Defendant was arrested at home in her pajamas. She was allowed to reenter to get dressed, but officers were allowed to go in with her for self-protection, and a sawed off shotgun was seen inside leaning against the wall. This observation was lawful. [If she didn’t want them to see the gun, she should not have asked to go back inside. This is just like Christman.] United States v. Reid, 2012 U.S. Dist. LEXIS 24523 (E.D. Mo. February 7, 2012):

When the deputies arrested Graham at 712 Thrush, she was dressed in her pajamas. Following the arrest and a brief discussion, the deputies allowed Graham to reenter 712 Thrush to change her clothes. Although the deputies had no specific reason to suspect danger to them or that Graham might attempt to escape, the deputies were entitled to enter the residence immediately before or with Graham and to remain with her as she changed clothes. Debuse, 289 F.3d at 1074-75 (holding that where the defendant “chose to reenter his house simply for his own convenience[,] [a]llowing reentry on the condition that the officers accompany him was reasonable”); ….

Based on prior wiretaps, officers had probable cause as to defendant. When they saw what appeared to be a hand to hand transaction, they had more probable cause to stop him. United States v. Coria, 2012 U.S. Dist. LEXIS 24624 (D. Minn. January 25, 2012).*

When defendant refused to be “seized” and ran away, he obviously felt free to leave. Also, “[t]he district court reviews de novo only those portions of a magistrate judge’s R&R to which objections are filed.” There is no de novo review to that which the defendant does not object. United States v. Huckabee, 2012 U.S. Dist. LEXIS 24491 (N.D. N.C. February 27, 2012):*

The district court reviews de novo only those portions of a magistrate judge’s M&R to which objections are filed. 28 U.S.C. § 636(b)(1). The court does not perform a de novo review of those portions to which a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely objection, the court reviews only for “clear error,” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

. . .

Detective Hunter did not seize defendant when she attempted to question him near the side of the road. After Detectives Becker and Hunter pulled to the side of the road, Detective Hunter approached defendant from the front and asked, in a conversational tone, if she could talk to him. Defendant responded aggressively by saying, “Who the [expletive omitted] are you? You don’t know me.” Detective Hunter identified herself as a police detective and again asked if she could talk to him. Defendant again responded, “You don’t know me,” and then fled. The entire encounter lasted about five seconds.

Under these factual circumstances, a reasonable person would have felt himself free to leave. Detective Hunter did not physically contact defendant, nor was her questioning of him intimidating. Her firearm was holstered, and she did not accuse defendant of any criminal activity. Based on these circumstances, a reasonable person would have felt himself free to go about his business. Further, even if Detective Hunter’s conduct could somehow be construed as an assertion of authority, defendant never submitted. Rather, he attempted to flee. As stated above, “[a] defendant who flees the police in response to an assertion of authority has not been seized, and thus his Fourth Amendment rights are not implicated.” Brown, 401 F.3d at 594.

There was actual authority to consent to a search by the consenter, although she did not have a working key to the front door, she did to the back. Alternatively, the court finds that it was reasonable for officers to believe in her apparent authority to consent. Finally, even if the information derived from that entry were excised from the application for the search warrant, there still would be probable cause for issuance. United States v. Taitano, 2012 U.S. Dist. LEXIS 27489 (D. Guam February 17, 2012).*

Defendant’s guilty plea waived his illegal search claim, so defense counsel was not shown to be ineffective for not challenging the search before the guilty plea. Schniepp v. State, 2012 Ark. 94, 2012 Ark. LEXIS 108 (March 1, 2012).*

Neither defendant had standing to challenge the search of the car: the passenger because he was a passenger and the driver showing no connection to having it with permission of the owner. They did have standing to challenge the stop, and there was cause for the stop for wandering within a lane. United States v. Perez-Guerrero, 2012 U.S. Dist. LEXIS 27365 (D. Kan. March 2, 2012).*

ars technica: Obama admin wants warrantless access to cell phone location data by Timothy B. Lee:

A Maryland court last week ruled that the government does not need a warrant to force a cell phone provider to disclose more than six months of data on the movements of one of its customers. Two defendants had been accused of armed robbery, and a key piece of evidence against them was data about the movements of the pair’s cell phones. The defendants had sought to suppress this location evidence because the government did not get a warrant before seeking the data from network providers. But last Thursday, Judge Richard D. Bennett ruled that a warrant is not required to obtain cell-site location records (CSLR) from a wireless carrier.

Courts all over the country have been wrestling with this question, and the government has been on something of a winning streak. While one court ruled last year that such information requests violate the Fourth Amendment, most others have reached the opposite conclusion.

