The trial court properly denied a Franks hearing because the defense provided no offer of proof as to what was false and how it affected probable cause. State v. Pargo, 2012 Iowa App. LEXIS 228 (March 28, 2012).*

Taillight violation supported stop that revealed defendant was an “habitual” driving without a DL violator. State v. Hughes, 2012 Iowa App. LEXIS 266 (March 28, 2012).*

The trial court erred in not considering the defendant’s offer of proof of the 911 call and other things on the question of reliability of an anonymous tip, but, on de novo review, the court of appeals considers it and finds that it does not change the outcome. State v. Kooima, 2012 Iowa App. LEXIS 231 (March 28, 2012).*

Bad search where officer’s testimony was clearly designed to skirt the constitution was not attenuated from a later search. United States v. Roberts, 2012 U.S. Dist. LEXIS 42752 (E.D. Pa. March 28, 2012):

The Fourth Amendment protects “against unreasonable searches and seizures.” Faced with a motion to suppress, the Government bears the burden of demonstrating the reasonableness of a warrantless search or seizure. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). Here, the Government relied only on the testimony of Officer Kostick to meet its burden as to the October 7th search of Roberts and his van. As discussed supra, we do not believe Kostick’s story. The objective physical facts, which are not subject to the biases of humans, prove his testimony to be false. We find his entire sequence of events (excessively tinted windows -> traffic stop -> failure to comply with commands -> drugs in plain view on the door -> gun in plain view on the floor) a fabrication, carefully constructed to stay just within the constraints of the Fourth Amendment. As such, the Government has not demonstrated the reasonableness of the October 7, 2010 traffic stop and subsequent search. This stop and search violated James Roberts’ Fourth Amendment rights, and we have suppressed the evidence recovered during that search accordingly. (See Doc. No. 41).

Now we must tackle the difficult question of whether this Fourth Amendment violation taints the fruits of the December 21st search to which Roberts consented. Roberts contends it does, while the Government argues that time and intervening events have purged the taint. Because of the flagrancy of the constitutional violation that occurred here, we must agree with Roberts. Time cannot heal all wounds, and it cannot heal this one.

Plaintiff was a part of the Bradley Manning/Wikileaks support network, and his computer was seized in Chicago by DHS after he passed through Customs and was waiting for a flight to Boston and he was questioned about his connection to Manning. The court concludes the seizure was valid, but the 49 day detention stated a claim for unreasonableness of the seizure. Also, his First Amendment claim survives a motion to dismiss. House v. Napolitano, 2012 U.S. Dist. LEXIS 42297 (D. Mass. March 28, 2012):

Considering these factors in light of Supreme Court precedent, it cannot be said that the search and seizure of House’s laptop and other electronic devices was so intrusive as to require any particularized suspicion. House contends that the search of a laptop and electronic devices implicates one’s “dignity and privacy interests,” not because there was any disrobing, physical search of his person, force used or exposure to pain or danger, but because such devices contain information concerning one’s thoughts, ideas and communications and associations with others. However, such a search of a laptop computer or other electronic devices does not involve the same “dignity and privacy interests” as the “highly intrusive searches of the person” found to require some level of suspicion such as strip searches or body cavity searches. Flores-Montano, 541 U.S. at 152. The Supreme Court has not explicitly held that all property searches are routine or that such searches are categorically incapable of implicating the “dignity and privacy interests of the person being searched,” Id., but the search of one’s personal information on a laptop computer, a container that stores information, even personal information, does not invade one’s dignity and privacy in the same way as an involuntary x-ray, body cavity or strip search of person’s body or the type of search that have been held to be non-routine and require the government to assert some level of suspicion.

ACLU’s page on case; ACLU press release on order.

Motion to suppress computer searches denied without prejudice, and the government is ordered to provide the computer search protocol to the defense so it can be determined whether the search was overbroad. United States v. Fu-Tain Lu, 2010 U.S. Dist. LEXIS 144395 (N.D. Cal. September 16, 2010):

