Defendant was neither the owner of the vehicle nor the target of the investigation, and he had no standing to challenge placing a GPS device on the truck. United States v. Hernandez, 647 F.3d 216 (5th Cir. 2011):

Moreover, the government did not place the GPS device with the intent of tracking Hernandez. (Angel, on the other hand, was under court-approved surveillance by wiretaps.) There is no suggestion that the government knew Hernandez would drive the truck to California on a drug run. Hernandez “has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas, 439 U.S. at 130 n.1. He has not demonstrated that he had “a legitimate expectation of privacy in the invaded place.” Rakas, 439 U.S. at 143. Any expectation of privacy he might have is not based in “concepts of real or personal property law” or “understandings that are recognized and permitted by society.” Carter, 525 U.S. at 88. Thus, Hernandez lacks standing to challenge the placement of the GPS device.

Warrant for a particular place with the plaintiff’s logo on the door within a multiple occupancy building satisfied the particularity requirement of the Fourth Amendment. The officer had been investigating the target for two years. Signature Pharmacy, Inc. v. Wright, 438 Fed. Appx. 741 (11th Cir. 2011) (unpublished).*

WBZ TV Boston: FBI Uses Chainsaw In Raid On Wrong Fitchburg Apartment by Jim Armstrong:

FITCHBURG (CBS) – It’s going to be a while before things get back to normal for Judy Sanchez and her three-year-old daughter.

Last Thursday, a team of FBI agents swarmed her apartment building as part of a massive citywide drug and weapons gang raid.

Trouble is, Sanchez lives in apartment 2R.

The suspect they were after is in 2F.

At 6:04 last Thursday morning, just before Sanchez’ alarm was set to go off, she heard a pounding outside her second floor apartment.

Defendant was arrested outside his house, and the police had no reason to believe anyone else was in the house. A protective sweep of the house was invalid, and the view of a gun case was suppressed and had to be excised from the affidavit for later search warrant. The affidavit for the search warrant was plagued with exaggerations and misstatements which greatly concerns the court because this was a double homicide investigation. The court also rejects the “clothing and accessories exception” proferred by the government. United States v. McMillian, 2012 U.S. Dist. LEXIS 10841 (E.D. Wis. January 27, 2012):

The “clothing and accessories” exception purports to justify a law enforcement officer’s warrantless entry into a partially clothed arrestee’s home for the limited purpose of retrieving clothing or shoes for that arrestee. United States v. Jackson, 414 F. Supp. 2d 495, 504 (D.N.J. 2006). A review of the cases from the circuits that have recognized the exception shows that the exception generally fall under one of two categories. The first and more common category is an off-shoot of the already recognized exigent circumstances exception to the Fourth Amendment. United States v. Clay, 408 F.3d 214 (5th Cir. 2005) (finding that the need to procure footwear for barefoot arrestee constituted exigent circumstances justifying officer’s return to the bedroom); United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000) (finding an arrestee’s partially clothed status may constitute an exigency justifying an officer’s temporary reentry into the arrestee’s home to retrieve clothes reasonably calculated to lessen the risk of injury to the arrestee); see also United States v. Nascimento, 491 F.3d 25, 50 (1st Cir. 2007) (finding the need to dress a defendant may constitute an exigency justifying officers in entering another room to obtain clothing; however, also finding “[g]eneralizations are hazardous”); United States v. Butler, 980 F.2d 619, 621-22 (10th Cir. 1992) (allowing officers to retrieve shoes for defendant because broken glass in the area where defendant was arrested presented a legitimate health and safety risk; however, finding that “entry into the defendant’s residence cannot be effected, in the absence of consent or exigent circumstances, solely upon the desire of law enforcement officers to complete the arrestee’s wardrobe”).

This is distinct from the situation in Washington v. Chrisman, 455 U.S. 1 (1982). In that case, the police arrested a student on campus but allowed him to go to his dorm room to get his identification card. While in the dorm room, the police observed contraband in plain view. The court held that the officer’s entry into the student’s dorm room was lawful. Id. at 7. The Court explained that incident to his arrest of the student, the officer’s “need to ensure his own safety-as well as the integrity of the arrest” was “compelling” justification for him to accompany the student to his dorm room. Id.

