up costs and benefits is not a feasible undertaking to require of police officers conducting a search incident to an arrest. Thus, even when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed, United States v. Robinson, supra, 414 U.S. at 235, provided it’s no more invasive than, say, a frisk, or the search of a conventional container, such as Robinson’s cigarette pack, in which heroin was found. If instead of a frisk it’s a strip search, the risk to the officers’ safety or to the preservation of evidence of crime must be greater to justify the search. Campbell v. Miller, 499 F.3d 711, 717 (7th Cir. 2007), citing Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983). Looking in a cell phone for just the cell phone’s phone number does not exceed what decisions like Robinson and Concepcion allow.

Warrant for DNA failed to show probable cause because it was based on mere conclusions. On remand, however, the state is free to use inevitable discovery to validate it. State v. Jenkins, 2012 S.C. App. LEXIS 84 (March 28, 2012):

Nevertheless, the State argues that because this case involves a sex crime, the magistrate could reasonably have inferred the victim was the source of the information. We disagree. The law does not allow the State to justify a bodily intrusion on the possibility that a magistrate made a correct inference as to the source of the information in the affidavit. Rather, “[m]ere conclusory statements which give the magistrate no basis to make a judgment regarding probable cause are insufficient.” Smith, 301 S.C. at 373, 392 S.E.2d at 183. Moreover, the complete absence of a source for any of the information makes a variety of scenarios possible. For example, the detective could have pieced together the information from other officers, the victim’s neighbors, or even an anonymous tip. This is precisely what the law forbids a magistrate from doing. The magistrate’s “action cannot be a mere ratification of the bare conclusions of others.” Id. (quoting Gates, 462 U.S. at 239).

Note: One of the benefits of knowing the Fourth Amendment is that you don’t file pointless motions to suppress. Most of the time, 95% of the time, the warrant or search is valid. I filed my first motion to suppress in over a year this week on the same ground: The officer alleged it was his opinion that evidence would be found in the place to be searched without any effort to show probable cause connecting it to the crime under investigation saying only “It is the officer’s opinion evidence will be found” in a camera and computer. And, warrants failing on this ground get no good faith exception under Leon’s third ground.

Police received a 911 call of shots fired from an alleged AK47 inside a house, and the SWAT team even came. Just before entry, they saw a light go on, and they entered. This was with exigent circumstances there might be a shooting victim inside. Once officers were inside, the court finds defendant consented to a full search of the premises. State v. Johnson, 2012 Ohio 1344, 2012 Ohio App. LEXIS 1170 (8th Dist. March 29, 2012).*

Defendant was approached by an officer at a rest stop because he noticed her taillights flash, suggesting she needed help. He found her OVI. He did not suspect any criminal activity, and there was no apparent need for a community caretaking encounter, so the motion to suppress should have been granted. State v. Clapper, 2012 Ohio 1382, 2012 Ohio App. LEXIS 1189 (9th Dist. March 30, 2012).

Defendant stopped for a lane change violation was in a rented car purportedly rented to his girlfriend, but he didn’t know her last name. That was reasonable suspicion to detain longer. State v. Delossantos, 2012 Ohio 1383, 2012 Ohio App. LEXIS 1192 (9th Dist. March 30, 2012).*

The “consent” search here was not true consent, and the finding of defendant’s money for seizure was a product of that invalid consent. There were no intervening circumstances sufficient to purge the taint. “The Court also finds the constitutional violations that preceded Moser’s consent were purposeful and flagrant.” United States v. $28,000.00 in United States Currency, 2012 U.S. Dist. LEXIS 44113 (S.D. Cal. March 29, 2012).*

Officers at the house end of the driveway were in the curtilage when they made their “plain view” of an HCL generator. The government’s alternative argument of knock-and-talk with a PO and LEO led to a “protective sweep,” but the government cannot prove that there was any articulable basis for believing there was somebody armed there. Finally, the court concludes that the PO had reasonable suspicion that defendant was involved in a methamphetamine operation, and that justified entry onto the property. United States v. Wyatt, 2012 U.S. Dist. LEXIS 42725 (W.D. Ky. March 28, 2012).*

Defendant’s guilty plea even waived ineffective assistance claims. [That violates the Sixth Amendment; how obtuse. How can defense counsel agree to a plea agreement that waives IAC? In any rational court, counsel can’t because of a conflict on the potential Sixth Amendment claim.] Wiand v. United States, 2012 U.S. Dist. LEXIS 43793 (N.D. Tex. January 17, 2012).*

WBIR.com: Lawmakers continue to push plan to drug test welfare recipients:

It’s an idea in Nashville that just won’t die.

Certain state lawmakers say they’re not ready to give up on their plan to drug test welfare recipients, even though the attorney general says it’s unconstitutional.

Lawmakers say they want to make sure those who receive public assistance are using the money as intended, and not for illegal drugs.

The plan is already moving ahead in both chambers even though the attorney general says drug testing those on benefits violates the Fourth Amendment.

