NYT: T.S.A. Defends Cupcake Confiscation:

The federal Transportation Security Administration is defending its decision to confiscate a frosted cupcake from a Massachusetts woman flying from Las Vegas. The agency said in a blog comment posted Monday that the cupcake had been packed in a jar filled with icing, considered a gel under a policy intended to secure travelers from terrorists seeking to evade detection by using explosives made of plastics, liquids or gels. The traveler, Rebecca Hains of Peabody, was barred from taking her cupcake onto a plane last month when a T.S.A. agent said icing in the jar exceeded amounts of gels allowed in carry-on luggage. The T.S.A. says travelers with such items might get added screening.

Obstruction by not getting out of the car, such as resisting arrest, was not an offense from which one would expect to find evidence in the defendant’s car, and it did not justify a search incident under Gant. Defendant was “tased” and held on the ground handcuffed when the search incident occurred. Explaining the two “prongs” of Gant is People v. Evans, 200 Cal. App. 4th 735, 133 Cal. Rptr. 3d 323 (2d Dist. 2011):

The court adopted a “new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains ‘evidence relevant to the crime of arrest.’ [Citation.]” (Davis, supra, 131 S.Ct. at p. 2425; Gant, supra, 129 S.Ct. at p. 1719.) Gant noted that the second prong of the test flowed not from Chimel, but from Justice Scalia‘s concurrence in Thornton v. United States (2004) 541 U.S. 615, 632, and was justified by “circumstances unique to the vehicle context.” (Gant, supra, at pp. 1714, 1719; see also People v. Osborne, supra, 175 Cal.App.4th at p. 1064.) Where neither justification is present, “a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” (Gant, supra, at pp. 1723-1724.)

Here, the searches did not fall within the first prong of the Gant test. When the initial search of the vehicle was completed, Evans had been tased and detained, and was lying face down on the ground outside the vehicle, with officers on top of him. Plainly, he did not have access to the car’s interior. The second search was conducted at the impound yard, while Gant was presumably in the hospital, or at least nowhere near the vehicle.

Nor was it reasonable for officers to believe evidence relevant to Evans‘s crime of arrest––interfering with a police investigation in violation of Penal Code section 148––might be found in his automobile. In Gant, the defendant was arrested for driving with a suspended license. (Gant, supra, 129 S.Ct. at p. 1714.) The high court found it unreasonable to believe that evidence of this crime might be found in his car. (Id. at p. 1719.) The court explained: “In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.” (Ibid.) By way of example, the court cited Atwater v. Lago Vista (2001) 532 U.S. 318, in which the petitioner was arrested for a misdemeanor seatbelt violation, and Knowles v. Iowa (1998) 525 U.S. 113, in which the petitioner was stopped for speeding. (Gant, supra, at p. 1719.) …

Accordingly, we agree with Chamberlain that while the “nature of the offense of arrest is clearly intended to have significance, and in some cases it may virtually preclude the existence of real or documentary evidence, … a broad rule automatically authorizing searches incident to arrest for all other offenses cannot be reconciled with the actual holding of Gant. … Some reasonable expectation beyond a mere possibility, whether arising solely from the nature of the crime or from the particular circumstances surrounding the arrest, is therefore clearly contemplated by the Court.” (Chamberlain, supra, 229 P.3d at p. 1057.) We conclude a reasonable belief to search for evidence of the offense of arrest exists when the nature of the offense, considered in conjunction with the particular facts of the case, gives rise to a degree of suspicion commensurate with that sufficient for limited intrusions such as investigatory stops. (Ibid.) Reasonable suspicion, not probable cause, is required. (Chamberlain, at p. 1057; U.S. v. Vinton, supra, 594 F.3d at p. 25; …) As a practical matter, for crimes such as driving under the influence, absent unusual circumstances the requisite reasonable belief may be readily inferable from the nature of the offense, with little or nothing more. In most cases, however, the facts known to the officer, considered with the nature of the offense, will be determinative.