The second and outlier category stems from a so-called duty to find clothing for a defendant. United States v. DiStefano, 555 F.2d 1094 (2nd Cir. 1977) (finding the officers had a duty to find clothing for an arrestee clad only in a nightgown and bathrobe or permit her to do so). To date, two circuits have rejected the underlying rationale for the clothing exception. United States v. Whitten, 706 F.2d 1000, 1016 (9th Cir. 1983) (finding officer’s entry into room without specific request or consent unlawful); United States v. Kinney, 638 F.2d 941, 945 (6th Cir. 1981) (entry cannot be justified when defendant did not request permission to secure additional clothing and did not consent to an entry of his home).

The Seventh Circuit has not addressed either variant of the clothing exception. Indeed, the clothing exception appears to expand the Supreme Court’s and this circuit’s exigent circumstances line of cases. U.S. v. Marshall, 157 F.3d 477, 482 (7th Cir. 1998) (“Exigent circumstances exist when there is a compelling need for official action and no time to secure a warrant”); U.S. v. Webb, 83 F.3d 913, 916 (7th Cir. 1996) (“Exigent circumstances exist when there is a reasonable belief by police that their safety, or the safety of the public, may be threatened.”). Accordingly, I agree with the district court in Jackson, 414 F. Supp. 2d at 504 n.11, that it is “a dubious proposition that the Court contemplated the evanescent risks associated with transporting a barefoot or shirtless criminal suspect to police headquarters as exigent circumstances sufficient to dispense with the Fourth Amendment’s warrant requirement.”

Moreover, even if I were to apply the “clothing and accessories” exception advanced by the government, the record does not support that McMillian’s lack of shoes amounted to an exigent circumstance or posed any risk to his health or safety. McMillian was arrested in the daytime, in July, in Milwaukee – not in the dead of night in a typical Milwaukee winter. See, e.g., Gwinn, 219 F.3d 326 at 333 (the court found exigent circumstance to enter trailer and retrieve clothing and shoes where defendant was arrested shirtless and barefooted on a cool late night in May in a remote location in rural West Virginia). There is also no evidence that any dangerous conditions such as broken glass, hazardous waste, not even rain existed to impede McMillian’s walk to the squad car. See e.g., Butler, 980 F.2d at 621-22 (court found police’s warrantless entry into defendant’s residence justified by health and safety concern for barefooted defendant who was arrested in area with broken glass).

Given the lack of authority from the Seventh Circuit on this exception and the lack of a factual record justifying its application, I do not find that the “clothing and accessories” exception validates the warrantless entry into the bedroom in this case.

The Raw Story: Ron Paul: TSA ‘totally voids’ the Fourth Amendment by David Edwards:

Republican presidential candidate Ron Paul said on Sunday that airport security should be turned over to private corporations because the Transportation and Security Administration (TSA) effectively “voids” the Fourth Amendment.

Paul’s son, Sen. Rand Paul (R-KY), claimed last week that he had been “detained” by the TSA for refusing an intrusive pat down at an airport in Nashville, Tennessee.

. . .

In 1973, the U.S. Court of Appeals for the Ninth Circuit ruled that the Fourth Amendment did not apply to airport security, “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.”

Paul did not say how privatizing airport screenings would circumvent the Ninth Circuit’s [1973] ruling [that the Fourth Amendment doesn’t apply to airport screenings].

Watch this video from Fox’s Fox News Sunday, broadcast Jan. 29, 2012.

[Note: If private actors fulfilling a government function violate the Fourth Amendment, what difference does it make? The Fourth Amendment does apply to airport screenings–the question is reasonableness and special needs. TV talking heads don’t get it and never will because the issue can’t be explained in one sentence.]

The mother of a 6 year old girl told her school teacher that her daughter had a doctor’s appointment because of a probable urinary tract infection. The school officials took it upon themselves to have the school nurse inspect the girl’s vagina without telling the parents, and this was an unreasonable search with no qualified immunity. Enough case law had developed by the time this happened that school officials were on notice it was unreasonable and excessive. The school’s reliance on “special needs” completely fails. Hearring v. Sliwowski, 2012 U.S. Dist. LEXIS 9578 (M.D. Tenn. January 26, 2012), USMJ R&R overruled:

As to whether, under these decisions, Plaintiff states a Fourth Amendment violation for the search of B.H., the Court concludes that the nature of the privacy interest here, the exposure of a 6 year-old girl’s labia, is far greater than the students’ privacy interests in T.L.O., Safford, Beard and Brannum. The nature of the search was B.H.’s pulling down her pants and underwear as well as the separation of her vaginal area before a nurse and also a school official that resulted in embarrassment and humiliation to B.H. There is proof that this search was without a medical justification or emergency, without parental consent and was contrary to professional and state standards for public school nurses. Based upon these decisions and facts, the Court concludes that Plaintiff states and proves a violation of B.H.’s Fourth Amendment right to be free from such invasive and unjustified searches of her person by a public school nurse.