Memphis Commercial Appeal: Sheriff’s Office will no longer hold prisoners for 48-hour detention | Practice violates Tenn. constitution, court finds by Lawrence Buser, Daniel Connolly, Kevin McKenzie:

Local authorities have suspended the practice of detaining people in jail for up to 48 hours without charging them with a crime.

The move follows a scathing opinion by the Tennessee Court of Criminal Appeals at Jackson, which said the Memphis Police Department was routinely violating the Fourth Amendment of the U.S. Constitution. That amendment says authorities can’t make arrests or search and seize property without probable cause. The opinion also said the policy violates Tennessee’s constitution.

The appeals court had ordered that convicted murderer Courtney Bishop must get a new trial because the detention that led to his confession of shooting a man in a robbery was illegal.

It was the third time since 2001 the court had issued a harshly worded opinion criticizing the 48-hour detentions.

The case is here.

BLT: Lacking GPS Data, Prosecutors Turn To Cell Tower Information:

Earlier this year the U.S. Supreme Court said federal prosecutors in Washington will not be able to use global positioning system information in an upcoming drug conspiracy trial here.

…

The Jones case is back in Washington federal district court, and it now turns out that the authorities may not need the GPS data to try to link Jones to the drug house.

Prosecutors said they intend to use cell tower data in place of the GPS information, court records show. Cell tower data was not used in either of the first two trials involving Jones.

Jones’ attorney, A. Eduardo Balarezo, late Thursday filed court papers (PDF) in the case challenging the prosecution’s planned use of tower data to show Jones’ movement in the Washington metropolitan area.

Cell tower information is less reliable than GPS because of the ability of a cell phone to leapfrog over cell towers to others less close, but most persons who claim to be experts on this will admit the failings.

Use of a metal detector to enter a building does not limit consent to just that. If it alerts, there is implied consent to a further search. Otherwise, don’t try to go in. Here, defendant was trying to carry drugs into a homeless shelter, and the metal detector went off. Here, it all ripened to reasonable suspicion. People v. Hurt, 2012 NY Slip Op 02408, 2012 N.Y. App. Div. LEXIS 2333 (1st Dept. March 29, 2012):

We reject defendant’s argument that his implied consent was limited to the magnetometer search. When a person sets off a magnetometer by passing through it, the person can reasonably expect that security personnel will not permit entry into the restricted premises without taking whatever measures are necessary to find out what triggered the magnetometer. Otherwise, the magnetometer would have little value.

Since defendant never abandoned his attempt to enter the shelter, he implicitly consented to an expanded search. Defendant was free to cut off the search by turning around and walking out. The officer did nothing to suggest otherwise, and defendant never indicated that he no longer wished to enter.

Attenuation proved: First search October 7th, second search December 21st; Davis must be considered. United States v. Roberts, 2012 U.S. Dist. LEXIS 42752 (E.D. Pa. March 28, 2012)*:

Not all Fourth Amendment violations warrant the suppression of evidence. The Amendment itself says nothing about suppression; rather, the exclusionary rule is a “prudential” doctrine with a singular purpose — to deter future Fourth Amendment violations. Davis v. United States, 131 S. Ct. 2419, 2426 (2011) (citation omitted). And as the Supreme Court recently reiterated, “real deterrent value” is a necessary, but not sufficient, condition for exclusion. Id. at 2427. Instead, we balance the hard-to-quantify social costs of exclusion (suppressing the truth) against its benefits (deterring police misconduct) and exclude the challenged evidence only when the latter outweighs the former. See id. at 2427-28 (cautioning that “[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningful’ deterrence, and culpable enough to be ‘worth the price paid by the justice system.'”) (citation omitted). Since we, as a society, have a compelling interest in deterring flagrant police misconduct, the more egregious the violation, the more likely it justifies exclusion. See id. (recognizing that “the deterrence benefits of exclusion ‘vary with the culpability of the law enforcement conduct’ at issue.”). Importantly, our exclusionary rule analysis must account for the conduct of all the officers involved. See Herring v. United States, 555 U.S. 135, 140 (2009) (“In analyzing the applicability of the [exclusionary] rule, Leon admonished that we must consider the actions of all the police officers involved.”).

. . .

On this particular point, we agree with the Government. As discussed supra, the point of the exclusionary rule is to deter police misconduct. The attenuation factors, including “temporal proximity” and “intervening circumstances,” are really just clues that help us determine whether the benefits of suppressing certain evidence outweigh the costs. Here, the conduct we wish to deter is Officer Kostick’s, not that of the agents who ultimately arrested Roberts on December 21st. Therefore, our purging-the-taint inquiry must center on the events of October 7th. The Defendant implicitly recognizes this, focusing entirely on Officer Kostick’s conduct in discussing the “purpose and flagrancy” prong of the attenuation analysis. …

Using October 7th as the starting point, the “temporal proximity” and “intervening circumstances” attenuation factors weigh against suppressing the fruits of the consensual December 21st search, but only slightly. As the Government points out, over two (2) months elapsed between Officer Kostick’s search and Roberts’ consent. Apparently, Roberts was not in police custody during this time. In addition, the agents who obtained Roberts’ consent are different from the officer who committed the earlier illegality. All of this distances the December 21st search from the October 7th violation.