Defendant can appeal his probation search condition even though he has not yet been subjected to a search. But, the condition is valid. On misdemeanor probation, he is not subject to a DNA collection condition. United States v. Baker, 658 F.3d 1050 (9th Cir. 2011).*

A 20 hour delay after an illegal arrest was sufficient here to attenuate the illegal arrest from the statement. Cox v. State, 421 Md. 630, 28 A.3d 687 (2011)*:

In this case, Petitioner and Mr. Johnson’s statements were made approximately 20 hours after Petitioner’s illegal arrest. Although certainly not dispositive, we agree with the State and the Court of Special Appeals that this amount of time provides sufficient separation between the illegal activity and the challenged statements to weigh in favor of a finding of attenuation. We stress, however, that, “[b]ecause a lengthy detention can be used to exploit an illegal arrest at least as easily as a brief detention, the temporal proximity factor has been labeled ‘ambiguous,’ and ‘relatively unimportant,’” and therefore our attenuation analysis does not end here. Ferguson v. State, 301 Md. at 550, 483 A.2d at 1259 (citations omitted).

Multiple traffic violations justified the stop, and the smell of fresh marijuana and PCP gave probable cause to search. United States v. Sheffield, 799 F. Supp. 2d 22 (D. D.C. 2011), Motion granted by, 2011 U.S. Dist. LEXIS 127178 (D.D.C., Nov. 3, 2011).*

The Fourth Amendment does not require lesser intrusive measures to enable a suspect to avoid an inventory of his car by getting somebody to come and get the car rather than seize it. United States v. Mensah, 796 F. Supp. 2d 265 (D. Mass. 2011):

Defendant’s main contention is that the troopers should have permitted him to call his girlfriend to retrieve the vehicle so that it would not have been “left unattended”, as required in order to tow and inventory pursuant to the MSP policies. That argument fails, however, because although the police may give defendant an opportunity to make alternate arrangements, no such opportunity is required by the Fourth Amendment. See Bertine, 479 U.S. at 373-74 (finding Fourth Amendment allows police to conduct inventory searches without offering defendant an opportunity to make other arrangements, even though such opportunity “would undoubtedly have been possible”). The First Circuit Court of Appeals has repeatedly affirmed that view:

law enforcement officials are not required to give arrestees the opportunity to make arrangements for their vehicles when deciding whether impoundment is appropriate … Case law supports the view that where a driver is arrested and there is no one immediately on hand to take possession, the officials have a legitimate non-investigatory reason for impounding the car.

United States v. Coccia, 446 F.3d 233, 240 & n.7 (1st Cir. 2006) (citing Vega-Encarnacion v. Babilonia, 344 F.3d 37, 41 (1st Cir. 2003)) (emphasis in original).

Failure to advise the defendant that he had a right to refuse to consent to a search of his car was an important factor under the state constitution [not a per se rule], and here led to a finding the search was not voluntary under the totality. State v. Pals, 805 N.W.2d 767 (Iowa Sup. 2011):

Wubben then asked Pals, “Say you don’t have anything, any weapons or drugs or anything like that in your vehicle, do you? Do you care if I take a look?” Wubben testified that Pals said, “[S]ure, go ahead.” Wubben and Pals exited the patrol car and approached Pals’ vehicle. Wubben began the search and, within two minutes, discovered a half gram of marijuana in the truck. At the conclusion of the search, Pals was handcuffed, advised of his Miranda rights, and placed under arrest.

. . .

The question of permissible scope of searches and seizures by law enforcement in the context of minor infractions is a major issue in criminal law today. The proper scope of police authority in the context of routine traffic stops has been the subject of countless commentaries, many cases, and a number of consent decrees. In particular, use of minor traffic infractions as a springboard to consent searches has generated charges of abuse and racial profiling. Alleged abuses by law enforcement authorities in the context of traffic stops have led to calls for major reform of police practices and even the abandonment of consent searches as a result of vehicle stops altogether.

A number of jurisdictions have entered into consent decrees that provide a framework to control the exercise of police authority during traffic stops. The consent decrees are variable. Some have prohibited law enforcement from seeking consent to search as a result of minor traffic infractions. Others have allowed consent searches if there is particularized suspicion. In some jurisdictions, reporting requirements have been imposed to inhibit the development of arbitrary police practices. In Iowa, one municipality has entered into a confidential settlement with the Iowa Civil Rights Commission related to alleged racial profiling in traffic stops. In addition to consent decrees, a number of jurisdictions have initiated limitations on consent searches pursuant to traffic stops as a matter of policy.

. . .

Several states, however, have rejected the Schneckloth approach and required that, in order for a search or seizure to be valid based on consent, the subject must provide a knowing and voluntary waiver under Zerbst. See, e.g., State v. Brown, 156 S.W.3d 722, 731-32 (Ark. 2004) (concluding that officers performing knock-and-talk procedure must inform the subject of his or her right to refuse consent to the search); Penick v. State, 440 So. 2d 547, 551 (Miss. 1983) (holding the voluntariness requirement requires a showing that the defendant knew of his or her right to refuse); State v. Johnson, 346 A.2d 66, 68 (N.J. 1975) (holding individual must have knowledge of right to refuse consent in order for consent to be deemed voluntary); State v. Ferrier, 960 P.2d 927, 932-33 (Wash. 1998) (stating that, under state constitution, knock-and-talk procedure to acquire consent requires officers to inform the subject of his or her right to refuse consent).

