Defendant was not in a “Catch-22” by having to establish standing since it couldn’t be used to prove guilt. The trial court explained it to her. State v. Vu, 2012 Ohio 746, 2012 Ohio App. LEXIS 650 (9th Dist. February 27, 2012):

[*P23] Vu asserted in the court below that the trial court placed her in a “Catch-22” by insisting that she prove a possessory interest in the properties, as any such proof would aid the State’s case. She also avers on appeal that it is illogical that she was barred from seeking suppression on the basis that she lacked a possessory interest, but was found guilty of possession, for which there had to be evidence of a possessory interest. The answer to both arguments lies in the difference between the suppression stage and the trial stage.

[*P24] Although the State bore the burden of proof at trial, it was Vu’s burden to prove that she possessed a legitimate expectation of privacy for purposes of suppression. Redding, 2010 Ohio 4286, at ¶ 8, quoting Blackert, 1992 Ohio App. LEXIS 3818, 1992 WL 174642, at *3. Further, any evidence she introduced at the suppression stage to prove that she had a possessory interest would not have been admissible against her at trial on the issue of guilt. Simmons, 390 U.S. at 394. The trial court explained both propositions of law to Vu’s counsel at the suppression stage. Even so, Vu’s counsel maintained that he did not have any testimony to offer, the record spoke for itself, and Vu automatically should be entitled to challenge the applicable search warrants, given that the State intended to pursue possession charges against her. The United States Supreme Court has specifically rejected the notion of “automatic standing,” however, and it was Vu’s burden to demonstrate a privacy interest. State v. Johnson, 63 Ohio App.3d 345, 347-348, 578 N.E.2d 867 (9th Dist.1989), citing United States v. Salvucci, 448 U.S. 83, 91-93, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Because she failed to carry her burden, the trial court did not err by concluding that she lacked standing to challenge the warrants issued for the houses at Troon Avenue, Baywood Drive, and Autumnwood Lane and the apartments at Grand Lake Drive and Stoneybrook Lane.

Come on: Simmons is almost 45 years old.

Forbes op-ed: The TSA Is Coming To A Highway Near You by Rep. Marsha Blackburn (R-TN):

One of the great honors of my service to Tennessee is having the opportunity to represent Ft. Campbell which is home to the storied 101st Airborne, the 5th Special Forces Group and the Army’s 160th Special Operations Aviation Regiment which piloted Navy SEAL Team Six during the raid on Osama Bin Laden.

Each soldier who calls Ft. Campbell home has gone through some of the most intensive training on the planet which pushed their minds and bodies to their physical limits. In the end, those who make the cut have earned the right to be part of our United States military, are honored to wear its uniform, and are serving on the frontlines in the fight against global terrorism.

Unfortunately, the same cannot be said for our nation’s Transportation Security Officers (TSOs) who Department of Homeland Security Secretary Janet Napolitano contends are our nation’s last line of defense in fighting domestic terrorism. Unlike “hell week” which faces potential Navy SEALs, becoming a TSO requires a basic level of classroom and on the job training. In many cases this rigorous training is less severe than the requirements of becoming a security guard in most states.

Defense counsel made headway on the officer’s credibility based on conflicts between his report and his testimony, but the court still finds the stop valid. United States v. Lopez, 2012 U.S. Dist. LEXIS 22812 (M.D. La. February 21, 2012)*:

The testimony did not establish why LoCicero approached Lopez’s truck. LoCicero’s proffered explanation is devoid of an articulable reason for suspecting Lopez had or was about to commit a crime. The sole reason why he approached Lopez’s truck was because he and his companion had been sitting there for several minutes “conducting no lawful business.” This sounds suspiciously like a police euphemism for profiling. It is the presence of unlawful business, not the absence of “lawful business,” which serves as the touchstone for reasonable suspicion analysis. LoCicero had no articulable reason for approaching Lopez’s car. Nevertheless, mere approach and questioning alone does not trigger Fourth Amendment protections. Bostick, 501 U.S. at 435; see also United States v. Brown, 209 Fed.Appx. 450, 452 (5th Cir. 2006) (defense counsel conceding at oral argument that officer’s initial approach of parked car does not implicate Fourth Amendment). At that point, therefore, LoCicero’s interaction with Lopez remained completely lawful.