The Magistrate Judge also cited the “special needs” doctrine as justifying Sliwowski’s search, as a school nurse inquiring about the need for possible medical treatment. (Docket Entry No. 69, Report and Recommendation at 12-13) (Sliwowski “was not trying to prevent an imminent injury when she examined B.H. Instead, Nusre Sliwowski was trying to determine what medical care, if any, B.H. required for her existing medical condition”).

The “special needs” doctrine applies where an important governmental interest justifies excusing the probable cause requirement of the Fourth Amendment, Ferguson v. City of Charleston, 532 U.S. 67, 76 n.7 (2001), or where compliance with Fourth Amendment standards is “impracticable.” Bd. of Educ. of Independent School Dist. No.92 of Pottawatomie County v. Earls, 536 U.S. 822, 829 (2002) (drug testing of middle and high school students). In T.L.O., the Supreme Court recognized that school officials act in loco parentis for school children and “the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause.” 469 U.S. at 341.

In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), the Tenth Circuit considered this special needs doctrine in the context of genital examinations of pre-school students who were subjected to such searches. There, the school employed an agency to conduct health examinations, but the agency had to secure parental permission for such examinations. The district court ruled that the students’ Fourth Amendment rights were violated given the absence of a medical emergency or parental consent. The Tenth Circuit held that the special needs doctrine did not apply because there was not any showing that securing a parent’s consent was impracticable. Id at 1214-15. …

. . .

Based upon these collective authorities, the Court concludes that the fundamental dignity of a young person’s body is so obvious and the cited Supreme Court and Sixth Circuit decisions since 1984 provide more than fair warnings to school officials that such intrusive searches of students cannot be made by school officials without justification. The search of B.H. was not an emergency situation and was contrary to published national nursing standards and state educational standards for school nurses. As evidenced by her nursing supervisor, supra at 5, Sliwowski’s search was not the “proper performance of [her] duties,” Forrester, 484 U.S. at 223, that is a key rationale for qualified immunity. Applying Walker and Smith, the Court concludes that B.H.’s Fourth Amendment right to be free from such an highly invasive search was clearly established at the time of Sliwowski’s search and that Sliwowski is not entitled to qualified immunity.

Officers responded to a burglary in progress call and conducted a protective sweep, which was valid and led to a search warrant. United States v. Williams, 2012 U.S. Dist. LEXIS 6350 (M.D. Pa. January 19, 2012) [Note: The court applies the wrong burden of proof to a warrantless search by citing search warrant cases and conflating the two, but, based on the facts, the outcome would be the same]:

“The proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights were violated.” United States v. Correa, 653 F.3d 187, 190 (3d Cir. 2011) (citing Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978); United States v. Stearn, 597 F.3d 540, 551 (3d Cir. 2010)). The applicable standard of proof is the preponderance of the evidence standard. United States v. Matlock, 415 U.S. 164, 178 n.14 (1974). Where the search in question was conducted pursuant to a warrant, the reviewing court is to uphold the warrant where there is a “substantial basis” for the finding of probable cause. United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001).

Officers came to defendant’s place to arrest him on a warrant for bank fraud, and they knew a computer had been used. In plain view was defendant’s laptop, and that gave the officers probable cause to seize it. After seizure, they applied for a search warrant to search it. The seizure was valid. United States v. Van Santvoord Camp, 2012 U.S. Dist. LEXIS 5878 (E.D. N.C. January 18, 2012):

“[S]eizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place.” Soldal v. Cook County, 506 U.S. 56, 68, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992). Law enforcement officers may seize evidence in plain view if “(1) the seizing officer is lawfully present at the place from which the evidence can be plainly viewed; (2) the seizing officer has a lawful right of access to the object itself; and (3) the object’s incriminating character is immediately apparent.” United States v. Williams, 592 F.3d 511, 521 (4th Cir. 2010) (internal quotations and citation omitted). After announcing the requirements of the plain view doctrine, the Supreme Court subsequently tailored the “immediately apparent” requirement: an officer need not “know” that an item is contraband or evidence of a crime, but rather must have probable cause to believe that the object is associated with the criminal activity. Texas v. Brown, 460 U.S. 730, 741-42, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).