The Obama administration laid out its position in a legal brief last month, arguing that customers have “no privacy interest” in CSLR held by a network provider. Under a legal principle known as the “third-party doctrine,” information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection. The government contends that this rule applies to cell phone location data collected by a network provider.

Volokh: Concurring Opinions in Jones Lead FBI To Turn Off 3,000 GPS Devices, Considered a “Sea Change” Within the Bureau by Orin Kerr:

Earlier today, I sent off to law reviews a new draft article on the implications of the mosaic theory of the Fourth Amendment introduced in the GPS case, United States v. Jones — and specifically the majority opinion for the DC Circuit (under the name United States v. Maynard ) and the concurring opinions of Justice Alito and Sotomayor. A recent speech by the general counsel of the FBI suggests that I’m not the only one who thinks that the mosaic theory is a really big deal — and a lot more complicated than many realize:

A Supreme Court decision has caused a “sea change” in law enforcement, prompting the FBI to turn off nearly 3,000 Global Positioning System (GPS) devices used to track suspects, according to the agency’s general counsel.

When the decision-U.S. v. Jones-was released at the end of January, agents were ordered to stop using GPS devices immediately and told to await guidance on retrieving the devices, FBI general counsel Andrew Weissmann said in a recent talk at a University of San Francisco conference. Weissmann said the court’s ruling lacked clarity and the agency needs new guidance or it risks having cases overturned . . .

Weissmann said it wasn’t Scalia’s majority opinion that caused such turmoil in the bureau, but a concurring opinion written by Justice Samuel Alito. Alito, whose opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, agreed with the Court’s conclusion in the case but wrote separately because his legal reasoning differed from the majority.

Alito focused not on the attachment of the device, but the fact that law enforcement monitored Jones for about a month. Alito said “the use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” . . .

In his talk at a University of San Francisco Law Review Symposium, Weissmann suggested that Alito’s concurrence means that several members of the court are concerned with long-term surveillance by technologies beyond GPS systems and that the FBI needs new guidance in order to ensure that evidence does not get thrown out.

“I just can’t stress enough,” Weissmann said, “what a sea change that is perceived to be within the department.”

. . .

. . .

Ruling Raises the Bar to Access Long-Term Cell Phone Records by Joel Stashenko, New York Law Journal, August 23, 2011:

Authorities must establish probable cause and secure a warrant before obtaining information from cell phone providers that can indicate the round-the-clock whereabouts of customers, a federal judge in Brooklyn ruled yesterday.

Fourth Amendment protections against unreasonable searches apply to the so-called cell-site-location records as surely as judges of a previous generation found that they applied to people using pay phones, Eastern District Judge Nicholas G. Garaufis determined yesterday. In fact, he said, cell phones have all but rendered pay phones obsolete as a means of communication and are rarely out of the reach of users.

Opinion: In The Matter of An Application of The United States of America for an order authorizing the release of Historical Cell-Site Information, 809 F. Supp. 2d 113 (E.D. N.Y. 2011).

See Computerworld: Judge: Warrant required for cell phone location data, mentions Orwell’s 1984.

Defendant’s neighbor called the police to report that defendant’s property’s gate was damaged by what looked like a vehicle rammed it. Police responded, came on the property, and found a door to the house unlocked. The entry was justified by exigent circumstances. United States v. Garcia, 809 F. Supp. 2d 1165 (M.D. Fla. August 3, 2011)*:

Upon knocking at the front door, he received no answer. When he checked the windows and doors, he realized one door was unlocked. Though he found no signs of forced entry, his discovery that a door was unlocked objectively could have suggested someone was inside. Cf. Tibolt, 72 F.3d at 967, 970. Deputy Roe called for backup, and when the backup deputy arrived, the two decided to enter the residence. Before they did so, they shouted “Sheriff’s Office. Come out and make yourself known.” There was no response. Combined with the other factors, which viewed objectively suggested someone could have been inside, the lack of response to their command lends further support for the conclusion that it was reasonable to believe someone could be inside and unable to respond, thus in need of immediate aid. Cf. id. at 970. Just as in Tibolt, without going inside, the officers could not have known whether “an intruder had managed to get into the residence, and even injured or captured a resident, then fled; or had been caught off guard by the police and remained in the residence with a forcibly detained resident.” Id. at 970.