. . .

5. Determination of validity of consent searches under article I, section 8 in this case. In this case, we need not decide whether a knowing or intelligent waiver of search and seizure rights, such as that adopted in New Jersey, Washington, Mississippi, or Arkansas, is required to establish consent under article I, section 8 of the Iowa Constitution. An evaluation of such a per se requirement that police advise an individual of his or her right to decline to consent to a search, as is urged by LaFave and others, is reserved for another day.

Instead, we decide the case on a narrower ground. We hold, even if we apply an Iowa version of the Schneckloth-type “totality of the circumstances” test, the consent cannot be considered voluntary in this case under article I, section 8 of the Iowa Constitution. Our analysis in this case is similar to that of the Ohio Supreme Court when it addressed the consent issue on remand from the United States Supreme Court in Robinette III. (footnotes omitted)

Defendant’s possession of pepper spray was unlawful because of his record, and, on his arrest, his fanny pack could be searched incident to his arrest. State v. Pearson, 2011 MT 55, 359 Mont. 427, 251 P.3d 152 (2011).*

Defendant was lawfully stopped for crossing the centerline and speeding. After he turned over his paperwork, he fled on foot. That was an abandonment. United States v. Parker, 2011 U.S. Dist. LEXIS 29611 (E.D. Tenn. February 14, 2011).*

The trial court credited that defendant had consented to a search of his house, even after an illegal entry. Park v. State, 308 Ga. App. 648, 708 S.E.2d 614 (2011)*; Wilson v. State, 312 Ga. App. 166, 718 S.E.2d 31 (2011).*

The CI’s information that she had done drugs in defendant’s house led to a controlled buy and that was probable cause. State v. Johnson, 2011 ND 48, 795 N.W.2d 367 (2011).*

Officers talked with defendant about child pornography, and he denied accessing child porn sites, and he consented to them taking a computer. Analysis of the computer showed that it had stopped being used before purchases were made from child porn websites. Although the officers could not show that child pornography was actually downloaded on those purchases, something was and it probably was child porn. Therefore, the search warrant for other computers in the house was issued with probable cause. United States v. Rosenbeck, 2011 U.S. Dist. LEXIS 68070 (D. Mass. June 24, 2011).*

Defendant’s wife had apparent authority to consent to a search of a computer at home that she looked at and found nude pictures surreptitiously made of her daughter. United States v. Rowe, 2011 U.S. Dist. LEXIS 67852 (D. Mont. June 24, 2011).*

Defendant had no reasonable expectation of privacy in somebody else’s cell phone to complain of a wiretap. United States v. Degaule, 797 F. Supp. 2d 1332 (N.D. Ga. 2011),* R&R 797 F. Supp. 2d 1332 (N.D. Ga. 2011), Approved by, Adopted by, Motion denied by, 797 F. Supp. 2d 1332, 2011 U.S. Dist. LEXIS 67983 (N.D. Ga., June 24, 2011).*

The officer’s abrupt u-turn when he saw defendant turn away as he passed and pulling up next to the defendant and calling for backup was a seizure without reasonable suspicion. The officer admitted during questioning that the defendant was not free to leave. United States v. Whitson, 2011 U.S. Dist. LEXIS 106654 (M.D. Tenn. September 20, 2011)*:

The Court concludes that Terry, Brown and Williams control here. First, under Terry, the “manner” of Jayne’s approach to the Defendant is a significant element of Terry. 392 U.S. at 22. Here, the circumstances of the stop here are that when the Defendant turned away from him, Jayne made an abrupt u-turn and pulled his police vehicle “close to” the Defendant who was on a public sidewalk. The other key facts are, based upon Jayne’s testimony that his vehicle was readily identifiable as a police vehicle and Jayne called other officers, one of whom arrived within a minute. These facts establish a Terry stop at a point when Jayne lacked any reasonable suspicion.

Defendant consented to seizure and search of his computers for child pornography. [Since I’ve had two just like this where the defendant “acknowledged he had a problem,” I quote part of the court’s conclusion.] United States v. Emanuel, 440 Fed. Appx. 881 (11th Cir. 2011) (unpublished)*:

Accepting the magistrate’s findings that the officers, and not Emanuel, testified credibly, the interview occurred in Emanuel’s home, Emanuel was not prevented from leaving, and Emanuel did not ask to leave or ask the officers to leave. Emanuel invited the officers inside and cooperatively responded to their questions and requests. Emanuel was not threatened, coerced, restrained, handcuffed, patted down, required to answer questions, physically intimidated, or promised leniency. Although the officers were armed, they never removed their weapons from the holsters. The overall tone of the interview was “cordial,” “conversational,” and “very laid back.” Even though Emanuel exhibited signs of anxiety, he complied with the officers’ request for consent to release the computer by composing his own consent statement. Emanuel acknowledged that he had a problem, verbally asked for help, and reiterated in his consent statement that he was asking for help by releasing the computer.