Here, neither the nature of the offense nor any facts specific to the crime would have provided the officers with a reasonable belief that evidence related to the offense of arrest would be found in Evans‘s automobile. Evans’s offense of arrest was interfering with a police investigation in violation of Penal Code section 148, due to his refusal to exit the car. In pertinent part, Penal Code section 148, subdivision (a)(1) prohibits willfully resisting, delaying, or obstructing a peace officer in the discharge of his or her duties. … The officers could not have reasonably believed evidence of obstructing a peace officer could be found inside defendant’s vehicle. (Id. at p. 558; see also U.S. v. Chavez (E.D.Cal. 2009) 2009 U.S. Dist. Lexis 116924 [resisting arrest is akin to a traffic-related offense, and an officer could not reasonably expect to find evidence of the crime inside a car].) The same is true here. Impeding an officer’s investigation is unlikely to leave evidentiary traces, such as the fruits or instrumentalities of the crime, in a vehicle. The only conduct underlying the offense was Evans’s refusal to exit the car when Currie ordered him to do so. It is unreasonable to believe evidence of that conduct would remain in the vehicle after Evans was no longer inside.

An inventory of a locked glove compartment of a car in impound was not justified on this record. However, the court decides that a search incident of a locked glove compartment was possible under Belton in Maryland, despite the fact no case dealt with it before. Therefore, Davis made that search valid. Briscoe v. State, 422 Md. 384, 30 A.3d 870 (2011):

The problem with the State’s argument is that the record before us is devoid of evidence demonstrating that the vehicle’s locked glove compartment would have been inventoried according to departmental policy, once it was towed to the impound lot. Without such evidence in the record, we are unable to conclude that the handgun would have been discovered inevitably, in a later inventory search of the locked glove compartment. See United States v. Mendez, 315 F.3d 132, 137-38 (2d Cir. 2002) (explaining that for the inevitable discovery doctrine to apply to inventory searches, the government must prove: “(1) that the police had legitimate custody of the vehicle … so that an inventory search would have been justified; (2) that when the police in the police agency in question conducted the inventory searches, they did so pursuant to ‘established’ or ‘standardized’ procedures; and (3) that those inventory procedures would have ‘inevitably’ led to the ‘discovery’ of the challenged evidence” (citations omitted)).

In sum, the search of the locked glove compartment cannot be upheld either as a proper inventory search or as evidence that would have been “inevitably discovered” in a subsequent inventory search.

However, even though no case holds that a locked glove compartment was subject to a search incident, the court decides that the Davis good faith exception saves this search of the glove compartment:

The search of Petitioner’s vehicle was conducted on June 26, 2007. At that time, the search of the minivan incident to Petitioner’s arrest was governed by the then-prevailing Belton bright-line rule. See Gee, 291 Md. at 668, 435 A.2d at 1389-90; McCain, 194 Md. App. at 276, 4 A.3d at 66. Under Belton, a glove compartment is included in the Belton perimeter. See Belton, 453 U.S. at 461 n. 4. At the time of the search at issue, no reported decision of this Court or the Court of Special Appeals had addressed specifically whether a police officer conducting a Belton search could open a locked glove compartment.

Petitioner takes the position that, because, at the time of the search at issue, no reported decision in Maryland expressly authorized police to open a locked glove compartment as part of a Belton search, there did not exist at that time “binding appellate” Maryland authority upon which Officer Bormanshinov could have “reasonably relied” in searching the glove compartment. The State acknowledges that there was no then-existing reported Maryland decision specifically authorizing the search of a locked glove compartment. The State points out, though, that, “just prior to the suppression hearing in this case, the Court of Special Appeals [in Hamel, 179 Md. App. at 18, 943 A.2d at 696] made it clear that Belton permitted the search of a locked gloved compartment.” Petitioner replies that Hamel is of no benefit to the State, because it was filed two months after the search in question and thus could not serve as precedent upon which Officer Bormanshinov could objectively and in good faith rely. We are in general accord with the State that the Davis good-faith exception applies to the search at issue, although we take a slightly different tack in reaching that conclusion.

. . .

We therefore hold that, before Gant, binding appellate precedent in Maryland, namely Belton, dictated that searches incident to arrest of recent occupants of vehicles included searches of all containers, whether locked or unlocked, within the passenger areas of the vehicles. Officer Bormanshinov acted in objectively reasonable reliance on that authority when he searched the locked glove compartment. It follows then, that the good-faith rule of Davis applies, and the suppression court correctly denied the motion to suppress the handgun found there.