It is unclear how long LoCicero spoke with Lopez, but LoCicero’s report—filed only a couple of days following the incident—clearly implies that, prior to asking for identification, he perceived the situation to have ripened into a stop. LoCicero’s precise language—”prior to releasing Lopez”—could not be given meaning without necessarily acknowledging that a stop of some sort had already occurred. Citizens who are free to terminate a police encounter do not need “releasing.”

LoCicero attempted during the hearing to backtrack on what he meant in his report, but he did ultimately acknowledge the report’s language implied a stop had occurred. While contending that the imprecise language he used in the report created a misimpression as to whether Lopez had been free to leave at that point, he freely admitted his police report provided a better picture of what happened that night because it reflected his memory of the incident mere days after it occurred. LoCicero’s testimony effectively contradicts his report even though he admits the report provides a more accurate portrayal of how the events unfolded that day because it was written in the wake of the incident. Giving the report a straight-forward reading compels the conclusion that LoCicero thought the questioning ripened into a stop at some point prior to him asking for Lopez’s identification card.

However, an officer’s perception of the legal effect of his actions is not dispositive. …

The person answering the door at a motel room said he’d been staying there two days. That was apparent authority for consent to the police to enter. Even if the actual fact was he stayed there one day, the officer still would have seen apparent authority, and that was not IAC for not developing that fact. United States v. Livingston, 2012 U.S. Dist. LEXIS 25558 (W.D. Okla. February 28, 2012).

Defendant concedes that the marijuana patch in this case was in open fields, but he contends the police entered his curtilage to get a photograph of it. Even if true, that would not have tainted the warrant here when it was excised from the lawfully obtained information. United States v. Simmons, 2012 U.S. Dist. LEXIS 25615 (D. Me. February 28, 2012).*

Regardless of whether the officer violated Miranda in defendant’s equivocal statement about marijuana in his car in a national park, the officer already had probable cause for a search of the car. United States v. Lehman, 2012 U.S. Dist. LEXIS 25754 (E.D. Cal. February 28, 2012).*

Defense counsel did, in fact, challenge the search so no IAC for failing to do so. United States v. Davis, 2012 U.S. Dist. LEXIS 24939 (D. Kan. February 28, 2012).*

In Messerschmidt v. Millender, 2012 U.S. LEXIS 1687 (February 22, 2012), the Supreme Court held that the Ninth Circuit en banc erred in finding officers who obtained a search warrant that might have been overbroad were still entitled to qualified immunity because the officers prepared the application and warrant, cleared it with a superior and a prosecutor, and then a magistrate signed off on it. It was not so lacking in probable cause that the good faith exception would not apply or qualified immunity would not protect them. The officers were not, in the words of Malley v. Briggs, “plainly incompetent.” Essentially, they’re saying the warrant was good after all under Groh v. Ramirez. The Syllabus, omitting the facts:

(a) Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U. S. 223, 231. Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner, or in “objective good faith.” United States v. Leon, 468 U. S. 897, 922–923. Nonetheless, that fact does not end the inquiry into objective reasonableness. The Court has recognized an exception allowing suit when “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.” Malley v. Briggs, 475 U. S. 335, 341. The “shield of immunity” otherwise conferred by the warrant, id., at 345, will be lost, for example, where the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U. S., at 923. The threshold for establishing this exception is high. “[I]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination” because “[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.” Leon, supra, at 921. Pp.8−10.

(b) This case does not fall within that narrow exception. It would not be entirely unreasonable for an officer to believe that there was probable cause to search for all firearms and firearm-related materials. Under the circumstances set forth in the warrant, an officer could reasonably conclude that there was a “fair probability” that the sawed-off shotgun was not the only firearm Bowen owned, Illinois v. Gates, 462 U. S. 213, 238, and that Bowen’s sawed-off shotgun was illegal. Cf. 26 U.S.C. §§ 5845(a), 5861(d). Given Bowen’s possession of one illegal gun, his gang membership, willingness to use the gun to kill someone, and concern about the police, it would not be unreasonable for an officer to conclude that Bowen owned other illegal guns. An officer also could reasonably believe that seizure of firearms was necessary to prevent further assaults on Kelly. California law allows a magistrate to issue a search warrant for items “in the possession of any person with the intent to use them as a means of committing a public offense,” Cal. Penal Code Ann. §1524(a)(3), and the warrant application submitted by the officers specifically referenced this provision as a basis for the search. Pp. 10–12.