Here, Agent Spears and Detective Boyce were lawfully in Defendant’s office pursuant to an arrest warrant. Defendant’s laptop was on Defendant’s desk in his office, in plain view of law enforcement. It was the only computer visible to law enforcement in Defendant’s office. Agent Spears, an investigating agent on Defendant’s case, knew that Defendant had used a computer as an instrumentality of the fraud that Defendant was being charged with and had been made aware by a reliable witness that Defendant utilized a laptop computer for business activities. Because Agent Spears had probable cause to believe that Defendant’s laptop was associated with Defendant’s criminal activity, the seizure of the laptop computer in Defendant’s office was pursuant to a valid exception to the warrant requirement.FN1

1 Defendant’s argument as to the validity of Agent Spears’ seizure of the laptop computer focuses solely on whether the seizure was a valid search incident to an arrest, assumedly because, in his affidavit in support of his application for a search warrant, Agent Spears refers to his seizure of the laptop as “incident to the arrest of [Defendant] on June 8, 2011.” Because the Court has found that a valid exception to the warrant requirement existed when Agent Spears seized the laptop, it is inapposite whether the Agent correctly identified his justification for seizing the laptop while arresting Defendant in his application for a search warrant.

SCOTUS holds in United States v. Jones, 2012 U.S. LEXIS 1063 (U.S. January 23, 2012), that the government’s use of GPS tracking there was a search under the Fourth Amendment. Opinion by Scalia and 9-0 with a concurrence. The Syllabus:

The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.

Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.

(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.

(b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.

(c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12.

615 F. 3d 544, affirmed.

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

This will be the subject of about 1500 news articles, blog entries, and press commentaries. I’ll likely only pick up the important ones by scholars. Mr. Kerr: You’re up.

What is significant to me is that the court still recognizes common law trespass, which I have argued in the past, has never been repudiated, and now is emphasized:

The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its under body) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding. Less than two years later the Court upheld defendants’ contention that the Government could not introduce against them conversations between other people obtained by warrantless placement of electronic surveillance devices in their homes. The opinion rejected the dissent’s contention that there was no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is invaded.” Alderman v. United States, 394 U. S. 165, 176 (1969). “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home ….” Id., at 180.

More recently, in Soldal v. Cook County, 506 U. S. 56 (1992), the Court unanimously rejected the argument that although a “seizure” had occurred “in a ‘technical’ sense” when a trailer home was forcibly removed, id., at 62, no Fourth Amendment violation occurred because law enforcement had not “invade[d] the [individuals’] privacy,” id., at 60. Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” 506 U. S., at 64.

. . .

We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U. S. 83, 88 (1998) (internal quotation marks omitted). Katz did not narrow the Fourth Amendment’s scope.

More about this later. I have my day job to go back to. Enjoy. The Fourth Amendment maybe is now off life support. Still not in good condition, but at least “not dead yet.”

The police department’s impound policy required a complete inventory, including closed containers. A second inventory, four days after the initial seizure, was not invalid. The fact that the officer had a mixed motive for the inventory doesn’t make it unlawful. Also, to be valid, a traffic stop need only be based on probable cause to believe that a traffic offense occurred, not belief that it actually happened. Once this stop happened, the defendant gave a false name and that justified more. United States v. Reyes, 2011 U.S. Dist. LEXIS 151967 (N.D. Ga. August 29, 2011), adopted 2012 U.S. Dist. LEXIS 6903 (N.D. Ga. January 19, 2012).