The defense argues, however, that Agent Zaborowski’s search was improper because the mirror images should have been turned over to a magistrate or third party to monitor any off site search. By engaging a third party to monitor the search of intermingled documents, the defendants contend that their Fourth Amendment rights could have been adequately protected. See id. at 595-96. The court finds, however, that Agent Zaborowski’s method of searching adequately protected defendants’ rights. By using software and word searches, the government avoided looking at documents that were likely to be outside the scope of the warrant. In a search of hard copy documents at a site, agents necessarily look at many documents that they do not seize because they are outside the scope of the warrant. With the method used by Agent Zaborowski, assuming he made appropriately narrow word searches, only those documents that had a likelihood of being within the scope of the warrant were examined by human eyes. Thus, potential Fourth Amendment concerns were minimized. Although Tamura and United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 997-9 (2009) suggest that when documents within the scope of a warrant are intermingled with documents not covered by the warrant and the documents are removed from the site for later review, the further search should be with the approval of a magistrate. However, Tamura did not consider the Government’s utilization of a word search that would avoid looking at most, if not all, documents outside the scope of the warrant. It is doubtful that the method used by Zaborowski for searching electronically stored documents even existed at the time of Tamura. In Comprehensive Drug Testing the searching agents were exposed to drug testing records of non-parties whose privacy rights were clearly violated, a very different situation than that in the present case.

For the reasons stated, the court orders as follows:

1. Defendants’ motion to suppress evidence is denied without prejudice to reconsideration if the defense discovers that the Government did a search of the mirror images that was not reasonably designed to find only documents, files or data described in the warrant;

2. The Government is to turn over the mirror images of the hard drives and thumb drives in its possession to the defense;

3. The mirror images of the hard drives and thumb drives are to be maintained in their present state by defense counsel or a third party escrow;

4. The Government is to return the eight 1.44MB floppy disks to defendants without reviewing them, is not to use them against defendants at trial and must destroy the CD onto which the floppy disks were copied;

5. The Government is to provide the defense with the word searches it used as best they can be reconstructed; and

6. The Government is to provide the defense with copies of any documents, files or data from the mirror images it book marked or otherwise selected or copied.

Ohio distinguishes between “light” and “strong” odor of marijuana to determine whether smell is enough to search the trunk. Here, it was “strong.” State v. Ivery, 2012 Ohio 1270, 2012 Ohio App. LEXIS 1120 (11th Dist. March 26, 2012):

[*P25] However, the Ohio Supreme Court has also held that”[t]he odor of burnt marijuana in the passenger compartment of a vehicle does not, standing alone, establish probable cause for a warrantless search of the trunk of the vehicle.” State v. Farris, 109 Ohio St.3d 519, 2006 Ohio 3255, 849 N.E.2d 985, ¶ 52 (where the officer detected only a “light” odor of marijuana and no contraband was found in the passenger compartment of the vehicle, a search of the trunk was improper).

[*P26] We hold that the search in this case falls under the automobile exception and that Shum did have probable cause to extend the search to include the vehicle’s trunk. Many courts have found cases with similar circumstances to be distinguishable from Farris, such that a search into the trunk of the vehicle is proper under the automobile exception. …

[*P27] In the present case, Shum testified that he smelled a “very strong” odor of marijuana upon approaching the car. In addition, after searching the interior of the car, he saw what he described as little “bits of marijuana.” Upon speaking with Ivery, Shum was also informed that Ivery had been smoking marijuana that day. When considering all of these factors together, this case is distinguishable from Farris, and Shum had sufficient probable cause to search the trunk of the vehicle in addition to the interior.

“The US government can listen to my phone calls and read my emails, detain me indefinitely without charge, and incinerate me with a drone while I am abroad — but to force me to buy health insurance would be to shred the Constitution and take away my freedom.”
— From Facebook

Defendant’s wife had no apparent or actual authority to consent to a search of a safe in their bedroom where she had nothing in the safe and did not have a key to it. King v. State, 79 So. 3d 236 (Fla. 1st DCA 2012):

At the motion hearing, the wife testified that (1) the safe was given to her husband by his mother; (2) she did not have a key to the safe; (3) the safe housed her husband’s personal belongings; and (4) she did not have any of her personal belongings inside. As such, the wife did not have the actual authority to consent because she did not mutually use the safe. Marganet, 927 So. 2d at 57-58.

Second, the State argues the officers had apparent authority to search the safe because it was found amidst the belongings of both spouses in their jointly owned bedroom and closet. However, “[l]aw enforcement may only rely on a person’s apparent authority to give consent if such consent is reasonable given the totality of the circumstances.” Brock v. State, 24 So. 3d 703, 704 (Fla. 1st DCA 2009) (citing State v. Young, 974 So. 2d 601, 609 (Fla. 1st DCA 2008)). If the basis for the asserted authority is not clear, the officer must conduct further inquiry before relying on the third party’s representations. Id. Here, prior to prying open the safe, the officer knew the wife did not have a key and that the safe contained appellant’s personal property. As such, it was incumbent upon him to conduct a further inquiry into the possession of the safe prior to forcing it open. For these reasons, we reverse the motion to suppress and remand for further proceedings consistent with this opinion.