When nobody answered at the front door and there were two operable cars in the driveway, it was reasonable for the police to go to the back door for a knock-and-talk. In the backyard under a tarp, but partially visible, was a 30-ton hydraulic press used for pressing cocaine into bricks. The court mentioned that no fences had to be crossed to get to the back door. United States v. Gonzalez, 441 Fed. Appx. 404 (8th Cir. 2011) (unpublished):

This Circuit has found invasions into an area where a person holds a reasonable expectation of privacy to be lawful so long as the intrusion was justified by “some legitimate reason for being present unconnected with a search directed against the accused.” United States v. Anderson, 552 F.2d 1296, 1299-1300 (8th Cir. 1977) (internal quotation marks and citation omitted). Furthermore, an entry is considered justified when officers have a “legitimate law enforcement objective.” United States v. Weston, 443 F.3d 661, 667 (8th Cir. 2006). And, we have held that general investigatory procedures, such as when agents visit a residence with the intention of questioning a suspect, qualify as a legitimate law enforcement objective. Anderson, 552 F.2d at 1298, 1300. Finally, where officers acting on such a legitimate law enforcement objective have a reasonable belief someone is home, our Circuit and others have found proceeding to an alternative entrance a reasonable invasion of the occupant’s privacy. See United States v. Raines, 243 F.3d 419, 420-21 (8th Cir. 2001) (holding officer reasonably proceeded to the rear of a house to serve civil process after no one answered the front door, there were several cars parked in the driveway, and the officer suspected the residents did not hear him knock, and the officer was following County procedure); Anderson, 552 F.2d at 1298, 1300 (holding agents did not violate occupant’s Fourth Amendment rights when no one answered the front door knock-and-announce, agents suspected someone was home because a light was visible in the house, and agents heard a dog barking); see also Hardesty v. Hamburg Tp., 461 F.3d 646, 653-54 (6th Cir. 2006) (stating “[o]fficers’ decision to proceed around the house to seek out a back door was within the scope of the knock and talk investigative technique” where “circumstances indicate that someone is home”: those circumstances existed when multiple cars were in the driveway and an interior light had been extinguished as officers approached); Alverez v. Montgomery Cnty., 147 F.3d 354, 356 (4th Cir. 1998) (“The Fourth Amendment does not prohibit police, attempting to speak with a homeowner, from entering the backyard when circumstances indicate they might find him there[.]”); United States v. James, 40 F.3d 850, 862 (7th Cir. 1994) (rev’d in part on other grounds, 516 U.S. 1022 (1995)) (“[W]here the back door of a residence is readily accessible to the general public, the Fourth Amendment is not implicated when police officers approach [*7] that door in a reasonable belief that it is a principal means of access to the dwelling.”); United States v. Bradshaw, 490 F.2d 1097, 1100-1101 (4th Cir. 1974) (“[The agent was] clearly entitled to go onto defendant’s premises in order to question him concerning the abandoned vehicle near his property. Furthermore, we cannot say that [the agent] exceeded the scope of his legitimate purpose for being there by walking around to the back door when he was unable to get an answer at the front door.”).

Defendant was a passenger of a vehicle stopped because the driver was allegedly under the influence. When the vehicle was being towed and the passenger was going into the police car, he was patted down, and drugs were found. Defendant filed a motion to suppress the stop, and the state was thus on notice that the stop was invalid. The state did not support the stop in defendant’s case, and the motion to suppress should have been granted. State v. Burnette, 2011 Ohio 6400, 2011 Ohio App. LEXIS 5257 (7th Dist. December 5, 2011).

The search of defendant’s cell phone was waived by the defendant. Then, the government had an independent source of subpoenaed records. On plain error, it isn’t. United States v. Moody, 664 F.3d 164 (7th Cir. 2011).*

The evidence supports the USMJ’s finding of consent. United States v. Dearing, 2011 U.S. Dist. LEXIS 144007 (N.D. Ohio December 14, 2011), R&R 2011 U.S. Dist. LEXIS 144005 (N.D. Ohio September 21, 2011).

Sexual assault by an auxiliary officer during a traffic stop was a § 1983 violation and was under color of law. Also, he pled guilty to a criminal civil rights violation and that would be collateral estoppel. Johnson v. Phillips, 664 F.3d 232 (5th Cir. 2011):

Johnson’s final constitutional claim is that Phillips violated her substantive due process right to bodily integrity. As of 2006, it was clearly established in this circuit that the commission of a sexual assault by a government official acting under color of law constitutes a violation of due process that shocks the conscience. Rogers v. City of Little Rock, Ark., 152 F.3d 790, 796 (8th Cir. 1998); Haberthur v. City of Raymore, Mo., 119 F.3d 720, 723 (8th Cir. 1997). Johnson alleges that Phillips pushed her up against the hood of her car, pulled her shorts and underwear to the side, took pictures of her genitals with his cellular phone, and penetrated her vagina with his finger. These allegations constitute “an egregious, nonconsensual entry into the body which was an exercise of power without any legitimate governmental objective.” Rogers, 152 F.3d at 797. Any reasonable officer would have known that these actions violated clearly established law.

Defendant was convicted of murdering his wife. The search warrant for defendant’s home surveillance system was based on probable cause and was not based on stale information. While it was a close case, doubts are resolved in favor of the search warrant, and it did not violate the Fourth Amendment. As to the stale information, it was excised from the affidavit and the remainder still provided probable cause. Pattison v. State, 958 N.E.2d 11 (Ind. App. 2011):

In summary, setting aside stale information and uncorroborated hearsay, the probable cause affidavit indicates that an autopsy produced evidence that conflicted with Pattison’s explanation for Lisa’s death, that Pattison and Lisa were having marital problems to the point that Pattison had filed for divorce, and that a camera surveillance system may have recorded footage outside of the Pattisons’ home on the day that Lisa died. We acknowledge that this is a close case. However, in determining whether an affidavit provided probable cause for the issuance of a search warrant, doubtful cases are to be resolved in favor of upholding the warrant. Mehring v. State, 884 N.E.2d 371, 377 (Ind. Ct. App. 2008), trans. denied. Thus, reasonable inferences drawn from the totality of the evidence indicate that there was a fair probability that evidence of murder would be found in the surveillance system, and the trial court had a reasonable basis to issue the search warrant. The admission of the surveillance system equipment and video into evidence did not violate the Fourth Amendment.