Viewing the totality of the circumstances, the undersigned concludes that it was objectively reasonable for officers to believe someone was in need of immediate aid, and therefore they were permitted to enter the home without a warrant for the purpose of looking for that individual. See McGough, 412 F.3d at 1237 (citation omitted). That Deputy Roe smelled marihuana when he opened the door, and that he admitted the smell was “another factor but not the deciding factor” contributing to his decision to enter the residence, are of no consequence because the subjective intent of law enforcement officers and the seriousness of any possible crime they are investigating are irrelevant. See Fisher, 130 S. Ct. at 548 (quotation and citation omitted).

I’m not buying it. The damage was to the gate, there were no cars on the property, there was absolutely no reason to believe that an entry into the house was justified under any stretch of the imagination.

Defendant got shot in his house and went to the hospital. He called a friend to take care of the house while he was hospitalized. When the friend got there, he saw a bloody sheet in the house, and he called the police to come and look for intruders, knowing that defendant’s assailants had not been apprehended. As a house-sitter, he had apparent authority to consent to that entry for a protective sweep, and bomb-making materials were found. State v. Telshaw, 2011 Ohio 3373, 195 Ohio App. 3d 596, 961 N.E.2d 223 (7th Dist. 2011):

[*20] Using Huntington as a guide in our analysis, it appears that in the instant case, Mr. Utsinger’s function is directly analogous to a house-sitter. As such, he had authority to allow police into Appellant’s house. In the matter before us, Mr. Utsinger had authority over the entire premises and its contents, and was specifically asked to safeguard both. There is no evidence of any limitation on Mr. Utsinger’s authority over the property, and no evidence that Appellant instructed Utsinger not to allow police to help him secure the property if needed. Appellant actually told Utsinger to safeguard the property in the house as well as the house, thus giving him free reign over the entire premises. Furthermore, Utsinger did not ask the police to enter the property to look for evidence that Appellant had committed a crime, but rather, to help Utsinger secure the property as he had been directed. Although Appellant did not specifically give Utsinger instructions to reside in the property, it is clear from the record that Utsinger had plenary control over the property to inspect it, examine it, protect it, secure it, and perform whatever function was necessary to safeguard the premises and its contents. Thus, any reasonable police officer would conclude that Utsinger had at least the authority to ask for police assistance in checking the premises for intruders when he found the front door open and a bloody sheet in the doorway, knowing that a crime recently had been committed on the property and that the perpetrators had not yet been apprehended.

Government investigators searched for files on defendant’s computer when it was open for P2P sharing, and, finding child pornography, they got a search warrant for his computer. The USMJ did not have to see the alleged child porn to find probable cause. United States v. Beatty, 437 Fed. Appx. 185 (3d Cir. 2011).*

Defense counsel was not ineffective for not challenging his wife’s consent on appeal because she consent without coercion. It was alleged that she was threatened with her kids, but that was not the case. United States v. Henderson, 437 Fed. Appx. 96 (3d Cir. 2011).*

The evidence supported the district court’s conclusion that the defendant consented. “Delaney fails to show that the district court’s credibility finding with regard to the police officers’ testimony that he gave consent was based on ‘“exceedingly improbable testimony”’ and thus clearly erroneous, United States v. Mapp, 476 F.3d 1012, 1017 (D.C. Cir. 2007) (quoting United States v. Adamson, 441 F.3d 513, 519 (7th Cir. 2006)).” United States v. Delaney, 397 U.S. App. D.C. 133, 651 F.3d 15 (2011).*

Plaintiffs stated a claim for a Franks violation in a § 1983 for a search warrant for their house for evidence that Bravo Jr. was involved in a drive-by shooting. At the time of the shooting and raid on the house, Bravo Jr. had been in prison for six months. Bravo v. City of Santa Maria, 665 F.3d 1076 (9th Cir. 2011):

Hope Bravo and Javier Bravo Sr., along with their minor granddaughter E.B. (collectively “the Bravos”), appeal the adverse summary judgment grant in their 42 U.S.C. § 1983 action arising out of the nighttime SWAT team search of their home for weapons suspected of being used in a drive-by shooting and stored in the Bravo home by their son, Javier Bravo Jr. (“Javier Jr.”). The Bravos allege their Fourth Amendment rights were violated by the issuance and execution of a search warrant whose application failed to disclose that Javier Jr. was at that time, and for over six months had been, incarcerated in the California prison system and therefore not only was not present in the Bravo home, but moreover could not have been involved in the shooting or the storage of weapons used in it. Because the Bravos presented sufficient evidence establishing a genuine issue as to whether Santa Maria Police Department (“SMPD”) Detective Louis Tanore’s (“Tanore”) omission of this material fact was intentional or reckless, as opposed to merely negligent, we reverse the summary judgment grant in his favor and remand.