Where there was an altercation outside the house where defendant threatened to “get my gun,” tribal police had probable cause for issuance of a search warrant for the house for a gun. The omission that defendant was drunk at the time did not have any effect on the probable cause finding because one could also consider it “truth serum.” Besides, the good faith exception supports the warrant. United States v. Youngbear, 2011 U.S. Dist. LEXIS 151982 (N.D. Iowa December 1, 2011), adopted 2012 U.S. Dist. LEXIS 6704 (N.D. Iowa January 20, 2012).*

Ryburn v. Huff, 2012 U.S. LEXIS 1063 (U.S. January 23, 2012) (per curiam), reversing in part Huff v. City of Burbank, 632 F. 3d 539 (9th Cir. January 11, 2011):

Judge Rawlinson dissented. She explained that “the discrete incident that precipitated the entry in this case was Mrs. Huff’s response to the question regarding whether there were guns in the house.” Id., at 31. She faulted the majority for “recit[ing] a sanitized account of this event” that differed markedly from the District Court’s findings of fact, which the majority had conceded must be credited. Judge Rawlinson looked to “cases that specifically address the scenario where officer safety concerns prompted the entry” and concluded that, under the rationale articulated in those cases, “a police officer could have reasonably believed that he was justified in making a warrantless entry to ensure that no one inside the house had a gun after Mrs. Huff ran into the house without answering the question of whether anyone had a weapon.” Id., at 31, 33, 37.

Judge Rawlinson’s analysis of the qualified immunity issue was correct. No decision of this Court has found a Fourth Amendment violation on facts even roughly comparable to those present in this case. On the contrary, some of our opinions may be read as pointing in the opposition direction.

In Brigham City v. Stuart, 547 U. S. 398, 400 (2006), we held that officers may enter a residence without a warrant when they have “an objectively reasonable basis for believing that an occupant is … imminently threatened with [serious injury].” We explained that “‘[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’” Id., at 403 (quoting Mincey v. Arizona, 437 U. S. 385, 392 (1978)). In addition, in Georgia v. Randolph, 547 U. S. 103, 118 (2006), the Court stated that “it would be silly to suggest that the police would commit a tort by entering [a residence] … to determine whether violence … is about to (or soon will) occur.”

A reasonable police officer could read these decisions to mean that the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable basis for concluding that there is an imminent threat of violence. In this case, the District Court concluded that petitioners had such an objectively reasonable basis for reaching such a conclusion.

The Ninth Circuit’s panel was a little too ivory tower for SCOTUS. A hang-up when the police called inside did not have to be blown off as the people inside just exercising their right not to talk to the police because it could have meant more:

The panel majority—far removed from the scene and with the opportunity to dissect the elements of the situation—confidently concluded that the officers really had no reason to fear for their safety or that of anyone else. As the panel majority saw things, it was irrelevant that the Huffs did not respond when the officers knocked on the door and announced their presence and when they called the home phone because the Huffs had no legal obligation to respond to a knock on the door or to answer the phone. The majority attributed no significance to the fact that, when the officers finally reached Mrs. Huff on her cell phone, she abruptly hung up in the middle of their conversation. And, according to the majority, the officers should not have been concerned by Mrs. Huff’s reaction when they asked her if there were any guns in the house because Mrs. Huff “merely asserted her right to end her conversation with the officers and returned to her home.”

See School Law Blog.

But see Kentucky v. King, 131 S.Ct. 1849 (2011): “Others may appreciate the opportunity to make an informed decision about whether to answer the door to the police.”

Exigent circumstances in SCOTUS gets another lift, almost to the point that purported exigency is looking to outweigh search warrants. The court is nibbling around the “sanctity of the home” everywhere it can. See Silverman v. United States, 365 U.S. 505, 511 (1961) (“At [the Fourth Amendment’s] very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion.” Silverman was cited with approval the same day as Ryburn in United States v. Jones, 10–1259 (U.S. January 23, 2012).

WebProNews: Private Company Amassing Database of License Plate Data | No doubt the precogs have already seen this by Mike Tuttle:

Back in November, Josh Wolford opened quite a discussion about the rising prevalence of license plate readers in law enforcement. These scanning devices read license plates quickly and compile data to help track movements, reveal stolen vehicles, etc.

Some have expressed concern that such ubiquitous tracking of license plates is a violation of the Fourth Amendment to the U.S. Constitution, which protects citizens against unreasonable search and seizure and outlines the necessity of warrants in searches.

. . .

The great concern that some have now is that data from these scans is now being compiled. They fear that profiles can be built to construct a data “picture” of a person’s movements. Over time, that kind of tracking can yield quite a profile on a person in terms of personal habits and proclivities. And, if your cameras are concentrated thickly enough in an area (Washington, DC has one reader per square mile, so far) that picture gains definition quickly. With enough info, it is almost as unbroken a stream of info as a GPS tracking device would provide.