Arrest not required under automobile exception search. Here, stop was for OUI. Commonwealth v. Johnson, 461 Mass. 44, 958 N.E.2d 25 (2011):

Here, prior to the search of the defendant’s SUV, Officer Rose had probable cause to believe that the defendant had been committing an OUI violation, and that he could find evidence pertaining to such crime in the motor vehicle. Officers Rose and Kelly had observed the defendant driving his SUV through a red light and then down several streets before finally parking the vehicle on Auckland Street. When the officers approached the defendant after he had left the SUV, they immediately noticed that the defendant “reeked” of alcohol, was slurring his words, was unsteady on his feet, and was agitated. He also provided the officers with false information as to his identity. See Commonwealth v. Riggins, 366 Mass. 81, 87-88 (1974) (providing implausible or false information to police, along with other facts, supports finding of probable cause to conduct warrantless search of automobile). As the officers were standing outside the SUV conversing with the defendant, they saw a half-empty bottle of cognac in plain view on the dashboard of the SUV. There was ample probable cause to permit a search of the defendant’s motor vehicle under the automobile exception to the warrant requirement. The fact that the defendant was not arrested for OUI does not affect the legitimacy of the search. See Commonwealth v. Antobenedetto, supra at 54-55. “The police are not required to make an arrest every time they have probable cause to believe someone has committed a crime.” Commonwealth v. Celestino, 47 Mass. App. Ct. 916, 918 (1999). See Commonwealth v. Skea, 18 Mass. App. Ct. 685, 695 (1984) (probable cause to search not always congruent with probable cause to arrest).

Saying it was a close question, putting a key found in an abandoned car into a lock to see if defendant had access to the property was reasonable without a warrant. People v. Robinson, 200 Cal. App. 4th 552, 133 Cal. Rptr. 3d 307 (1st Dist. 2011):

On that issue, defendant contends that testing the key in the lock was a search that could only be performed pursuant to a warrant. It is a close question whether inserting and turning the key constituted a search. “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” (United States v. Jacobsen (1984) 466 U.S. 109, 113, fn. omitted.) The court in U.S. v. Concepcion (7th Cir. 1991) 942 F.2d 1170, 1172 (Concepcion), concluded that testing a key in an apartment door lock was a search, reasoning: “A keyhole contains information—information about who has access to the space beyond. As the [F]ourth [A]mendment protects private information rather than formal definitions of property, [citations], the lock is a potentially protected zone. And as the tumbler of a lock is not accessible to strangers …, the use of an instrument to examine its workings (that is, a key) looks a lot like a search. … [¶] Because the agents obtain information from the inside of the lock, which is both used frequently by the owner and not open to public view, it seems irresistible that inserting and turning the key is a ‘search’.” (See also Arizona v. Hicks (1987) 480 U.S. 321, 324-325 [officer’s act of turning over a turntable to read its serial number constituted a search]; Portillo-Reyes, supra, 529 F.2d at p. 848.)

On the other hand, other courts have concluded that defendants had no reasonable expectation of privacy in external, publicly-accessible locks and/or that insertions of keys into such locks were not searches. The court in U.S. v. Salgado (6th Cir. 2001) 250 F.3d 438, 456 (Salgado), held that “the mere insertion of a key into a lock, by an officer who lawfully possesses the key and is in a location where he has a right to be, to determine whether the key operates the lock, is not a search.” The court emphasized that the defendant’s apartment door was accessible to anyone passing through a hallway open to the public, and the function of the apartment door lock was to protect and keep private the contents of the apartment itself. (Id. at pp. 456-457; see also U.S. v. Hawkins (1st Cir. 1998) 139 F.3d 29, 33, fn. 1 [“insertion of a key into the lock of a storage compartment for the purpose of identifying ownership does not constitute a search”]; United States v. Lyons (1st Cir.1990) 898 F.2d 210, 212-213 (Lyons) [insertion of key into padlock of storage unit for purpose of identifying ownership did not infringe on any reasonable expectation of privacy]; United States v. DeBardeleben (6th Cir. 1984) 740 F.2d 440, 444 (DeBardeleben) [the defendant had no “reasonable expectation of privacy in the identity of his vehicle”]; Mathis v. State (Alaska 1989) 778 P.2d 1161, 1165 [“Insertion of the key did not constitute a search of the locker, but merely an identification of it as belonging to the [defendants].”]; People v. Carroll (1973) 12 Ill.App.3d 869 [299 N.E.2d 134, 139] [insertion and turning of key not a search].)