. . .

Nonetheless, we must ask whether probable cause remains once the affidavit is supplemented with the challenged omission—here, Javier Jr.’s two-year sentence imposed over six months prior to the incident occasioning the search warrant, and his consequent incarceration in state prison at the time of the drive-by shooting and of the warrant’s execution. We conclude that the corrected affidavit could not establish probable cause for the search and especially does not meet the heightened standard of justification required for nighttime SWAT service.

The district court reasoned that Javier Jr.’s presence was immaterial because the warrant was not for his arrest but only to search for evidence related to the April 21 shooting. This fact, however, was highly material to the search, which authorized the seizure of evidence relating to the April 21 shooting. Javier Jr.’s custody status meant not only that he would not be present in the Bravo residence at the time of the search, but that he could not have been involved in the shooting or in concealing the evidence. Tanore had no evidence that Mr. and Mrs. Bravo or E.B. were involved in the April 21 shooting or that during a period in which Javier Jr. was not residing in their home they would have assisted Tangas gang members in concealing evidence, and specifically in concealing evidence from the shooting. The generalized statements in the affidavit that it is “common” for families of gang members to assist other members of the gang are insufficient to support probable cause to search the Bravos’ home. See United States v. Rodgers, 656 F.3d 1023, 1030-31 (9th Cir. 2011) (stating that “an assumption that most sixteen-year-old passengers have identification does not lead to probable cause to search every car carrying a teenager absent some individualized suspicion regarding the teenager, the vehicle in question, and the crime at issue”); United States v. McCarty, 648 F.3d 820, 830 (9th Cir. 2011) (“Searches and seizures are ordinarily unreasonable in the absence of individualized suspicion of wrongdoing, and the circumstances under which a warrantless search not supported by probable cause may be considered reasonable under the Fourth Amendment are very limited.”) (internal quotation marks and citations omitted).

Defendant engaged in an email exchange with the mother of his niece who was posing as the niece to talk about his molesting her six years earlier in Wisconsin, which he essentially admitted, along with having child pornography on his computer. A USMJ in South Dakota issued a search warrant for defendant’s computers in Wisconsin. After they were seized, another was issued in South Dakota to search them. There was probable cause and the good faith exception would support the warrant. The legality of the interstate warrant does not need to be decided. United States v. Houston, 665 F.3d 991 (8th Cir. 2012)*:

Here, Shawback, based on her experience, discerned a connection between child molestation and possession of child pornography. She conveyed this experience in her affidavit along with evidence that Houston acknowledged that he possessed a computer disk, a disk which one may infer likely contained child nudity and potentially pornography, based on the context of his email admission, that he took with him to Wisconsin when he molested E.L.. Based on Shawback’s affidavit, a Wisconsin judge issued a warrant to search Houston’s computers for child pornography. With this search warrant in hand, Shawback searched his computers and found child pornography. Under these facts, by excluding this evidence, we would be “[p]enalizing the officer for the magistrate’s error, rather than [her] own, [which] cannot logically contribute to the deterrence of Fourth Amendment violations.” Leon, 468 U.S. at 921.

Houston further argues that, in light of the fact that the issuing judge limited Warrant #2’s applicability to violations of Wisconsin statutes the Leon good-faith exception does not apply because no officer could reasonably believe that the computers seized in South Dakota would contain any evidence of a six-year-old violation of a Wisconsin statute. This argument presupposes that an officer would know the legal and jurisdictional limits of a judge’s power to issue interstate search warrants as well as statutory limitation periods for prosecutors. We decline to impose such a duty on officers exercising a search warrant obtained without deceit. “‘[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.'” Id. (quoting Stone v. Powell, 428 U.S. 465, 498 (1976) (Burger, C.J., concurring)). After all, “[i]t is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.” Id. “In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.” Id. Here, Shawback searched Houston’s computers in Wisconsin for evidence of child pornography pursuant to a search warrant. Under these facts, we cannot say that the warrant was “‘so facially deficient’ that no police officer could reasonably presume the warrant to be valid.” Proell, 485 F.3d at 431 (internal quotations omitted). Thus, we find that Shawback conducted the search in good faith.

Defendant arrested for obstruction did not mean there would be evidence in the car for search incident purposes. Moreover, she was handcuffed and in the back of a police car at the time. State v. Oram, 46 Kan. App. 2d 899, 266 P.3d 1227 (2011):

Our Supreme Court noted that under Gant, “[t]o have a valid search incident to arrest, when there is no purpose to protect law enforcement present, the search must seek evidence to support the crime of arrest, not some other crime, be it actual, suspected, or imagined.” Henning, 289 Kan. at 147. Our Supreme Court further stated that “[i]n the vehicle context, ‘in many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains … evidence [relevant to the crime of arrest.].’” 289 Kan. at 147 (quoting Gant, 556 U.S. at ___ [129 S. Ct. at 1719]).