Objectively reasonable mistake of fact of law [in the Eighth Circuit] does not void the stop. Here it was on whether a neighboring state required two plates or one on all vehicles. United States v. Zaritz, 2011 U.S. Dist. LEXIS 152336 (E.D. Mo. October 26, 2011).*

Defendant’s computer died and he had the hard drive data copied at a shop and transferred to the new computer he just bought. The technician stumbled upon child pornography. This was clearly a private search. United States v. Meister, 2012 U.S. Dist. LEXIS 9439 (M.D. Fla. January 26, 2012).*

Odor of marijuana smelled during valid traffic stop was PC. United States v. Shaw, 2011 U.S. Dist. LEXIS 152334 (E.D. Mo. October 5, 2011).* [If you’re going to smoke dope while you’re driving, don’t commit any traffic violations. The cloud of smoke doesn’t help, either.]

Information about defendant’s possession of an unlawful silencer 4-5 months before the affidavit for search warrant was written was not stale. United States v. Vanderweele, 2011 U.S. Dist. LEXIS 152188 (N.D. Mich. December 7, 2011) adopted in part and remanded on other grounds 2012 U.S. Dist. LEXIS 8061 (W.D. Mich., January 24, 2012).*

Misdemeanors are subject to the fellow officer rule, but here defendant, accused of not registering as a sex offender, was confronted about that and couldn’t show he was. That was probable cause. United States v. Hanson, 2012 U.S. Dist. LEXIS 8795 (D. Alaska January 25, 2012).*

The good faith exception is considered before probable cause in the Fifth Circuit, and the affidavit here was more than bare bones, so the warrant was at least obtained with good faith reliance on the showing of probable cause. United States v. Blevins, 2011 U.S. Dist. LEXIS 152279 (W.D. La. November 7, 2011).*

Such was the case yesterday here. Ark. Democrat-Gazette: Attempted drug robbery leaves one man shot by David Harten.

The usual scenario is that the guy shot in the leg would never tell the police what earned his bullet wound. Likely he wouldn’t be back to attempt the same thing on his victim since he knows the victim is armed. Calling the police to report the aggravated robbery of the drug stash here would, and did, net the robbery victim charges of possession with intent to deliver and maybe “maintaining a drug premises” (something I still don’t get). Here it says possession of a weapon, which is his right in his home. It could have been simultaneous possession of guns and drugs (not a good thing). Does the Second Amendment guarantee a right to protect your stash if it’s in your home? I don’t think SCOTUS will even go that far.

While the description of the driver was somewhat off, the car was identified by a witness as a stolen car, and that was at least reasonable suspicion for a stop. After the car was stopped, defendant fled from it. He did nothing to assert a possessory interest in the car for the two weeks he had it until he was arrested, and that was too little, too late. United States v. Poole, 2011 U.S. Dist. LEXIS 152104 (E.D. Tex. December 30, 2011)*:

Poole apparently argues that he had a possessory interest in the vehicle because Gordon allegedly gave him the vehicle when they stopped dating two weeks prior to the traffic stop. He did not, however, assert his possessory interest to the law enforcement officers prior to the search of the vehicle. See United States v. Riazco, 91 F.3d 752, 754 (5th Cir. 1996). Instead, Poole chose to run when Deputy Hall attempted to arrest him. He never returned to the vehicle. Poole was located and arrested four days later. Even if the Court were to assume that Poole had a legal possessory interest in the vehicle, his decision to flee the scene and not return resulted in a voluntary abandonment of the vehicle. A defendant has no standing to complain about the search of property that he voluntarily abandons. United States v. Quiroz-Hernandez, 48 F.3d 858, 864 (5th Cir. 1995) (en banc). As set forth above, the initial stop and attempted arrest of Poole were proper, rendering Poole’s abandonment of the vehicle voluntary and not influenced by improper police conduct. Id.; see also United States v. Alvarez, 6 F.3d 287, 289-90 (5th Cir. 1993). Poole’s challenge to the search of the vehicle is without merit.