Ultimately, we need not determine whether testing the key in the lock was a search, because, even assuming it was a search, the search was not unreasonable. “As a general rule, the question of whether a particular practice is unreasonable, and thus violates the Fourth Amendment, ‘“is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”’ (Skinner v. Railway Labor Executives’ Assn. [(1989) 489 U.S. 602, 619], quoting from Delaware v. Prouse (1979) 440 U.S. 648, 654, and United States v. Martinez-Fuerte (1976) 428 U.S. 543.) ‘Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.’ (Bell v. Wolfish (1979) 441 U.S. 520, 559.)” (People v. King (2000) 82 Cal.App.4th 1363, 1371; see also Concepcion, supra, 942 F.2d at pp. 1172-1173.) Thus, “even if the challenged action triggers the protections of the Fourth Amendment, a ‘minimally intrusive’ action ‘may be reasonable in view of the government interests it serves.’” (U.S. v. $109,179 in U.S. Currency (9th Cir. 2000) 228 F.3d 1080, 1087, fn. omitted.)

. . .

The other critical consideration is the justification for the intrusion. In the present case, testing the key in the lock “served the discrete investigative purpose of confirming that” defendant had access to 321 Sanford. (Moses, supra, 540 F.3d at p. 272; see also Lyons, supra, 898 F.2d at p. 213 [“the insertion of the key into the padlock was merely a means of identifying a storage unit to which [the defendant] had access”]; DeBardeleben, supra, 740 F.2d at p. 443 [“There was therefore a legitimate reason to insert the keys … to see whether they fit in order to identify that automobile as belonging to [the] defendant for purposes of obtaining a search warrant.” (Fn. omitted.)].) Moreover, regardless of whether the police had probable cause to believe that there was evidence inside the residence without trying the key in the lock, the police certainly reasonably suspected the residence was connected to the crime under investigation. …

How can they not take Scalia more seriously? “A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987).

“Here, it is undisputed that the Defendant did not own the vehicle searched, was not near the vehicle while it was searched, and did not have keys to the vehicle. Therefore, the Defendant did not have a reasonable expectation of privacy in Daniel Rodriguez’s vehicle allowing him to challenge the constitutionality of the search.” United States v. Rodriguez, 2011 U.S. Dist. LEXIS 122966 (D. Minn. October 6, 2011), adopted 2011 U.S. Dist. LEXIS 123027 (D. Minn. October 24, 2011).*

Defendant’s consent on the side of the road was voluntary. It was not withdrawn during the lengthy search. [Fiction alert: People generally do not know that they can withdraw consent to a search after it starts. This is a meaningless factor.] United States v. Beltran-Marino, 2011 U.S. Dist. LEXIS 123552 (D. Neb. October 5, 2011).*

A city ordinance on housing inspections that requires the renter to attempt to get consent from the tenant does not violate the Fourth Amendment. There is no penalty for failure to do so. Rental Housing Owners Assn. of So. Alameda County, Inc. v. City of Hayward, 200 Cal. App. 4th 81, 133 Cal. Rptr. 3d 155 (1st Dist. 2011), published October 25, 2011.*

Defendant had no paperwork on him after a stop of his car, and he assented to a patdown. The officer felt two long hard objects in the pockets but couldn’t determine what they were. After defendant refused to explain, the officer removed them finding glass pipes with drug residue. Removal of the pipes was valid. United States v. Rochin, 662 F.3d 1272 (10th Cir. 2011):

And we don’t hesitate to hold that test satisfied here. A reasonable officer could have concluded that the long and hard objects detected in Mr. Rochin’s pockets might be used as instruments of assault, particularly given that an effort to ask Mr. Rochin about the identity of the objects had proved fruitless. To be sure, the pipes Mr. Rochin turned out to have aren’t conventionally considered weapons. But a reasonable officer isn’t credited with x-ray vision and can’t be faulted for having failed to divine the true identity of the objects. And neither is “the scope of a Terry frisk … limited to [traditional] weapons.” Holmes, 385 F.3d at 791. During a lawful pat down an officer may remove not just objects that seem to be guns, knives and the like, but also any other objects that he reasonably thinks “might be used as instruments of assault” against him or others who may be in the area. Sibron, 392 U.S. at 65. And two hard and long objects filling a suspect’s trouser pockets “fit that description well,” better than the “hard, square object” at issue in Holmes, 385 F.3d at 791, and better than many other objects courts have held officers may lawfully remove during Terry stops, see, e.g., United States v. Rahman, 189 F.3d 88, 120 (2d Cir. 1999) (envelope); United States ex rel. McNeil v. Rundle, 325 F. Supp. 672, 677 (E.D. Pa. 1971) (watch). None of this is to say we necessarily endorse (or reject) the conclusions reached about the objects at issue in these other cases. It is instead only to emphasize by comparison how much more (objectively reasonable) reason there was for an officer to worry about the objects in the case at hand.