(c) Regarding the warrant’s authorization to search for gang related materials, a reasonable officer could view Bowen’s attack as motivated not by the souring of his romantic relationship with Kelly but by a desire to prevent her from disclosing details of his gang activity to the police. It would therefore not be unreasonable—based on the facts set out in the affidavit—for an officer to believe that evidence of Bowen’s gang affiliation would prove helpful in prosecuting him for the attack on Kelly, in supporting additional, related charges against Bowen for the assault, or in impeaching Bowen or rebutting his defenses. Moreover, even if this were merely a domestic dispute, a reasonable officer could still conclude that gang paraphernalia found at the Millenders’ residence could demonstrate Bowen’s control over the premises or his connection to other evidence found there. Pp. 12−16.

(d) The fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause. A contrary conclusion would mean not only that Messerschmidt and Lawrence were “plainly incompetent” in concluding that the warrant was supported by probable cause, Malley, supra, at 341, but that their supervisor, the deputy district attorney, and the magistrate were as well. Pp. 16−18.

(e) In holding that the warrant in this case was so obviously defective that no reasonable officer could have believed it to be valid, the court below erred in relying on Groh v. Ramirez, 540 U. S. 551. There, officers who carried out a warrant-approved search were not entitled to qualified immunity because the warrant failed to describe any of the items to be seized and “even a cursory reading of the warrant” would have revealed this defect. Id., at 557. Here, in contrast, any arguable defect would have become apparent only upon a close parsing of the warrant application, and a comparison of the supporting affidavit to the terms of the warrant to determine whether the affidavit established probable cause to search for all the items listed in the warrant. Unlike in Groh, any error here would not be one that “just a simple glance” would have revealed. Id. at 564. Pp. 18−19.

620 F. 3d 1016, reversed.

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. BREYER, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.

One could see this one coming. The Ninth Circuit to me plainly contradicted Groh, and the warrant was going to ultimately be upheld. As I’ve said here and in the treatise before, if the good faith exception would save the warrant, the officer would have qualified immunity, and vice versa. They work hand in glove. The qualified immunity cases were used to create the good faith exception.

Officers were conducting a knock-and-talk, and defendant refused to show his right hand which was behind his back or come out. That justified an entry to see if it was a weapon. United States v. Brooks, 2012 U.S. Dist. LEXIS 22458 (N.D. W.Va. February 23, 2012). [So much for the ability to exclude.]

The stop was justified by a reasonable belief that some traffic offense occurred. It doesn’t matter that the officer can’t fully articulate the proper one. United States v. Guevara, 2012 U.S. Dist. LEXIS 20910 (D. Neb. February 21, 2012):

Law enforcement officers are not expected to “interpret the traffic laws with the subtlety and expertise of a criminal defense attorney,” United States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005) (quoting United States v. Sanders, 196 F.3d 910, 913 (8th Cir.1999)). The determination of objective reasonableness “is not to be made with the vision of hindsight, but instead by looking to what the officer reasonably knew at the time.” United States v. Smart, 393 F.3d 767, 770 (8th Cir.2005). If an officer makes a mistake in law or fact, the mistake “must be objectively reasonable to avoid running afoul of the Fourth Amendment.” Martin, 411 F.3d at 1001.

All that was required in this case was a reasonable suspicion that some traffic violation occurred. …

An impaired driver is an exception to Gant. State v. Cook, 2012 La. App. LEXIS 192 (La. App. 2d Cir. February 21, 2012):

The first exception (an unshackled arrestee, still near the car) is inapplicable to the current facts.