The government could use the All Writs Act to compel the defendant to provide the password to her computer so it could be searched under a search warrant. Providing the password here would not be incriminating. United States v. Fricosu, 10-cr-00509-REB-02 (D. Colo. January 23, 2012):

It is clear that the All Writs Act enables the court to issues orders to effectuate an existing search warrant. See United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977) (“This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.”); see also In re Application of United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, –- F.Supp.2d –-, 2011 WL 3424470 at *44 (D. Md. Aug. 3, 2011) (citing cases in which All Writs Act used to effectuate existing search or arrest warrant). Moreover, the government has offered Ms. Fricosu immunity, precluding it from using her act of producing the unencrypted contents of the laptop computer against her. (See Gov’t Motion App., Exh. 1.) Accordingly, the writ should issue.

See, e.g., CNet: Judge: Americans can be forced to decrypt their laptops by Declan McCullagh, Laptop Mag: Suspects Can Be Forced to Decrypt Hard Drives, Judge Rules, by Matt Liebowitz.

The motion to suppress was heard and denied, and defendant’s guilty plea without a reservation of a conditional plea waived that. United States v. Lebron, 2012 U.S. Dist. LEXIS 6633 (D. R.I. January 20, 2012).*

“Movant’s assertion that counsel was ineffective for failing to file pretrial motions in no way implicates the voluntariness of his plea of guilty. As a result, movant’s plea of guilty prevents consideration of the third ground for review in this proceeding.” Swift v. United States, 2011 U.S. Dist. LEXIS 152097 (E.D. Tex. December 29, 2011).*

Defendant’s § 2255 claim that the prosecution, police, and defense counsel conspired to delete defendant’s girlfriend’s consent from the DVD of the stop did not show prejudice because the valid stop showed probable cause of drug possession that led to the search. Thomas v. United States, 2012 U.S. Dist. LEXIS 7091 (M.D. Tenn. January 20, 2012).*

Four officers received a call from a school that a student threatened to “shoot up” the school. They got the report and went to the student’s home. All four entered the house after entrance was refused by the student’s parents. After 10-15 minutes inside where they did not search, the officers concluded the rumor at school was unfounded, and they left and went to the school and reported it. When they were sued, all were found to have qualified immunity. The Ninth Circuit reversed as to the first two and affirmed as to the second two following the first because they believed the first two had consent. As to the first two officers, there were neither exigent circumstances nor probable cause for the entry. Huff v. City of Burbank, 632 F. 3d 539 (9th Cir. January 11, 2011) (reversed in part per curium, Ryburn v. Huff, 11-208 (U.S. January 23, 2012) posted here):

These facts relied upon by the district court in its legal conclusions amount to mere speculation. They do not satisfy the heavy burden required for a finding of exigent circumstances. That the Huffs did not answer their door or telephone may be “unusual,” but it did not create exigent circumstances. Hopkins v. Bonvicino, 573 F.3d 752, 765 (9th Cir. 2009) (“[N]othing requires an individual to answer the door in response to a police officer’s knocking.”). The district court was incorrect in finding that Maria Huff’s failure to inquire about the reason for the officers’ visit, or her reluctance to speak with the officers and answer questions, were exigent circumstances. “[T]o the extent that the officers reasonably perceived [Maria] to be antagonistic, they were still not at liberty to enter [her home] under these circumstances.” LaLonde, 204 F.3d at 957 n.16. Nothing in the district court’s findings of fact states that Maria did not inquire about the reason for the officers’ visit or express concern that they were investigating her son. Nothing in the district court’s findings of fact indicates that Maria was not free to leave and return to her home, or that any of the officers had indicated that she was either required to answer their questions or restricted from returning to the inside of her house. Additionally, Maria did answer her cell phone when Ryburn called, spoke to him on the telephone, and went outside with her son Vincent upon learning they were present at her residence. She was under no obligation to invite the officers into her home. Indeed, our Constitution protects her decision to refuse the police entry into her home when they did not possess a warrant. See Silverman v. United States, 365 U.S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”).

Further, “the officers’ assertion of a potential threat to their safety must be viewed in the context of the underlying offense.” LaLonde, 204 F.3d at 957 n.16. Here, there was no underlying offense; the officers were investigating rumors of threats. …

The concurring judge would have found exigent circumstances for the first two officers based on a mere fear of a gun.

One would wonder how Saturday’s events in Tucson would have borne on this decision. But, opinions waiting release go through processing, so it would have undoubtedly been completed days earlier.