There is no minimum number of trash pulls that are required to establish probable cause. Here, there were two, and the second produced marijuana residue. Probable cause did not require a third pull. United States v. Medrano, 2012 U.S. Dist. LEXIS 1545 (E.D. Tex. January 6, 2012):

Next, the Court turns to Defendant’s argument that the marijuana discovered during a single trash run was not enough to form probable cause. There is no magic number of “trash runs” to be conducted prior to the issuance of a search warrant. See U.S. v. Hopkins, 2000 WL 20986, 3 (N.D. Tex. 2000). Noting that there is no per se requirement that there be multiple searches of trash to establish probable cause, Judge Fitzwater of the Northern District of Texas noted:

In some cases the paucity of evidence found in one trash seizure may in fact require more than that single garbage pickup before a warrant may be issued. In the present case, however, the contents of the trash were themselves a treasure trove and, coupled with the other grounds set out in the affidavit, amply established probable cause.

Id. (finding there was a sufficient basis for the state judge to find probable cause to issue the search and arrest warrant based on totality of circumstances, even though only a single trash run was conducted).

Boston Globe: Laptop seizures at customs cause thorny legal dispute by Katie Johnston:

David House took his laptop to Mexico a little over a year ago, hoping to squeeze in some work between sightseeing, fishing, and laying on the beach. All went well, vacation- and work-wise, until the former MIT researcher landed in Chicago, where federal agents seized his laptop, kept it for nearly two months, and may have shared information on his hard drive with several government agencies.

They didn’t have a search warrant. They didn’t charge him with a crime. And there was nothing House could do about it.

An add on to an already particular list “and any other items of evidentiary value” does not make a search warrant general. United States v. Ballard, 2012 U.S. Dist. LEXIS 1334 (E.D. Pa. January 5, 2012)*:

The Supreme Court has addressed this very issue. In Andresen, the Court held that a general tail at the end of a list of enumerated items to be seized does not create an impermissible general warrant. 427 U.S. at 481. The warrant in Andresen contained a long list of items related to a fraudulent real estate scheme, followed by the phrase, “together with other fruits, instrumentalities and evidence of crimes at this [time] unknown.” Id. at 479. The Court observed that the catch-all phrase at the tail end of the list was “not a separate sentence” but rather appeared at the end of a list of specific items. Id. The Court concluded that reference to “crime” in the catch-all phrase was meant to be interpreted in the context of the preceding specified list, meaning that it limited the search to other evidence of the real estate scheme described in the warrant. Id. The Court held that the warrant was not unconstitutionally general. Id.

The Third Circuit has similarly found that a catch-all phrase following a list of specific items to be seized does not render a warrant impermissibly broad. In United States v. American Investors of Pittsburgh, Inc., the Court analyzed a warrant authorizing the search of categories of “specifically delineated records and seizure of other documents and items considered [] fruits, instrumentalities and/or evidence of criminal activity.” 879 F.2d 1087, 1093 (3d Cir. 1989). The Court held that “because the items to be seized were described with sufficient particularity, the general tail, which is not read in isolation, does not render the warrant invalid.” Id. at 1106.

Probable cause is but a fair probability, not by a preponderance of the evidence, nor even a prima facie showing. State v. Tuff, 2011 Ohio 6846, 2011 Ohio App. LEXIS 5672 (11th Dist. December 30, 2011):

In regard to the “probable cause” determination for a valid search warrant, the courts of this state have noted that “‘the task of the issuing (judge) is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, (***) there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” State v. Young, 12th Dist. No. CA2005-08074, 2006 Ohio 1784, at ¶19, quoting State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph one of the syllabus. To satisfy this standard, it is not necessary for the affidavit to show the existence of criminal activity by a preponderance of the evidence; in this respect, not even a prima facie showing is mandated to justify the issuance of the search warrant. State v. Montgomery (Aug. 29, 1997), 11th Dist. No. 95-P-0034, 1997 Ohio App. LEXIS 3880, at *3.