Although our Supreme Court has struck down K.S.A. 22-2501(c) as facially unconstitutional, we point out that under Gant, there was no reasonable basis for the deputy to believe that the car contained evidence of Oram’s crime of arrest (for obstruction). As a result, the search was an unreasonable search incident to arrest under Gant and Henning. Clearly, the trial court would have been correct, under these circumstances, to hold that the search violated Gant.

Gant permits a search incident of a vehicle despite the detained driver when passengers remain in the car, if there is potential evidence in the car. Stark v. State, 960 N.E.2d 887 (Ind. App. 2012):

Davis [United States v. Davis, 569 F.3d 813 (8th Cir. 2009)], Goodwin-Bey [United States v. Goodwin-Bey, 584 F.3d 1117 (8th Cir. 2009)], and Young [Commonwealth v. Young, 78 Mass. App. Ct. 548, 940 N.E.2d 885 (Mass. App. Ct. 2011] indicate that, where unrestrained passengers remain in a vehicle, a search of the vehicle incident to a defendant’s arrest is permissible to alleviate officer safety concerns and to prevent the destruction of evidence. We find this analysis persuasive. The Court in Gant emphasized the officer safety basis for the search incident to arrest exception. Gant, 556 U.S. at 332, 129 S. Ct. at 1716. The three passengers here were unsecured during Officer Shockey’s arrest of Stark, Stark had behaved suspiciously regarding his jacket, and they were in a high crime area. An objective officer considering these facts would have been warranted in conducting a search of the vehicle incident to Stark’s arrest under Gant‘s officer safety considerations. See United States v. Salamasina, 615 F.3d 925, 930 (8th Cir. 2010) (holding that, where the defendant’s fiancée repeatedly entered and exited the vehicle, spoke to the defendant in a foreign language, and attempted to close the garage door, “[a]n objective officer considering these facts, in conjunction with the fact that officers had just executed an arrest warrant on [the fiancée] on drug charges, would be warranted in conducting a search of the vehicle incident to [the defendant’s] arrest under Gant’s officer-safety consideration”). The search of the vehicle incident to Stark’s arrest was permissible under Gant, and the trial court properly denied Stark’s motion to suppress.

Defendant’s Franks challenge was based on the fact that the officer did not include in a later search warrant application that the lady that consented to the search with full authority to do so had a criminal history. The officer included that she’d been indicted. Even if it were all included, the search warrant would have issued. United States v. Livingston, 445 Fed. Appx. 550 (3d Cir. 2011).*

Defendant’s motion to suppress was based on an entrapment defense, a defense on the merits, and it was acceded to that it was more an issue for trial, so the judgment is affirmed. State v. Lewis, 75 So. 3d 495 (La. App. 5th Cir. 2011).*

An FOIA production did not provide enough information of alleged falsity to overcome a 1962 order denying a suppression motion that was affirmed on appeal. United States v. Stonehill, 660 F.3d 415 (9th Cir. 2011).*

The use of a knife to remove a bag of drugs from a suspect’s penis in a public place at the time of arrest was a “sexually intrusive strip search” and was governed by Bell v. Wolfish. Here, it was unreasonable, and the search is suppressed. United States v. Edwards, 666 F.3d 877 (4th Cir. 2011):

Upon discovering the sandwich baggie tied around Edwards’ penis, another officer held Edwards’ pants and underwear open while Bailey put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife.4 [4 Nothing in the record suggests that Edwards suffered any physical injury as a result of this action.] After Bailey cut the baggie, he reached into Edwards’ underwear and removed the baggie and its contents. During this procedure, Edwards remained in handcuffs with his hands secured behind his back.

Bailey testified that there were several reasons he conducted this second search before placing Edwards into the police van. Bailey stated that “[a] complete search is always your best option,” because often “people hide things in those areas.” Bailey also stated that because Edwards was being arrested for a handgun violation, Bailey thought that a more extensive search was warranted to ensure the safety of the officers, including the driver of the transport van. Finally, Bailey testified that he was aware of Edwards’ criminal history, including that he previously had been arrested on drug charges. When asked whether it was customary for officers in Baltimore to search inside the underwear of arrestees, Bailey testified that “it’s about 50 percent of the time, because nobody likes to do that search. You know, it’s unpleasant for everybody involved. But if you have reason to believe that there might be something, then it’s a good idea to check, because often they do hide things down there.”