We also reject the argument that exigent circumstances justified the warrantless search. Once the officers had secured the safe, there was no reasonable probability that evidence would be destroyed or that the failure to conduct an immediate search would endanger persons or property.

[Having to pry open the safe might have been a clue.]

The Maryland state troopers had probable cause to search defendant’s car, so the district court erred in concluding that the officers exceeded the scope of consent and applied the wrong standard of what is probable cause. United States v. Ortiz, 669 F.3d 439 (4th Cir. 2012):

This ruling erroneously elevated the probable cause standard to one more demanding than a preponderance. Probable cause requires an officer to have a “reasonable ground for belief of guilt”—”more than bare suspicion.” Brinegar, 338 U.S. at 175 (emphasis added). A “reasonable ground” for belief is less demanding than a standard requiring a preponderance of the evidence for the belief. See Gates, 462 U.S. at 235; Humphries, 372 F.3d at 660 (“[T]he probable-cause standard does not require that the officer’s belief be more likely true than false”). Thus, when the district court concluded that a search of the vehicle would “more likely than not” have uncovered contraband, it reached a conclusion that satisfied the probable-cause standard and authorized the Maryland State Police to search Ortiz’s vehicle.

WNYC News Blog: NYPD Conducts Suspicionless Stops in Private Buildings: Suit by Ailsa Chang:

A federal class action was filed against New York City and Police Commissioner Ray Kelly on Wednesday for what plaintiffs allege are suspicionless stops within private residential buildings.

Under the NYPD’s enforcement of a program known as Operation Clean Halls, a landlord enters into an agreement with the NYPD, which grants officers permission to patrol inside the building at any time they choose.

Claim that officers made up the allegations of the affidavit for the search warrant still did not warrant a Franks hearing. He at least needs to make a proffer of the falsity and what rebuts. United States v. Wade, 2012 U.S. Dist. LEXIS 40754 (W.D. Pa. March 26, 2012):

7. Defendant did not, however, present a sufficient preliminary showing that the affidavit contained a false statement. He is, therefore, not entitled to a Franks hearing, and the court must deny the Motion for a Franks Hearing (ECF No. 57). Defendant presented no evidence to contradict any of the averments made in the application for the warrant. His attempt to eliminate the potential callers (and by process of elimination present testimony that no confidential informant called defendant at the appropriate time) failed. The warrant application contains a statement that the CI called Wade’s phone sometime after 6:30 p.m. and before 6:55 p.m., which is when Churilla and the CI departed the police station heading to Wade’s residence. There are at least five telephone calls from unidentified callers (Callers A, B, C, D, and E) in that time period which were answered, any of which could be attributable to the CI.

The government’s warrantless use of GPS on vehicles in violation of Jones does not lead to suppression. On the vehicle search, there was consent of the operator and no standing of the others. “Neither of these Defendants has presented evidence showing either an ownership or contractual interest in any of these vehicles or exclusivity of use such that would give rise to a legitimate expectation of privacy.” On a dwelling search, the evidence showed that a search warrant would have issued anyway under the independent source doctrine when the GPS information was removed from the warrant. On another vehicle search, there was independent probable cause for its search apart from the GPS monitoring. United States v. Luna-Santillanes, 2012 U.S. Dist. LEXIS 40532 (E.D. Mich. March 26, 2012).

GPB News: Welfare Drug Testing Bill Moves Forward by Jeanne Bonner:

ATLANTA—Georgia lawmakers have passed a bill that would require welfare recipients to take a drug test before receiving benefits. GOP supporters of the measure say it would save taxpayers money but opponents say it’s unconstitutional and uncharitable.
Georgia lawmakers have passed a bill that would require welfare recipients to take a drug test before receiving benefits. GOP supporters of the measure say it would save taxpayers money but opponents say it’s unconstitutional and uncharitable.

The bill would target what supporters call abuse of a government benefit, namely the federal welfare program.

It’s similar to a Florida law a federal judge has blocked because it violates the Fourth Amendment’s protection from unlawful search.