Plaintiff was recording an officer on a “personal electronic device,” and the officer and another took him down. “Solesbee charged plaintiff with unlawful intercepting of communication and resisting arrest. Plaintiff was handcuffed and placed in a police cruiser. While standing at the police cruiser, Solesbee viewed the contents of plaintiff’s camera without getting a warrant.” Viewing the video without a warrant violated the Fourth Amendment as a matter of law because of lack of exigency, and the plaintiff’s § 1983 claim depends on the facts of the arrest, which is disputed for summary judgment purposes. If it was valid, the officer gets qualified immunity; if not, the officer gets judgment against him–cell phones should not be subject to search incident, but the law is not clear. Schlossberg v. Solesbee, 2012 U.S. Dist. LEXIS 5492 (D. Ore. January 18, 2012):

I find the reasoning in Smith [State v. Smith, 920 N.E. 2d 949 (Ohio 2009)] and Park [United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2007)] persuasive. Courts which have likened electronic devices such as cell phones to closed containers fail to consider both the Supreme Court’s definition of “container” and the large volume of information capable of being stored on an electronic device. In New York v. Belton, the Supreme Court stated that “container” means “any object capable of holding another object.” Belton, 453 U.S. 454, 460 (1981). Consideration of an electronic device as a “container” is problematic. Electronic devices do not store physical objects which are in plain view once the containers are opened. Moreover, the storage capability of an electronic device is not limited by physical size as a container is. In order to carry the same amount of personal information contained in many of today’s electronic devices in a container, a citizen would have to travel with one or more large suitcases, if not file cabinets.

Cases following the reasoning set forth in Finley and other cases allowing warrantless searches of electronic devices incident to arrest set forth a new rule: any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer. See e.g., Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 27 (2008); Jana L. Knott, Note, Is There an App for That? Reexamining the Doctrine of Search Incident to Lawful Arrest in the Context of Cell Phones, 35 Okla. City U.L. Rev. 445, 445-47 (2010). Newhard v. Borders illustrates this issue. Newhard, 649 F.Supp.2d 440, 444 (W.D. Va 2009). In that case, Nathan Newhard was arrested for driving while intoxicated. Newhard, 649 F.Supp at 447-49. In the course of a routine search incident to arrest, the arresting officer retrieved Newhard’s cell phone from Newhard’s pocket, conducted a warrantless search of the photos contents and viewed multiple photos of Newhard and his girlfriend nude and in “sexually compromising positions.” Id. The officer showed Newhard’s private images (which were wholly unrelated to his drunk driving arrest) to another officer. Id. Subsequently, at the stationhouse, several more officers and stationhouse employees viewed the photos on the seized phone, notifying others that the photos were available for viewing enjoyment. Id.

[Cops just hate to be videotaped, and they will arrest people doing it, even though it clearly is not a crime.]

Defendant was connected to a 2003 rape by his DNA from a conviction in 2007, but police could not find the victim until 2010. The taking of the DNA in 2007 was reasonable. State v. Bolton, 2012 Ohio 169, 2012 Ohio App. LEXIS 122 (8th Dist. January 19, 2012).*

A search of defendant’s backpack on his arrest depended on the legality of his stop, which the trial court failed to find after having been asked by defense counsel. Remanded for findings on consent for the stop, although defendant was held by the arm when stopped. State v. Hines, 2012 Ohio 207, 2012 Ohio App. LEXIS 164 (2d Dist. January 20, 2012):*

[*P16] The trial court cannot be faulted for having followed the existing jurisprudence of this appellate district. Nevertheless, in view of our recent decision in State v. Gardner, supra, the trial court erred when it denied the motion to suppress based solely upon the fact that a warrant for Hines’s arrest was outstanding at the time of the search and seizure. The trial court never reached the factually contested issue of the voluntariness of the stop, or the issue of whether the officers had a sufficient suspicion of the existence of a weapon to have justified their having opened and searched Hines’s backpack, which was also the subject of conflicting testimony. Therefore, the judgment of the trial court must be reversed, and this cause must be remanded for reconsideration of the suppression motion in light of State v. Gardner. The trial court need not hold another hearing on the suppression motion, although it may do so if the court would find another hearing helpful.

Defendant could not suppress seizure of his telephone records from the telephone company under Smith v. Maryland. State v. Neely, 2012 Ohio 212, 2012 Ohio App. LEXIS 165 (2d Dist. January 20, 2012).*