Controlled buys by a CI from defendant’s house was probable cause for issuing a search warrant. State v. Shearer, 2011 Ohio 6835, 2011 Ohio App. LEXIS 5661 (11th Dist. December 30, 2011).*

HuffPo: Dems Fire Back At GOP Proposals To Drug Test Jobless: ‘You Pee In The Cup’:

The past year has seen an unprecedented wave of Republican bills to drug test the poor and jobless. It also saw a smaller wave of Democratic bills that said in response, “No, you pee in the cup.”

One of the most recent retorts comes from Georgia, where last month Democratic state Rep. Scott Holcomb introduced a bill requiring members of the local legislature to prove they’re not Legislating Under the Influence. Holcomb told HuffPost he came up with the idea because he was struck by a bill from his Republican colleagues to drug test welfare applicants.

“I was really struck by how awful it was,” he said. “I wanted to bring some attention to it.”

Democrats in Florida, Ohio and Tennessee have done the same thing. Tennessee state representative G.A. Hardaway said his bill to test lawmakers was inspired by constituents annoyed with a Republican welfare-drug-testing bill. “They said to me, ‘how do we know y’all aren’t on drugs?'” Hardaway told local TV station WMC-TV. “I thought, well, you don’t.”

. . .

The drug testing action in the states eventually percolated to the U.S. Congress. In December Rep. Jack Kingston (R-Ga.) introduced a bill to require states to screen unemployment insurance claimants for drugs. A version of Kingston’s legislation was included in a broader bill that passed the U.S. House of Representatives but failed in the Senate.

Assistant Minority Leader Rep. James Clyburn (D-S.C.) called the Republican drug test scheme unfair and insulting. “I don’t see anyone in the Republican majority demanding drug testing for folks who receive oil and gas subsidies,” he said.

Having sat through numerous House Judiciary Committee meetings in Arkansas last winter, one would conclude that two-thirds are either stupid or stoned all the time. They have the attention span of a day care class of three year olds.

SCOTUS granted cert in Florida v. Jardines today limited to the first question:

Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause.

ScotusBlog is here with the petition and response.

My post on Jardines from April is here.

The warrant for defendant’s DNA was not unlawful. Defendant had no right to counsel before taking his DNA because it is not a critical stage. United States v. Lewis, 483 F.3d 871, 874 (8th Cir. 2007). United States v. Mathis, 2012 U.S. Dist. LEXIS 354 (W.D. Pa. January 3, 2012).*

Defendant’s belated challenge under Franks that his accomplice and companion was misidentified doesn’t even rise to the level of a Franks violation. A search of a common area bathroom on an apartment floor did not intrude in any reasonable expectation of privacy. United States v. Rucker, 2011 U.S. Dist. LEXIS 150540 (D. Minn. November 9, 2011).*

Defendant’s argument that the officer did not swear out a warrant for arrest and arrested on probable cause without it is not an indication that the officer found the tipster to be less credible. Acting that way was consistent with law and departmental policy, and there was probable cause in any event. United States v. Henderson, 2011 U.S. Dist. LEXIS 150558 (E.D. N.C. November 4, 2011).*

ABAJ.com: Prosecutors Seek Court Order For Suspect to Turn Over Computer Password by Rachel M. Zahorsky:

Federal prosecutors have asked a Denver court to order a bank-fraud suspect to hand over her computer password so that they may search her files for evidence against her.

The move is extremely rare, the Denver Post reports, as civil-liberties groups say U.S. District Judge Robert Blackburn’s decision could test the strength of rights against self-incrimination in an increasingly digital era. However, prosecutors counter that current data encryption methods could make it impossible for law enforcement officials to access key evidence on hard drives without a user’s password.