I hope when the Arkansas legislature comes back into session they will adopt such a law. I can use the money after suing them for adopting something so fundamentally unconstitutional.

Massachusetts Lawyers Weekly: Lawyer settles cell phone suit against city, cops for $170K by Matt:

The attorney arrested for using his cell phone to record Boston police officers during an arrest has reached a settlement with the city for $170,000.

After a judge threw out criminal charges of illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace against Simon Glik, he filed a civil rights suit against the city and the arresting officers in U.S. District Court, aided by the American Civil Liberties Union of Massachusetts and Boston attorneys Howard Friedman and David Milton.

The settlement follows a landmark decision last August by the 1st U.S. Circuit Court of Appeals, which ruled that the First Amendment protects the right to record police carrying out their duties in a public place. In Glik v. Cunniffe, The 1st Circuit affirmed that an arrest for openly recording the police also violates the Fourth Amendment’s guarantee against false arrests.

Defendant was found to have consented. Sure, there were a lot of police there, but he wasn’t yet arrested, and they talked casually for 20 minutes before consent was asked for. There was no evidence of overt coercion, and he was informed of his right to refuse the search in writing. United States v. Cochran, 2012 U.S. Dist. LEXIS 40505 (S.D. Fla. February 8, 2012).*

A wire on a cooperating codefendant-to-be was sufficient to show nexus to defendant’s house because the house was connected to the alleged drug deal. The good faith exception would support the search anyway. United States v. Bell, 2012 U.S. Dist. LEXIS 40770 (D. Minn. February 6, 2012).*

Police had fairly specific information (which was couched in terms of what they knew and didn’t know) and overhead the CI on a wire talking with a man in a silver Jetta and a drug deal was arranged. When a silver Jetta showed up, the police identified themselves, and the defendant ran from the Jetta. They had probable cause, and flight alone wasn’t all they had. United States v. Bazzle, 2012 U.S. Dist. LEXIS 40236 (E.D. Pa. March 23, 2012).*

Business Week: Big Brother Wants Your Facebook Password by Claire Suddath:

If you want to become a state trooper in Virginia, you should probably delete any indelicate information you have on Facebook. During the job interview process, the Virginia State Police requires all applicants to sign into Facebook, Twitter, and any social-networking site to which they regularly post information in front of an administrator.

“You sign a waiver, then there’s a laptop and you go to these sites and your interviewer reviews your information,” says Corinne Geller, spokeswoman for the Virginia State Police. “It’s a virtual character check as much as the rest of the process is a physical background check.” Geller says the practice has been around for only three months and is just one of many ways the state makes sure its law enforcement officials are ethically sound. (Potential troopers also have to submit to a polygraph test).

Cert. granted today in Florida v. Harris, 11-817.

Issue: Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.

Opinion below: Harris v. State, 71 So. 3d 756 (Fla. 2011) posted here.

Briefs: Cert petition; brief in opposition.

This case will be argued next Term. Read the Florida Supreme Court’s decision, the petition, and the BIO before you pass judgment on the oversimplistic issue the state chose to present. The case isn’t that easy, unless, of course, the conservative wing has no problem with just saying “this is Place and Caballes and we’re done.” If it really was, they should have GVR’d it and been done with it.

A drug dog’s alert is not sufficient in itself for probable cause. The state carries the burden of proving the dog’s reliability, including training and false positives. Harris v. State, 71 So. 3d 756 (Fla. 2011), cert granted 11-876 (March 26, 2012):

When will a drug-detection dog’s alert to the exterior of a vehicle provide an officer with probable cause to conduct a warrantless search of the interior of the vehicle? That is the question in this case, and the answer is integral to the constitutional right of all individuals in this state to be protected from unreasonable searches and seizures.

The issue of when a dog’s alert provides probable cause for a search hinges on the dog‘s reliability as a detector of illegal substances within the vehicle. We hold that the State may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances. Because a dog cannot be cross-examined like a police officer on the scene whose observations often provide the basis for probable cause to search a vehicle, the State must introduce evidence concerning the dog’s reliability. In this case, we specifically address the question of what evidence the State must introduce in order to establish the reasonableness of the officer‘s belief—in other words, what evidence must be introduced in order for the trial court to adequately undertake an objective evaluation of the officer’s belief in the dog’s reliability as a predicate for determining probable cause.