The officers conducted this search inside Edwards’ underwear in the middle of the street beside the police transport van. Although Edwards was searched at 11:30 p.m., a streetlight partially illuminated the area. All four officers, each of whom was male, saw the drugs being removed from inside Edwards’ underwear, but the district court found that only two officers, including Bailey, saw Edwards’ penis during the course of the search.

. . .

The manner in which contraband is removed from a suspect during a sexually intrusive search, no less than the manner in which the contraband initially is discovered, must be considered in determining under the Bell analysis whether the search was reasonable. Bell, 441 U.S. at 559-60; see United States v. Hambrick, 630 F.3d 742, 748 (8th Cir. 2011); United States v. Williams, 477 F.3d 974, 975-76 (8th Cir. 2007). Thus, the reasonableness of a sexually intrusive search depends in part on the manner in which the search was conducted and the consideration given to the privacy interests of the suspect. See Lafayette, 462 U.S. at 645; United States v. Ashley, 37 F.3d 678, 681-82 (D.C. Cir. 1994).

The safety of the suspect must be considered as well. A search that is theoretically permissible in one context may be impermissible in another if it is conducted in a cruel, painful, or dangerous manner. See United States v. Braks, 842 F.2d 509, 511-13 (1st Cir. 1988) (considering “whether the type of search exposes the suspect to pain or danger,” in court’s analysis of invasiveness of search, and upholding search in part because it did not result in “pain or danger” to defendant); United States v. Sandler, 644 F.2d 1163, 1167 (5th Cir. 1981) (en banc) (considering whether search was painful or dangerous in analyzing invasiveness of search).

Noted in: WalshLaw: How likely is it that a police officer will mistakenly cut when using a knife to remove a drug-containing baggie tied around a particular male body part? and picked up by Volokh Conspiracy: Fourth Circuit Overturns Conviction Because Officer Used A Knife to Remove the Crack Tied Around An Arrestee’s Private Parts.

Five officers responded to a 911 call about a gun potentially being used in a confrontation that the caller said was escalating into a fight. On arrival at the house, two men were walking away from it dressed in baggy clothes that could have concealed a weapon. “Although their actions could have been entirely innocent, the circumstances reasonably supported a more sinister explanation.” United States v. Brake, 666 F.3d 800 (1st Cir. 2011):

Here, the facts display reasonable suspicion with respect to both the stop and the pat-down. With respect to the stop, the 911 caller had reported the presence of a man with a handgun at the residence making threats and that a fight seemed imminent. See Romain, 393 F.3d at 73-74 (contrasting reliability of information provided by a 911 caller who is at the site of the reported criminal activity with the holding in Florida v. J.L., 529 U.S. 266 (2000), in which uncorroborated information from an anonymous tip emanating from an “unknown caller” phoning from an “unknown location” was deemed insufficient to warrant a Terry stop). A potentially fatal situation may have been rapidly cresting; indeed, five police officers responded, arriving without delay. The police immediately noticed two men who, given their temporal and spatial connection to the scene, may very well have just left the residence. Cf. United States v. Golab, 325 F.3d 63, 66-67 (1st Cir. 2003) (holding that Terry stop was improperly based only on an “impermissible hunch” in part because the seized car was located in a remote parking lot and thus lacked a geographical connection to the site of the suspected criminal activity). The baggy clothing that the men wore easily could have concealed a handgun. Finally, the cohorts’ conduct at the parked van gave rise to a fair suspicion that they may have either deposited a gun or retrieved additional weaponry. Although their actions could have been entirely innocent, the circumstances reasonably supported a more sinister explanation. See United States v. Stanley, 915 F.2d 54, 57 (1st Cir. 1990) (noting that “[u]nder Terry, the test is whether the circumstances give rise to a reasonable suspicion of criminal activity, not whether the defendant’s actions are subject to no reasonable innocent explanation.”).

These circumstances called for quick decision-making by the police. See generally United States v. Sharpe, 470 U.S. 675, 686 (1985). Viewing the whole fabric through the lens of a reasonable and cautious police officer, we conclude that specific and articulable facts justified the Terry stop to investigate Brake’s possible involvement in the reported disturbance.