[Note: Probable cause is probable cause that evidence will be found, and proving a crime isn’t required. So, I don’t think that this is that close. The autopsy did not match defendant’s explanation. That alone should be enough to get the search warrant for the surveillance system to see if there is something that might contradict the defendant’s version. I’m not one to frivolously issue search warrants, but the law has always encouraged resort to search warrants, not discourage them. The moral to the story is that surveillance systems never seem to help somebody suspected of a crime. Cameras often lead to no-knock search warrants in drug and weapons cases, and cameras strongly suggest evidence can be found in the recorder. In a drug sale case, the recorder would have evidence of who is coming and going. It’s sort of like a burglar alarm: If you have a burglar alarm on your house, you’ve invited the police any time the alarm goes off. So, if you’re going to have a burglar alarm, don’t have a grow operation or contraband left out in plain view.]

I ignore 99% habeas cases because of Stone v. Powell coupled with AEDPA making them largely redundant since based on a pro se habeas petition, but occasionally one shows up worth reporting; but always a federal appeal:

2254 habeas petitioner had a “full and fair” opportunity to litigate his search and seizure claim in state court, and the habeas court could not second guess it’s decision and will not permit litigation of a defaulted claim. Fulcher v. Logan County Circuit Court, 2012 U.S. App. LEXIS 1908, 2012 FED App. 0112N (6th Cir. January 31, 2012) (unpublished):

Upon review, we hold that Fulcher had a full and fair opportunity to litigate his Fourth Amendment claims in state court. As his primary argument, Fulcher asserts that the Kentucky State Police acted in bad faith in obtaining the August 3 search warrant, which he contends was not supported by probable cause. This precise issue, however, was addressed at trial and reviewed by the Kentucky Supreme Court. Fulcher II, 2007 Ky. Unpub. LEXIS 45, 2007 WL 1536854, at *3-*4. Moreover, there is no evidence indicating that Fulcher’s presentation of his claim was somehow frustrated. Accordingly, Fulcher’s arguments before this court, which go to the “correctness” of the Kentucky Supreme Court’s analysis, will not be considered. Riley, 674 F.2d at 526.

With regard to the July 24 search, Fulcher again asserts that the warrant was not supported by probable cause. This claim, like the first, is not cognizable on habeas review as Fulcher had a “full and fair” opportunity to litigate this claim in state court. Id. What’s more, this claim is procedurally defaulted, as Fulcher failed to challenge the July 24 search on direct appeal and he may no longer assert the claim in state-court proceedings. Fulcher II, 2007 Ky. Unpub. LEXIS 45, 2007 WL 1536854, at *3 n.1. Accordingly, the claim is barred.

Remember, the only exception to “full and fair” is ineffective assistance under Kimmelman v. Morrison.

Because the government showed that the inventory was under an established policy, the inventory was valid. United States v. $677,660.00 in United States Currency, 2012 U.S. Dist. LEXIS 12948 (N.D. Ohio February 2, 2012).*

Defendant’s driving 80 miles an hour on the wrong side of the road, trying to elude police, and then crashing the car and fleeing was probable cause to search the car. United States v. Christian, 2012 U.S. Dist. LEXIS 12147 (N.D. Ga. January 5, 2012).*

Defendant got out of the vehicle searched, but he never alleged any facts that suggested that he had standing in the first place. United States v. Harris, 2012 U.S. Dist. LEXIS 12976 (W.D. Ky. February 2, 2012).*

The CI’s tale here was similar to Draper, and that provided probable cause. United States v. Sanchez-Manzanarez, 2012 U.S. Dist. LEXIS 12757 (S.D. N.Y. February 2, 2012).*

Computer search warrant was badly drafted, and it lacked particularity. However, the good faith exception saved the search because the officer sought counsel from the USMJ and AUSA in executing it. United States v. Otero, 563 F.3d 1127 (10th Cir. 2009):

Because of this, our case law requires that “warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.” Riccardi, 405 F.3d at 862 (emphasis added).

Wisely, the government does not contest that a warrant authorizing a search of “any and all information and/or data” stored on a computer would be anything but the sort of wide-ranging search that fails to satisfy the particularity requirement. Its claim, rather, is that under a natural reading of the warrant the computer search is limited to uncovering only evidence of the mail and credit card theft along Ms. Otero’s delivery route. In other words, paragraphs six, seven, eight, and nine, which fall under the heading “COMPUTER ITEMS TO BE SEIZED,” are limited by paragraphs two, three, and five, which fall under the separate heading of “ITEMS TO BE SEIZED” and restrict the search to “information related to or pertaining to the theft of mail, the fraudulent credit cards, bank fraud and conspiracy.” App. 63.