When officers saw the defendant duck inside when they showed up at his house, they had exigent circumstances. United States v. Shillingford, 2011 U.S. Dist. LEXIS 150154 (S.D. Fla. December 19, 2011)*:

Exigent circumstances also existed. Detective Penoyer testifies that she saw Defendant from the doorway, and that he ran into the kitchen. The Court does not credit Defendant’s attempts to refute this testimony based on the short distance to the kitchen. Defendant testifies that he heard someone at the door, looked around the kitchen wall, saw the officers–unknown to be officers, and ducked back into the kitchen to hide in the closet. Whether he was running into the kitchen or ducking back into the kitchen to hide, Defendant, after observing and being observed by law enforcement, moved quickly out of view. The reasonable conclusion by Detective Penoyer was that Defendant was fleeing, destroying evidence or getting a weapon. This suffices to create exigent circumstances. Blasco, 702 F.2d at 1325. As such, irrespective of the marijuana’s location, both the probable cause and exigent circumstances necessary to enter a house without a warrant were present.

Statement immediately after arrest was unMirandized and suppressed. United States v. Cotter, 2011 U.S. Dist. LEXIS 150248 (W.D. Mo. December 21, 2011)*:

The statement made by Cotter at the scene and after he had been arrested, however, is a different matter. After Cotter had been handcuffed and arrested, the officers asked Cotter why he had a gun and Cotter responded by saying that he was holding it for Matt, the owner of the Cadillac. Cotter was not apprised of his Miranda rights prior to this inquiry. Moreover, the Court concludes that this statement was the product of custodial interrogation.

Consent to search the person included defendant’s wallet. “I concur with Magistrate Judge O’Sullivan that the search of the billfold section of the wallet did not exceed the scope of consent because Mr. Labrada’s identification and concealed weapons permit are similar to the shape and size of credit cards. And once the officer was able to look at the credit cards in the possession of both Mr. Lopez and Mr. Labrada, he had probable cause to arrest Mr. Labrada.” United States v. Labrada, 2011 U.S. Dist. LEXIS 150183 (S.D. Fla. December 23, 2011).*

71 days was not stale in a child pornography case, particularly in light of cases that say that months or years is not stale. United States v. Barker, 2012 U.S. Dist. LEXIS 229 (D. Vt. January 3, 2012).*

Defendant did not show standing to challenge the search of the rental car he was in. The officer had cause for a stop, and then probable cause to arrest when he gave a false name. United States v. Fowler, 2012 U.S. Dist. LEXIS 255 (D. S.C. January 3, 2012).*

NJ.com: In futile car search for drugs, Pompton Lakes police inflict $12K worth of damage by James Queally/The Star-Ledger:

When Pompton Lakes police seized Darren Richardson’s car on a rainy September afternoon, they told him it was headed for an impound lot. When they returned it three weeks later, he says, the 2004 BMW belonged in a junk yard.

The instrument cluster and leather dashboard were gone. The caramel-colored seats were torn up. The gear shift was ripped out and stray wires hung limp everywhere. Geico, Richardson’s insurance company estimated the damage at $12,636.42 — more than he paid for the car — and declared the vehicle a “total loss.”

According to police reports, the damage to the black BMW 325i came in the aftermath of a traffic stop during which officers detected a “strong odor of raw marijuana” inside the vehicle. Searching for a cache of drugs, members of three different police agencies and a detective from a federal drug task force spent two days tearing the car apart, the reports said.

So what did police find after their $12,000 search?

Absolutely nothing.

Volokh Conspiracy: Originalism and Civil Damages for Fourth Amendment Violations by Orin Kerr:

Originalists are often opposed to the exclusionary rule, the rule that evidence obtained in violation of the Fourth Amendment cannot be used in court. The exclusionary rule was made up by 19th and 20th century judges, the argument runs. At common law, the remedies for violations of search and seizure law were civil damages against the officers, not exclusion of evidence. Because the Fourth Amendment is widely recognized to have adopted and endorsed those cases, such as Entick v. Carrington (1765), the exclusionary rule must be abolished. It simply is not part of the original Fourth Amendment remedies observed in cases like Entick.

I’m not entirely sure that’s correct, but let’s assume it is. Here’s my question: If you’re an originalist, does that mean that you think the Constitution guarantees the civil remedies that existed at common law for search and seizure violations? Put another way, can modern judges change the civil remedies that were available at common law for constitutional violations? Or is there a civil remedies scheme that must be available under an originalist understanding of the Fourth Amendment?

NPR: Outsmarting Your Spying Smartphone (January 4, 2012):

That shiny new smartphone you got for Christmas boasts cool features and games, but buried deep in the software are tools that collect personal information. What exactly is being collected, and how should you take caution? Host Michel Martin speaks with John Verdi, senior counsel for the Electronic Privacy Information Center.