. . .

… We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability. The trial court must then assess the reliability of the dog’s alert as a basis for probable cause to search the vehicle based on a totality of the circumstances. Because in this case the totality of the circumstances does not support a probable cause determination, the trial court should have granted the motion to suppress. We remand for proceedings consistent with this opinion.

In a FIPF case where the gun was the target of a search warrant, the defendant did not show enough to get access to the CI’s identity under Roviaro. The CI was not central to the charge under the government’s theory of constructive possession. Here, it was all speculative what the defense was trying to prove. United States v. Anthony, 2012 U.S. Dist. LEXIS 38123 (D. N.J. March 20, 2012):

Defendant offers a series of contentions for why disclosure is warranted, including: the need to challenge the basis for the warrant; the fact that the informant is the only person who claims to have seen Defendant in possession of the firearm; and the need to investigate Defendant’s theory that the informant played a role in framing Defendant. None of these reasons provides a sufficient basis to overcome the qualified privilege.

First, the validity of the search warrant does not turn on the informant’s intentions or mental state. …

Second, the Government does not intend to introduce the informant’s testimony at trial in order to prove possession; instead, the Government will present a case for constructive possession. Therefore, there is no need to cross-examine the informant regarding the informant’s claimed observations.

The third and final issue is the question of whether disclosure is necessary because the informant’s identity is helpful to Anthony’s defense involving the gun having been planted by the informant or the informant’s co-conspirator. This is the kind of defense theory that does not rise above mere speculation or hope. …

Roviaro was decided in 1957, yet I still occasionally see charges where the prosecuting attorney charged the defendant with the underlying CI offense thereby making the CI a material witness. They apparently were not paying attention in law school or when reading the file.

An affidavit for search warrant that showed utterly no connection to the place to be searched lacked probable cause. And, it was so lacking in probable cause that the good faith exception did not apply. United States v. Bautista, 2012 U.S. Dist. LEXIS 39222 (W.D. Ky. March 22, 2012):

To establish probable cause, the affidavit must have indicated why evidence of illegal activity would be found at the particular place to be search-Lot #78. The affidavit does not do so. Like in Laughton, the affidavit in this case neither indicated that Lot # 78 was Bautista’s residence nor indicated that the drug sales described by Copeland occurred at Lot # 78. Instead, the affidavit states only that the drug sales occurred at Bautista’s residence, and then lists Lot # 78 as the place to be searched. The government contends that, given all the circumstances of Copeland’s information and the detailed description of the place to be searched, the inference can be made Lot #78 is Bautista’s residence. However, the government’s argument is to no avail because the affidavit contains no evidence from which such an inference could be made. The single paragraph setting forth the factual details fails to even mention Lot #78. Accordingly, probable cause to search the residence located at Lot #78 was not established because the affidavit submitted to obtain the warrant did not explain the significance or the relevance of searching the home located at this particular location. See United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988) (finding no probable cause where the affidavit failed to provide any nexus between the residence and the illegal activity).

. . .

Likewise, here, the affidavit simply lists an address of the premises to be searched, and states Copeland’s allegations regarding the fact that he regularly purchased methamphetamine from Bautista at his home. There is not even a “modicum of evidence” linking the criminal activity described by Copeland and Lot #78. Cf. United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir. 1998) (applying good faith exception where affidavit for search warrant neglected to indicate why the affiant believed the defendant had any connection to the residence, but did state that the rooms in the residence were available to the defendant). Importantly, the affidavit did not state any evidence linking Bautista to Lot #78 and did not even state that Bautista resided at Lot #78. No reasonable officer could have believed that the affidavit was not so lacking in indicia of probable cause as to be reliable. Although the Court does not find that the law enforcement officers acted in bad faith, it nonetheless must conclude that the Leon good faith exception does not apply.

Cell phone pictures might have evidence of crime in drug cases. I’ve been seeing for years in search warrant affidavits that officers want to see pictures on computers or in a house because of the propensity of drug traffickers to take pictures of their scores. And, I’ve seen them in evidence: all the plants of the grow operation, the bounty from the big score, the pound of coke before it is parceled out. See Mail Online: Driving his Porsche in pants, posing with stacks of cash and beating up his rivals: Photos found on lost phone of ‘Chinese gangster’ show his bad-boy lifestyle. Besides the stacks of cash, there’s a picture of torture with a pair of pliers and a foot to the neck.