It is true that “practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the place to be searched.” United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998) (quoting United States v. Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997)). A warrant need not necessarily survive a hyper-technical sentence diagraming and comply with the best practices of Strunk & White to satisfy the particularity requirement. Nor is it beyond comprehension that the inspectors in this case would subjectively read the provisions pertaining to the computer search as being subject to the same limitations as the rest of the warrant, as the district court found they did. We agree with the district court, however, that the warrant describes the items to be seized with neither technical precision nor practical accuracy, and it therefore lacks sufficient particularity.

. . .

The present case does not precisely mirror the facts of Riccardi–here, the officer who wrote the affidavit was not directly involved in the forensic analysis of the computer, but instead instructed another officer on what to search for–but we nonetheless find them substantially similar. The fact that the officer conducting the computer search had not been involved from the beginning of the investigation does not alone militate against good faith when that officer received–and, more importantly, followed–search instructions that limited the scope of his search to crimes for which there was probable cause. Moreover, one of the more important facts that the two share in common is the officers’ attempts to satisfy all legal requirements by consulting a lawyer. See id. at 864. (“By consulting the prosecutor, they showed their good faith in compliance with constitutional requirements.”). Indeed, a frequent criticism of the good faith exception is that it encourages officers not to make these consultations and “risk that some conscientious prosecutor … will say the application is insufficient when, if some magistrate can be induced to issue a warrant on the basis of it, the affidavit is thereafter virtually immune from challenge[.]” WAYNE R. LEFAVE, 1 SEARCH AND SEIZURE 68 (4th ed.). The fact that Inspector Herman, like the officer in Riccardi, made this step is an important indicator of her good faith. If more officers took such precautions we would have greater rather than less protection of Fourth Amendment rights.

While the state search warrant rule defines “law enforcement officer” as a state law enforcement officer, it does not violate the rule to have a DEA agent along for the ride participating. Long v. State, 2012 Ohio 366, 2012 Ohio App. LEXIS 306 (8th Dist. February 2, 2012):

As stated by this court in State v. Joiner, 8th Dist. No. 81394, 2003 Ohio 3324, 2003 WL 21468900, “[f]ederal and state officers often work in conjunction in criminal cases and their cooperating in the execution of a search warrant is acceptable provided they are searching for the same contraband.” See also State v. Siegrist, 11th Dist. No. 10-088, 1984 Ohio App. LEXIS 10955, 1984 WL 7295 (Sept. 28, 1984) (upholding warrant allegedly requested by DEA agent but executed by local police); State v. Miller, 9th Dist. No. 12198, 1986 Ohio App. LEXIS 5412, 1986 WL 1127 (Jan. 22, 1986) (stating that if officers from the jurisdiction where the search took place are present, the presence of unauthorized officers is immaterial); State v. Ridgeway, 4th Dist. No. 00CA19, 2001 Ohio 2655, 2001 WL 1710397 (holding that DEA agent could participate in search on local warrant).

A factor in voluntariness is knowledge of the right to refuse, and apparently this is almost a determinative factor when it has been given. United States v. Durante, 2012 U.S. Dist. LEXIS 14533 (D. N.J. February 7, 2012).* [Note: Why don’t police officers do this in writing or on video or audio in every case? Based on what I observed from the Arkansas State Police requiring it in written consent forms for 15 years, it seemed to have no appreciable effect on the number of consents still granted by suspects. Believe it or not. And it cut off the argument over the consent not being voluntary. I find this a huge lesson learned as a litigator and writer on the subject. Yet, officers are still reticent to seek memorialization of consent. People still confess on video.]

It doesn’t matter that the police characterized the search of the car as a search incident if it was valid under the automobile exception. United States v. Wooliver, 2012 U.S. Dist. LEXIS 14439 (W.D. Mo. February 7, 2012),* R&R 2011 U.S. Dist. LEXIS 152896 (W.D.Mo. November 2, 2011).

The evidence was uncontroverted that defendant consented to a search of his backpack. United States v. Murphy, 2012 U.S. App. LEXIS 2272 (3d Cir. February 6, 2012) (unpublished).*

Under the standard that probable cause is present when a drug dog that is reliable alerts, unreliability is not shown by the absence of drugs when the dog alerts. Dogs alert on odor and not just presence of drugs. The dog’s alerts in the past were not always false positives as defendant argued; instead, they were indications of the presence of drugs in the past. State v. Nguyen, 2007 SD 4, 726 N.W.2d 871 (January 3, 2007).

Because law in the circuit was unclear, the fact a city officer was outside of his jurisdiction when he stopped plaintiff is considered a factor in overall reasonableness of an arrest under the Fourth Amendment. Rose v. City of Mulberry, 2007 U.S. Dist. LEXIS 372 (W.D. Ark. January 4, 2007).*

Pringle supported an arrest of the defendants who were bar bouncers sitting at a table when cocaine was tossed below the table. There was a strong inference in the case that both defendants were dealing drugs in the bar and both knew about each other’s activities. People v. Long, 308 Ill. Dec. 270, 861 N.E.2d 335 (2d Dist. January 3, 2007):

We recognize that the Court in Pringle distinguished the relatively small automobile that the defendant and his companions occupied from the public tavern in which the defendant in Ybarra was located. Pringle, 540 U.S. at 373, 157 L. Ed. 2d at 776-77, 124 S. Ct. at 801. In this case, however, it is important to note that an inference of common enterprise is not reached based on Vargas’s and defendant’s presence in a public tavern. Rather, the inference is based on their roles as bouncers, and the concomitant activities of bouncers, in a bar where the bouncers were known to deal cocaine.