The second exception allows law enforcement to search the passenger compartment incident to arrest, together with any containers located therein, if there is a reasonable belief (reasonable suspicion) that evidence of the crime of arrest is in the car. Of any genre of crime, the one most likely to fit this criteria would be the arrest of an impaired operator. The observed impairment of the driver in this case, while clearly involving alcohol, raises the considerable possibility for the involvement of other drugs used by the defendant. It is therefore reasonable to believe that evidence of the crime of arrest (beer bottles, pills, other drugs) would be located in the vehicle being unlawfully operated by the arrestee and in her purse.

Defendant was the subject of a 911 call about erratic driving. When stopped, he was not intoxicated, but defendant acted suspiciously. He consented to a search of the car for illegal drugs and a couple of joints and an empty nitrous bottle was found under the seat. A wireless video camera was on the front seat that the officer asked about. After defendant was in custody and memory cards were found, defendant consented to a search of them too, and eleven pictures and videos of child pornography were found. He validly consented. State v. Aguirre, 2012 Ohio 644, 2012 Ohio App. LEXIS 595 (11th Dist. February 21, 2012).*

Grits for Breakfast: The newest toys in the box: Police deploy cell-phone trackers, drones:

A pair of stories show how technology is rapidly reshaping old debates about the Fourth Amendment and privacy, raising questions about whether sketchy protections outlined in the 18th Century still serve to prevent government abuses using technologies the Founding Fathers couldn’t imagine.

First, the Fort Worth Star-Telegram has a story about “a new cellphone tracking system authorized for purchase by the Fort Worth City Council this week.”

. . .

Then, at CNBC there’s an item about the increasing use of drones by civilian police agencies, news media and an array of other possible users. The story opens:

Heads up: Drones are going mainstream. Civilian cousins of the unmanned military aircraft that have tracked and killed terrorists in the Middle East and Asia are in demand by police departments, border patrols, power companies, news organizations and others wanting a bird’s-eye view that’s too impractical or dangerous for conventional planes or helicopters to get.

Along with the enthusiasm, there are qualms.

Link won’t work: http://gritsforbreakfast.blogspot.com/

The principals in a business subjected to a search warrant had “standing” (which the court notes was a word rejected by SCOTUS). Storing records there is still an expectation of privacy. A second place was a residence owned by the corporation that they kept business stuff in, and they came and went at will. They had “standing” there, too. United States v. Ferguson, 2012 U.S. Dist. LEXIS 24929 (E.D. Mich. February 27, 2012):

The government argues that the Ferguson defendants’ bare assertion that they were permitted to store personal belongings at the 500 Griswold offices is insufficient to support a reasonable expectation of privacy. However, as discussed below, the rule in United States v. Jeffers, 342 U.S. 48, 52 (1951), indicates that if defendant Ferguson Enterprises were permitted to store business records in the search locations, they should be permitted to challenge the government’s seizure of those records. In addition, in United States v. Waller, 426 F.3d 838 (6th Cir. 2005), the Sixth Circuit held that the owner of an apartment did not have authority to consent to a search of the defendant’s luggage that was stored in the apartment because there was an understanding between the owner and the defendant that the luggage was private. Id. at 845-46. This holding implies that a defendant has a reasonable expectation of privacy in goods stored by permission at a third party’s residence.

Marquette Law School Faculty Blog: The Resurrection of the “Trespass” Element of Fourth Amendment Law by David Behm:

Recently, in United States v. Jones, the Supreme Court ruled that the attaching of a GPS tracking device to a suspect’s car without his knowledge and monitoring of the vehicle’s movements violated the suspect’s Fourth Amendment rights against unreasonable search and seizure. See generally 132 S.Ct. 945 (2012). In so doing, the Court resurrected an idea relating to Fourth Amendment law that had been dormant for almost 50 years – the idea of common-law trespass as a test for violations of the amendment.

After the arrest of two confederates for passing counterfeit checks and they attempted to flee, a hotel receipt was found on one, and the police went to the hotel and found two others loading a car with a computer, printer, and other stuff from a hotel luggage cart. The police had probable cause that the stuff on the luggage cart and in the car was associated with the counterfeit check scheme, so the seizure was valid. United States v. Allen, 2012 U.S. Dist. LEXIS 23450 (E.D. Ark. February 17, 2012).* [I had one of the co-defendants arrested elsewhere.]