Where an illegal search makes other evidence the government has appear more relevant, the exclusionary rule would not be applied to the other evidence. The costs outweigh the benefits. United States v. Fofana, 666 F.3d 985 (6th Cir. 2012):

As a result of a presumably illegal airport search, the Government learned that Fode Fofana used “Ousmane Diallo” as an alias. Identification bearing Diallo’s name was previously used to open two bank accounts, through which Fofana allegedly committed bank fraud. In Fofana’s federal bank fraud case, the district court suppressed any evidence bearing Diallo’s name, and the Government appeals that order. Although the actual documentation seized during the search must be suppressed, evidence obtained legally and independently of the search is not suppressible, even if the Government cannot show that it would have discovered its significance without the illegal search. Under the facts of this case, the minimal deterrent effect of suppression is far outweighed by the sweeping burden on the truth-seeking function of the courts.

. . .

There is a difference between evidence that the Government obtains because of knowledge illegally acquired, and evidence properly in the Government’s possession that it learns the relevance of because of knowledge illegally acquired. It may be that the latter must be suppressed in some cases. But in the context of the present case, bank records and other evidence that the Government obtained independently of the airport search do not have to be suppressed on account of the unconstitutionality of that search, merely because the relevance or usefulness of that evidence became apparent because of the search.

The reasoning behind this conclusion is strongly supported by case law, although the precise combination of circumstances appears to be unprecedented. First, the actual documents whose suppression is at issue—the bank records reflecting the fraud—were in the possession of the Government entirely free of illegal means. Secondly, the illegal search was not directed to the crime, or even the type of crime, for which the discovered information turned out to be useful, thereby eliminating much of the deterrent effect of suppression in this case. Third, an alternate, more direct deterrent to such searches is clearly present, in the form of excluding the passports from evidence. Fourth, exclusion of the bank records in this case unduly burdens the truth-seeking function of courts by effectively precluding relevant and legitimately obtained evidence from ever being used.

Eighth Circuit joins majority of circuits and holds that the plaintiff in a § 1983 action for a warrantless arrest or search bears the burden of production, proof, and persuasion that no exception applies. [Omitted is fn.2 with a lot of citations.] Der v. Connolly, 666 F.3d 1120 (8th Cir. 2012):

Instead, as the district court correctly noted, this court “has not expressly decided who bears the burden of proof in a § 1983 action for a warrantless arrest or search.” Der, 2011 U.S. Dist. LEXIS 112748, 2011 WL 31498, at *2. We do so now. Two views currently prevail among our sister circuits. A majority of the circuits place the burden of proof on the plaintiff in a § 1983 action for a warrantless arrest or search, with some of those circuits imposing the burden of production on the defendant. A minority of the circuits place the burden of proof on the defendant in a § 1983 action. See, e.g., Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1070 (10th Cir. 2010) (stating, in the context of a § 1983 action, “[t]he officers bear the burden of establishing that the threats posed exigent circumstances justifying the warrantless entry”); Hardesty v. Hamburg Twp., 461 F.3d 646, 655 (6th Cir. 2006) (concluding the government bears the burden of proving the presence of exigent circumstances justifying the warrantless entry); Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996) (“To excuse the absence of a warrant, the burden rests on the State to show the existence of [exigent circumstances].”); Tarter v. Raybuck, 742 F.2d 977, 980-81 (6th Cir. 1984) (holding that school officials bore the burden of demonstrating a student’s voluntary relinquishment of the constitutional protection against unreasonable searches in light of the “presumption against the waiver of constitutional rights”); Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3d Cir. 1984) (commenting that, in a § 1983 action for malicious prosecution, the “defendants bear the burden at trial of proving the defense of good faith and probable cause”).

Having reviewed the relevant case authority, we agree with the majority of our sister circuits’ “formulation of the proper allocation of the parties’ burdens in a section 1983 action alleging a Fourth Amendment violation.” Valance, 110 F.3d at 1279. We have previously recognized that “plaintiffs ordinarily retain the burden of proof throughout the trial” in a suit “brought pursuant to 42 U.S.C. § 1983.” Clark v. Mann, 562 F.2d 1104, 1117 (8th Cir. 1977). Thus, “employing a criminal burden of proof [in a § 1983 civil action] is contrary to established principles governing civil trials, namely, that the ultimate risk of nonpersuasion must remain squarely on the plaintiff.” Bogan, 644 F.3d at 570 (quotations and citations omitted). As the Seventh Circuit explained, “[e]ven if a presumption of unreasonableness arises from the fact of a warrantless search [or entry], that does not serve in a civil case to shift ‘the burden of proof in the sense of the risk of nonpersuasion.’” Valance, 110 F.3d at 1279 (quoting Fed. R. Evid. 301). Instead, such “presumption merely serves to impose on the defendant ‘the burden of going forward with evidence to meet or rebut the presumption.’” Id. (quoting Fed. R. Evid. 301). A defendant may satisfy this burden of production by “produc[ing] evidence of consent or of some other recognized exception to the warrant requirement.” Id. at 1278. “Yet once the defendant has done so, ‘the ultimate risk of nonpersuasion must remain squarely on the plaintiff in accordance with established principles governing civil trials.’” Id. (quoting Ruggiero, 928 F.2d at 563).