While past cases in Tennessee have held that crossing the white line once is not reasonable suspicion, crossing three times is. State v. Gothard, 2006 Tenn. Crim. App. LEXIS 1028 (December 21, 2006).*

Police had a search warrant for drugs based on an informant buy. When executing the warrant, lifting floorboards was within the scope of search. Although there was only a small quantity of drugs involved, the floorboard could be removed by hand and without tools. United States v. Handy, 2007 U.S. Dist. LEXIS 34739 (D. Mass. May 11, 2007).

A technical violation of the pen register statute, 18 U.S.C. § 3122, was a statutory violation only and not a constitutional violation. Therefore, suppression was not required under Smith v. Maryland. Congress did not provide for a suppression remedy, so the court would not. (Hudson was cited at the end of a footnote.) United States v. German, 486 F.3d 849 (5th Cir. 2007):

Moreover, even in constitutional cases the Supreme Court has recently cautioned against expanding the exclusionary rule, emphasizing that suppression is a “last resort” that generates “substantial social costs.” Hudson v. Michigan, 126 S. Ct. 2159, 2163 (2006).

Brief delay of a FedEx package in transit at Orange County airport for a dog sniff because it was selected for a dog sniff with six others was not an unreasonable interference with the movement of the package. The dog alerted and a warrant was obtained. United States v. Quoc Viet Hoang, 486 F.3d 1156 (9th Cir. 2007).*

Defendant’s unconditional plea waived his search issue. If he wants to raise that issue, it should be by a post-conviction petition. United States v. Tucker, 232 Fed. Appx. 597 (7th Cir. 2007)* (unpublished).

Stop of defendant’s rental car for having tags that did not match the car was reasonable. United States v. Salazar, 245 Fed. Appx. 1 (11th Cir. 2007)* (unpublished).

Virginia law provides that persons arrested for certain violent felonies shall have DNA samples taken on their arrest. Va. Code Ann. § 19.2-310.2:1:

Every person arrested for the commission or attempted commission of a violent felony as defined in § 19.2-297.1 or a violation or attempt to commit a violation of § 18.2-31 [capital murder], 18.2-89 [burglary], 18.2-90 [“Entering dwelling house, etc., with intent to commit murder, rape, robbery or arson”], 18.2-91 [same; “with intent to commit larceny, assault and battery or other felony”], or 18.2-92 [same; other misdemeanor], shall have a sample of his saliva or tissue taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. After a determination by a magistrate or a grand jury that probable cause exists for the arrest, a sample shall be taken prior to the person’s release from custody. The analysis shall be performed by the Department of Forensic Science or other entity designated by the Department. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the Department in a DNA data bank and shall be made available as provided in § 19.2-310.5. (bracketed material added)

The Virginia Supreme Court, relying on all cases permitting the taking of DNA samples after conviction [indeed, no case has found taking DNA after conviction unconstitutional], and finding the taking of DNA no different than fingerprinting, finds the taking of DNA on arrest to be minimally intrusive and not a violation of the Fourth Amendment. Defendant was linked to a rape occurring in 1991 after his DNA was taken when he was arrested for rape in 2003. Anderson v. Commonwealth, 274 Va. 469, 650 S.E.2d 702 (2007), aff’g 48 Va. App. 704, 718, 634 S.E.2d 372, 379 (2006):

Some state appellate courts have also concluded that DNA samples should be treated like fingerprints. See State v. Raines, 857 A.2d 19, 33 (Md. 2004) (“The purpose [of the DNA profile] is akin to that of a fingerprint. As such, appellee and other incarcerated individuals have little, if any, expectation of privacy in their identity.”); State v. O’Hagen, 914 A.2d 267, 280 (N.J. 2007) (“We harbor no doubt that the taking of a buccal cheek swab is a very minor physical intrusion upon the person …. [T]hat intrusion is no more intrusive than the fingerprint procedure and the taking of one’s photograph that a person must already undergo as part of the normal arrest process.”); and State v. Brown, 157 P.3d 301, 303 (Or. Ct. App. 2007) (“Because [using a swab to take a DNA sample from the mucous membrane of an arrestee’s cheek] is akin to the fingerprinting of a person in custody, we conclude that the seizure of defendant’s DNA did not constitute an unreasonable seizure under [the Constitution.]”).

Fingerprinting an arrested suspect has long been considered a part of the routine booking process. Similarly, the taking of a DNA sample by minimally intrusive means “is justified by the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” 3 Wayne R. LaFave, Search and Seizure § 5.3(c), at 168 (4th ed. 2004).

offenses involved in this appeal. He maintains that the taking of saliva was a “suspicionless” seizure[fn2] contrary to the Fourth Amendment and that all evidence flowing from such a search must be suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 484-85 (1963). In support of his argument, Anderson cites City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000), wherein the Supreme Court of the United States held that “[w]hen law enforcement authorities pursue primarily general crime control purposes at checkpoints … stops can only be justified by some quantum of individualized suspicion.”

2. While Anderson refers to the taking of buccal swabs as a “seizure,” it is more appropriately referred to as a “search.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-17 (1989); Cupp v. Murphy, 412 U.S. 291, 295 (1973); Schmerber v. California, 384 U.S. 757, 767-68 (1966). See also United States v. Amerson, 483 F.3d 73, 77 (2nd Cir. 2007).