Defendant has the burden of showing that there was no probable cause for issuance of a search warrant, and there was. The probable cause was not stale. United States v. Carter, 2012 U.S. Dist. LEXIS 23696 (W.D.Pa. February 24, 2012).*

Defendant’s guilty plea was a waiver of the search issue anyway. Gibson v. United States, 2012 U.S. Dist. LEXIS 23672 (E.D. Mo. February 24, 2012).*

Volokh Conspiracy: Can Magistrate Judges Rule on How the Fourth Amendment Applies to the Execution of a Court Order At the Time of the Application? by Orin Kerr:

Last week, I filed an amicus brief in the Fifth Circuit on a very important question in high-tech crime investigations. As far as I know, the issue is a matter of first impression in any court. Here’s the question: When privacy statutes require the government to obtain a court order before collecting records or conducting surveillance, is the constitutionality of the future execution of the order ripe for adjudication at the time of the application?

That’s a mouthful, so let me try an example. Imagine you’re a federal magistrate judge. The government comes to you with an application for a court order to collect records as required by a federal privacy statute. The government has satisfied the statutory standard set by Congress. But you think that the statute is unconstitutional, and that compliance with the statute therefore will violate the Fourth Amendment. Here’s the question: Can you deny the order and issue an opinion explaining your denial based on your conclusion that the collection of the records would violate the Fourth Amendment? Or do you have to issue the order, let the government execute it, and then wait for an ex post challenge to the constitutionality of the government’s conduct?

On the Colloquy: The Fourth Amendment and Airport Screening Issues, posted by Northwestern University Law Review:

The online companion to the Northwestern University Law Review is proud to feature companion essays on the Fourth Amendment and newly invasive airport screening methods.

In Revisiting “Special Needs” Theory Via Airport Searches, Professor Alexander Reinert examines the controversy surrounding the Travel Security Administration’s new airport search regime by reference to the Fourth Amendment jurisprudence that developed in response to the first instantiation of mass airport searches in the early 1960s. While the Fourth Amendment approaches developed in the 1970s remain relevant today, Professor Reinert argues, TSA’s new search regime is more difficult to square with traditional Fourth Amendment principles than were the FAA’s initial airport screening procedures; and precisely because of the pressure on courts to adjust Fourth Amendment doctrine to meet the perceived needs of the TSA and the traveling public, it is all the more important that new doctrinal limitations accompany any judicial acceptance of the TSA’s new search regime.

In his companion piece The Bin Laden Exception, Professor Erik Luna complements Professor Reinert’s Essay on the Fourth Amendment and airport safety by providing context on terrorism and the decade of Osama bin Laden. Specifically, Professor Luna argues what is at play in the airport search context is not a previously recognized exception to the Fourth Amendment, but instead an entirely new exemption from otherwise applicable requirements, driven by an abiding fear of al Qaeda and its now-deceased kingpin rather than a reasoned assessment of terrorism-related risks.

Read both pieces online at the Northwestern University Law Review Colloquy.

H/T Pogo Was Right.

I’m in Marion, Illinois for a deposition in a civil case at the USP. Driving here last night in Missouri we saw a lighted MoDOT sign saying “Drug Checkpoint Ahead” right at exit 27 (State Highway A) on I-55 where there is absolutely nothing. There was a police car on the shoulder with red and blue lights on, and two cars up on the road at the exit. There was, of course, no drug checkpoint on the highway.

Lawyers in the Missouri Bootheel will have a few new cases this week. [People still fall for that? As long as there are dumb criminals, sure.]

WSJ Blog: FBI Turns Off Thousands of GPS Devices After Supreme Court Ruling by Julia Angwin:

The Supreme Court’s recent ruling overturning the warrantless use of GPS tracking devices has caused a “sea change” inside the U.S. Justice Department, according to FBI General Counsel Andrew Weissmann.

Mr. Weissmann, speaking at a University of San Francisco conference called “Big Brother in the 21st Century” on Friday, said that the court ruling prompted the FBI to turn off about 3,000 GPS tracking devices that were in use.