The officer received a tip that defendant wanted in an arrest warrant was living in a particular place. The officer surveilled the apartment and saw him coming and going at least twice. This was sufficient under Payton. United States v. Weeks, 442 Fed. Appx. 447 (11th Cir. 2011) (unpublished).

The officer confirmed with dispatch that defendant did not have a valid DL, and that justified the stop. Defendant’s passing reference to the legality of the search of the car was a mere passing reference without authority, and it is deemed abandoned. United States v. Gardner, 444 Fed. Appx. 361 (11th Cir. 2011) (unpublished).*

The officer testified that the dog alerted on a free-air search around the vehicle. The defendant argued that the dog stuck his nose in an open window. Defendant did not satisfy his appellate burden of showing that the search was invalid. United States v. Ayala, 446 Fed. Appx. 78 (10th Cir. 2011).*

The government concedes defendant has a reasonable expectation of privacy in the text messages on his cell phone. However, when the phone rang during a co-defendant’s arrest, the name appearing on the screen was in plain view. Finally, a search incident of the call log was permissible, even though the court doesn’t like it. United States v. Gomez, 807 F. Supp. 2d 1134 (S.D. Fla. 2011):

Courts have also recognized that an individual has a reasonable expectation of privacy in a cell phone’s text messages. See City of Ontario v. Quon, __ U.S. __, __, 130 S. Ct. 2619, 2626, 177 L. Ed. 2d 216 (2010) (finding expectation of privacy in text messages on cell phone); Finley, 477 F.3d at 259 (reasonable expectation of privacy in text message on cell phone); United States v. Wall, 08-60016-CR, 2008 U.S. Dist. LEXIS 103058, 2008 WL 5381412, at *3 (S.D. Fla. Dec. 22, 2008) (noting that government did not contest that viewing of text messages on defendant’s cell phone constituted a search).

. . .

Applying these current principles here, the Government is correct that, even under the post-Gant scope of a search incident to arrest, Agent Mcphee’s post-seizure decision to review and record Defendant’s call log history was permissible. Plainly, the agents arrested the Defendant and, incident to that arrest, they seized a cell phone that was found close to the Defendant (i.e. within his “reaching distance”). While this alone is enough, the agents also had probable cause to suspect Defendant’s cell phone contained evidence relevant to his arrest. Indeed, the salient facts make this clear: the agents intercepted a package carrying cocaine; Defendant placed this package in his vehicle; and, before agents effected a vehicle stop they observed Defendant on his cell phone.

Altogether, the agents had “reason[ ] to believe the vehicle contain[ed] evidence of the offense or arrest” and the Defendant was “within reaching distance of the passenger compartment at the time of the search.” On these facts, the agents were clearly permitted to seize the cell phone (indeed, Defendant concedes as much) and, like a wallet, purse, bag, or cigarette case, look through the item at the scene to see if any evidence or other contraband could be found. Moreover, because Agent Mcphee promptly reviewed the call log history at the scene, the search was temporally and spatially connected with the arrest. It was, in short, a classic search incident to arrest.

Defendant’s primary argument against applying the exception here is that there was no necessity for the search to be conducted at that point. In other words, the search was not necessary to preserve officer safety by looking for weapons; the cell phone’s contents obviously posed no threat of harm to the agents or threat of escape to Defendant once the cell phone was seized. Also, during the hearing, Defendant argued that the search was not necessary to prevent destruction of evidence because the agents already seized the cell phone. Indeed, it is true that Defendant was already in handcuffs, under arrest and placed in an agents’ vehicle when the search took place. He was not a serious threat to destroy the potential evidence, say by grabbing the cell phone and smashing it to the ground, or by remotely accessing the cell phone and deleting its contents.13

13 The agents testified that they searched through the cell phone because they were concerned that the cell phone might be remotely “wiped,” thus deleting the call log history. Objectively speaking, we find this concern unconvincing especially in light of their admission that the cell phone lacked internet capabilities (consider: how do you remotely access and thus delete a cell phone that is incapable of making a remote connection?) Regardless, as we discuss herein, the point is really moot because necessity of exigent circumstances are not relevant to a search incident to arrest analysis under current Supreme Court authority.