Further, Anderson relies upon Ferguson v. City of Charleston, 532 U.S. 67 (2001), for the proposition that searches conducted for general law enforcement purposes cannot be excepted from requirements of probable cause. Ferguson involved a cooperative program between hospital authorities and law enforcement officers to gather evidence of pregnant women using illegal drugs. Id. at 69-73. The analysis used by the Court focused upon a line of cases comprising the so-called “special needs doctrine” justifying suspicionless searches in narrowly defined circumstances. The Court, in Ferguson, rejected the argument that the cooperative program between hospital personnel and law enforcement officers met the test of the “special needs doctrine.” Id. at 84.

Anderson’s reliance upon Edmond and Ferguson is misplaced. As previously established, the taking of a DNA sample pursuant to § 19.2-310.2:1 is permissible as a part of routine booking procedures. As such, no “additional finding of individualized suspicion” much less probable cause, must be established before the sample may be obtained. Jones, 962 F.2d at 306.

Comment: Taking of DNA is hard to compare to fingerprinting. But, that was the easiest way for this court to affirm. As the Supreme Court said in Arizona v. Hicks, 480 U.S. 321, 325 (1987), “A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” If we look at Skinner v. Railway Labor Executives Assn., 489 U.S. 602 (1989), a BAC test of a railroad worker was a search, but it was reasonable if conducted on suspicion after an accident:

Unlike the blood-testing procedure at issue in Schmerber, the procedures prescribed by the FRA regulations for collecting and testing urine samples do not entail a surgical intrusion into the body. It is not disputed, however, that chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic. …

Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.

The Skinner Court held that:

This governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also “require[s] and justif[ies] the exercise of supervision to assure that the restrictions are in fact observed.” Griffin v. Wisconsin, supra, at 875. The question that remains, then, is whether the Government’s need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion.

Our cases indicate that even a search that may be performed without a warrant must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law. See New Jersey v. T.L.O., supra, at 340. When the balance of interests precludes insistence on a showing of probable cause, we have usually required “some quantum of individualized suspicion” before concluding that a search is reasonable. See, e. g., United States v. Martinez-Fuerte, 428 U.S., at 560. We made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. Id., at 561. In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. We believe this is true of the intrusions in question here.

Also, Ferguson v. City of Charleston, 532 U.S. 67 (2001), distinguished by the Virginia court, almost compels the opposite result. That court found reliance “misplaced” but then utterly fails, without any convincing language, to say why.

What happens when the cold case is solved based on an arrest and the person is tried on the cold case first? The defendant should get to try the suppression hearing of the current case in the cold case, but it does not really matter to Virginia because the question of probable cause or reasonable suspicion is irrelevant. The accused would have to be acquitted of the current crime to suppress. Even then, I am sure the Virginia court would find a way around that.

Obviously a dangerous precedent.

Officers had probable cause to stop defendant based on predictive behavior from a CI that proved accurate. After the defendant was patted down, the officer sought and got permission from a supervisor to pull out the waistband of defendant’s underwear and look inside, where drugs were found. That search was not a strip search and was reasonable the way it was conducted. [This is based, in part, on the fact that the defendant wore his pants hanging down, already exposing his underwear to the public.] Jenkins v. State, 978 So. 2d 116 (Fla. 2008):

Based upon these findings, in our view nothing equivalent to a strip search occurred in the instant case. Rather, the search here qualifies as a “reach-in” search, where the suspect remains clothed during the search and the suspect’s genitals are not visible to onlookers. See United States v. Williams, 477 F.3d 974, 977 (8th Cir.), cert. denied, 128 S. Ct. 237 (2007). As described in the credible evidence, Officer Bonollo merely pulled back Jenkins’ boxer shorts, which were already exposed to public view, looked down into Jenkins’ buttocks area, viewed approximately two inches of the plastic bag protruding up from between Jenkins’ buttocks, and retrieved the bag. Logistically speaking, unless a civilian was standing immediately adjacent to Officer Bonollo, a highly unlikely possibility not supported by the evidence here, there is no way that he or she would have been able to view Jenkins’ buttocks. Thus, the contention that Jenkins was subject to an embarrassing and humiliating search in public is simply inconsistent with the facts as determined by the trial court.

Defendant was the subject of a cold case hit on his DNA after his DNA was taken years earlier after he showed up at an ER with a gunshot wound and the ER called the police. They arrived and seized defendant’s clothing which was later subjected to DNA testing. The seizure of the clothing was permissible under plain view but not inevitable discovery or implied consent. “[U]nder the totality of the circumstances, the Court finds that the extraction of Davis’ DNA profile for comparison with the evidentiary sample from the Neal murder was reasonable. The compelling government interest in potentially identifying the perpetrator in an ongoing homicide investigation outweighs the somewhat diminished privacy interests in his DNA that Davis retained. Therefore, the extraction of Davis’ DNA from his clothing was a lawful search under the Fourth Amendment.” It was a violation of his privacy interest in putting his DNA profile in CODIS where he was a victim. United States v. Davis, 657 F. Supp. 2d 630 (D. Md. 2009):

c) Conclusion As To Placement of Davis’ Profile In Database

The above analysis demonstrates that there are significant privacy interests implicated by the maintenance of one’s DNA profile in a government database, above and beyond those implicated by the testing and comparison of one’s DNA profile to evidence from a single, specific crime. Were law enforcement permitted to include individuals’ DNA profiles in searchable databases under these circumstances, it would open “a backdoor to population-wide data banking.” Joh, Reclaiming “Abandoned” DNA at 874. If the Fourth Amendment imposes no restrictions on the indefinite retention of DNA profiles developed from “abandoned” DNA or DNA lawfully in police possession for another purpose, then “the means by which total population DNA data banking might be achieved have arrived without general public awareness and thus without discussion of how it might be regulated against abuse.” Id. at 884.