Defendant’s post-conviction claim that defense counsel essentially should have predicted Gant and argued that was unavailing. The court follows Davis v. United States where SCOTUS held there was a good faith exception for pre-Gant searches relying on Belton because the Indiana Supreme Court similarly applied the exclusionary rule to a change in search and seizure law well before Davis. Henderson v. State, 953 N.E.2d 639 (Ind. App. 2011).

The CI here was believable and entitled to credit where he told the police that he and the defendant had stolen an anhydrous ammonia tank and told them where they secreted it. It was an admission against penal interest. Smith v. State, 953 N.E.2d 651 (Ind. App. 2011).*

The suppression hearing testimony about the reason for defendant’s stop was much more complete than the evidence at trial, and it showed reasonable suspicion. State v. Ostdiek, 351 S.W.3d 758 n. 10 (Mo. App. 2011)* [That is not abnormal; once the stop is determined valid, the complete story usually doesn’t matter to the trial. Here it did, but the trial court remembered the suppression hearing and held it all sufficient.]

Defendant was stopped for not having a seat belt, and the officer saw in plain view pill bottles with oxycodone and Percocet. He got defendant out and searched his person and found cocaine. Then he searched the car finding oxycodone and methadone. Defendant was hooked up and locked in a car when the search of his car occurred, and that search is suppressed for lack of exigency (¶20). State v. Jones, 163 Wn. App. 354, 266 P.3d 886 (2011).*

Defendant’s computer was searched, and he pled guilty to possession of a single photograph of child pornography. After his plea, he requested his computer back, and it was searched again before return finding more child pornography overlooked before. He could be prosecuted separately for possession of the other photographs, and the subsequent second search of the computer was valid under the original warrant from seven months earlier. People v Deprospero, 2011 NY Slip Op 8421, 91 A.D.3d 39, 932 N.Y.S.2d 789 (4th Dept. 2011):

Turning to the novel issue on appeal, we conclude that the court properly refused to suppress evidence uncovered in the January 2010 search of property seized pursuant to the May 2009 warrant. While it is indeed the case that the examination at issue of defendant’s property occurred after sentencing on another charge and followed defendant’s request for the return of such property, we conclude that the police conduct in this case did not violate defendant’s Fourth Amendment rights for a number of reasons. First, defendant provides no support for his contention that the authority to search his property pursuant to the May 2009 warrant terminated at the conclusion of the 2009 prosecution, and we reject that contention. The search warrant directed the police to seize, inter alia, defendant’s computers, external drives, storage media, and cameras, and “authorize[d] the police agency to retain said property for the purpose of further analysis and examination.” There was no deadline in the warrant for completion of the forensic examination and analysis, “nor [does] the Fourth Amendment provide[] for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant” (United States v Hernandez, 183 F Supp 2d 468, 480; see United States v Syphers, 426 F3d 461, 469, cert denied 547 U.S. 1158, 126 S. Ct. 2312, 164 L. Ed. 2d 831; United States v Gorrell, 360 F Supp 2d 48, 55 n 5 [“The warrant did not limit the amount of time in which the government was required to complete its off-site forensic analysis of the seized items and the courts have not imposed such a prophylactic constraint on law enforcement”]; United States v Triumph Capital Group, Inc., 211 FRD 31, 66 [the Fourth Amendment does not “impose any time limitation on the government’s forensic examination of the evidence seized”]). Indeed, “[t]he Fourth Amendment itself contains no requirements about when the search or seizure is to occur or the duration’” (Syphers, 426 F3d at 469, quoting United States v Gerber, 994 F2d 1556, 1559-1560). Rather, “[t]he Fourth Amendment only requires that the subsequent search of the computer be made within a reasonable time” (United States v Mutschelknaus, 564 F Supp 2d 1072, 1076, affd 592 F3d 826).