Although we may eventually retain DNA profiles as routinely as we retain fingerprints today, the Court does not believe that day has yet arrived:

Since investigators should not treat ordinary private citizens like criminals, the analysis should differ and courts should consider additional factors. Similar to the case of convicted criminals, obtaining the DNA of ordinary citizens through covert methods is not overly invasive. Unlike convicted criminals, however, an ordinary citizen, solely by virtue of police suspicion, does not have an increased tendency to commit crimes. If the covertly obtained DNA profile of an ordinary citizen is included in a database, authorities have the capabilities to identify a near hit, which might indicate that he or she is a close relative to the perpetrator of a crime. Furthermore, DNA has the potential to reveal a wide range of personal information, including physical characteristics, medical information (such as susceptibility to disease), ancestral and familial information. Practically speaking, police could not obtain these kinds of private information without a search warrant or without first having gained the trust and confidence of the individual.

Matejik, DNA Sampling at 85.

However, it was a close question, and the court declines to apply the exclusionary rule to the DNA.

D. Application of the Exclusionary Rule Is Not Appropriate In This Case

. . .

In this case, the only constitutional violation occurred when Prince George’s County homicide detectives, after comparing Davis’ DNA profile with the sample from the Neal homicide, retained Davis’ profile in the local CODIS database. As the length and intricacy of this Court’s analysis of that decision should indicate, whatever error existed was hardly flagrant. Given precedents such as Edwards, the officers most likely believed that Davis had no significant privacy interest in his clothing because it was lawfully within police custody. Then, once the profile existed, the officers placed it within the database for use in any potential future investigations; it is certainly counterintuitive that information, once gained by police, should not be retained. However, in the unique discipline of DNA analysis, as the Court’s analysis above demonstrates, this is what the Fourth Amendment requires. Nonetheless, the placement of Davis’ profile in the database can hardly be called reckless, flagrant, or systematic, and is negligent at worst.

The actions of the officers investigating the Schwindler murder are even less culpable. When those officers realized that the culprits in the Schwindler robbery/murder had left DNA evidence behind, detectives simply utilized an investigative resource that was available to them. They ran a comparison of the crime scene evidence against the profiles contained in the local CODIS database and came up with a “hit.” This is precisely why such databases were created–to assist in solving crimes where more traditional investigative techniques may not be successful. The detectives investigating the Schwindler murder had no knowledge of the circumstances under which Davis’ DNA came to be included in the database, nor were they under any obligation to make inquiries about them. Officers are entitled to rely upon the presumptive legality of any DNA profile contained within their database. Therefore, as to these detectives, there is no behavior that needs to be deterred by application of the exclusionary rule.

As for the officers who placed Davis’ profile in the database, the Court finds that excluding the DNA evidence in this case would result in only marginal deterrence, if any. First of all, the relative rarity of the factual scenario presented here–a former victim’s DNA already being in police custody when that victim later becomes a suspect–does not create a great need to deter similar actions in the future. Errors that arise from “nonrecurring and attenuated negligence [are] far removed from the core concerns that led us to adopt the [exclusionary] rule in the first place.” Herring, 129 S. Ct. at 702. Furthermore, the good faith rule does not require that exclusion of the evidence have no deterrent effect whatsoever. As the Court noted in Herring, “we do not suggest that the exclusion of this evidence could have no deterrent effect. But our cases require any deterrence to ‘be weighed against the substantial social costs exacted by the exclusionary rule,’ and here exclusion is not worth the cost.” Id. at 702 n.4 (quoting Illinois v. Krull, 480 U.S. at 352-353 (internal quotation and citations omitted)) (emphasis added).

This Court reaches the same conclusion in the instant case. Any deterrent effect that could be achieved by application of the exclusionary rule in this case would be vastly outweighed by the costs that would be incurred by suppression of the powerfully inculpatory and reliable DNA evidence. The marginal deterrence that might be achieved by suppression of the evidence in this case — potentially preventing police from placing DNA profiles obtained from those with undiminished privacy expectations in their genetic information (already a rare occurrence) into law enforcement databases — simply cannot justify keeping the DNA evidence from the jury and disrupting the truth-seeking function of a criminal trial.

III. CONCLUSION

The seizure, nine years ago, of Defendant’s blood-stained clothing, the later extraction of DNA therefrom, and the entry of his DNA profile into the local CODIS database has generated a host of interesting and novel legal issues that have now been addressed and resolved. Ultimately, any Fourth Amendment violations were, at worst, close calls over which many reasonable minds could differ. There was certainly no blatant or flagrant police action in deliberate disregard of the Defendant’s rights that would warrant the remedy of suppression.

This is a fascinating and important case on all the issues. The discussion of Davis’s privacy interest in his DNA from the police just scarfing it up and putting it in CODIS for no apparent reason is valuable. Read this case if you can; the court posted it on its website. It is 101 pages long.