Finally, we reject defendant’s further contention that the police were required to obtain a new search warrant before searching the property seized pursuant to the May 2009 warrant. “Once a person or his [or her] effects have been reduced to custodial control in the law enforcement system his [or her] privacy has been intruded upon” (People v Perel, 34 NY2d 462, 465, 315 N.E.2d 452, 358 N.Y.S.2d 383). The subsequent search of the property lawfully seized “is then but a lesser-related intrusion incident to the [seizure] already effected” (People v Greenwald, 90 AD2d 668, 668, 455 N.Y.S.2d 865; see Perel, 34 NY2d at 465; People v Payne, 233 AD2d 787, 787, 650 N.Y.S.2d 833 [“Once a person has been placed in custody, his [or her] privacy has been compromised and the subsequent examination and testing of items seized at the time of arrest is permissible as a lesser-related intrusion incident to the arrest already effected”]). Once defendant’s property had been lawfully seized pursuant to the May 2009 warrant, he lacked a legitimate expectation of privacy in that property, notwithstanding the passage of time (see People v Natal, 75 NY2d 379, 384, 553 N.E.2d 239, 553 N.Y.S.2d 650, …).

Defense counsel waived the motions to suppress on the record because he needed some exculpatory evidence from the search and statement, and that was reasonable strategy. In dicta, the court says that the search incident, including the cell phone, had “no colorable basis.” People v Nguyen, 2011 NY Slip Op 9216, 90 A.D.3d 1330, 935 N.Y.S.2d 195 (3d Dept. 2011). Practice pointer: In § 45.18 of the Treatise, it is observed that sometimes the police likely violated the client’s right to be free from unreasonable search and seizure, but the product of the search may even be more helpful to the case as a whole: “Accordingly, counsel must always ultimately determine whether the defendant’s trial strategy would be aided or harmed by the admission or exclusion of the allegedly illegally seized evidence.” I’ve had cases where the product of the search wasn’t critical to the prosecution’s case but was actually exculpatory to the defense. So, why file a motion to suppress if you need it?

Defendant was being cited for urinating in public, and he tried to walk off, and then arrested for not complying. He was put in a police car, and his backpack was searched. Gant was distinguished as involving a car. The search of the backpack was valid. State v. Ellis, 355 S.W.3d 522 (Mo. App. 2011):

Although Gant was decided prior to defendant’s arrest, it applied to vehicle searches and the seizure of items in vehicles that are not immediately associated with the person of an arrestee. Defendant has not provided a citation to any published appellate opinion, much less one having precedential value in Missouri and decided prior to October 31, 2009, that extends Gant to a search of the personal effects on the person of an arrestee during a search of a person. The search conducted in this case strictly complied with binding precedent that had not been overruled or abrogated and that allowed, as part of the search of a person incident to arrest, the search of the personal effects on the person of an arrestee. The controlled substance recovered was therefore not subject to the exclusionary rule.

A polygraph is not a search under the Fourth Amendment. United States v. Woodenlegs, 2011 U.S. Dist. LEXIS 89888 (D. Mont. August 12, 2011):

The only federal court to publish an opinion addressing the issue of whether a polygraph examination is a Fourth Amendment search has rejected Defendant’s argument. In Stehney v. Perry, 907 F. Supp. 806, 822 (D.N.J.1995), aff’d 101 F.3d 925 (3d Cir. 1996), the court ruled that a polygraph does not constitute a search within the meaning of the Fourth Amendment. Additionally, although this Court does not typically cite to unpublished opinions, the Ninth Circuit has rejected this argument in their unpublished opinion in United States v. Jordan P.W., 168 Fed.Appx. 150 (9th Cir. 2006) when they stated: “We reject W.’s argument that a polygraph examination constitutes a search or seizure subject to the Fourth Amendment and know of no authority supporting it.”

Even if a polygraph examination was a search subject to the Fourth Amendment, Defendant gave his consent to the polygraph before it was administered and even suggested that he be allowed to take a polygraph when originally questioned by law enforcement.

Defendant was in possession of child pornography “approximately five months ago” before the search warrant, showing pictures to others. It was a fair inference that he still had it for the search warrant to issue. Steele v. State, 355 S.W.3d 746 (Tex. App.—Houston (1st Dist.) 2011)* (dissent; dissent).

“[*P12] The dispositive question concerning application of the automobile exception is whether probable cause supported the search. … Sommer concedes probable cause supported the search of his vehicle.” A vehicle is inherently mobile, even when the defendant is in jail. State v. Sommer, 2011 ND 151, 800 N.W.2d 853 (2011).*