Daniel J. Solove, Fourth Amendment Pragmatism, 51 Boston College Law Review 1511 (2010). Abstract:

This Essay argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the U.S. Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) the Coverage Question—does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) the Procedure Question—how should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: the Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.

USMJ can’t wait for Jones and rules that GPS requires no warrant, even though it was in place for six months (n. 10). United States v. Robinson, No. 4:11 CR 361 AGF/DDN (E.D. Mo. December 28, 2011)*:

Here, installation of the GPS tracker device onto defendant Robinson’s Cavalier was not a “search” because defendant Robinson did not have a reasonable expectation of privacy in the exterior of his Cavalier. Agents installed the GPS tracker device onto defendant’s Cavalier based on a reasonable suspicion that he was being illegally paid as a “ghost” employee on the payroll of the St. Louis City Treasurer’s Office. Installation of the GPS tracker device was non-invasive; a magnetic component of the GPS tracker device allowed it to be affixed to the exterior of the Cavalier without the use of screws and without causing any damage to the exterior of the Cavalier. The GPS tracker device was installed when the Cavalier was on a public street near defendant’s residence. See Marquez, 610 F.3d at 610. Installation of the GPS tracker device revealed no information to the agents other than the public location of the vehicle. See Karo, 468 U.S. at 712. Under these circumstances, installation of the GPS tracker device was not a search within the meaning of the Fourth Amendment.

H/T Wired.com.

Photographing a stolen stove in defendant’s place was not an unlawful search under Arizona v. Hicks. State v. Haymond, 203 N.C. App. 151, 691 S.E.2d 108 (2010).*

Defendant’s testimony at the suppression hearing over his knock-and-talk was “he said-he said,” and it was not credible because of inconsistencies at the hearing. He did not say consent was coerced, he said he never consented, and the court found he did. United States v. Zambrano, 2010 U.S. Dist. LEXIS 33668 (W.D. Mo. March 11, 2010).*

Trash pulls at defendant’s property involved abandoned property, and the court disagrees that the Eighth Circuit’s trash search law was wrongly decided. United States v. Earl, 2010 U.S. Dist. LEXIS 33769 (D. Minn. March 3, 2010).*

The Court of Federal Claims has no jurisdiction over wrongful incarceration claims. Tasby v. United States, 91 Fed. Cl. 344 (2010).*

The USMJ who issues a search warrant is not obligated to recuse from deciding anything else. The target’s motion here only complains about the rest of the process, and the motion is essentially frivolous. In re Hoover’s Residence, 2010 U.S. Dist. LEXIS 143626 (N.D. W.Va. October 28, 2010).*

Even if defense counsel had filed a motion to suppress ammunition as a result of an illegal search, defendant would have still been convicted of being a felon in possession of a firearm, and it had no effect on the outcome. United States v. Rendon-Martinez, 437 Fed. Appx. 685 (10th Cir. 2011).*

Under the four corners of the affidavit, there was PC for issuance of the search warrant. State v. Long, 2011 Ohio 4293, 2011 Ohio App. LEXIS 3552 (2d Dist. August 26, 2011).*

A mixed affidavit that includes untainted information and information from a tainted search that occurred prior to the search warrant issuing is subject to redaction. If probable cause remains, the search warrant is still valid. State v. Smith, 2011 Tenn. Crim. App. LEXIS 952 (December 27, 2011):

Regardless, just like federal courts in the wake of the Murray [v. United States, 487 U.S. 533 (1988)] decision, following [State v.] Clark[, 844 S.W.2d 597 (Tenn. 1992)] it has remained the practice of this court to analyze the reliance issue that was so crucial to the Supreme Court in Murray by permitting trial courts to redact those search warrant affidavits partially tainted by illegal material of any and all references to the same and then to re-scrutinize the redacted affidavit in order to determine whether or not probable cause remains nonetheless. See, e.g., State v. Vanderford, 980 S.W.2d 390, 399-400 (Tenn. Crim. App. 1997); State v. Bowling, 867 S.W.2d 338, 342-43 (Tenn. Crim. App. 1993). Indeed, in State v. Stephen J. Udzinski and Donna Stokes a/k/a Donna Story, No. 01C01-9610-CC-00431, 1998 Tenn. Crim. App. LEXIS 161, 1998 WL 44922 (Tenn. Crim. App. at Nashville, Feb. 5, 1998), we were confronted with an argument virtually identical to the one made in this case — that Murray and Clark “require exclusion of the evidence as a blanket remedy where an affidavit in support of a search warrant application improperly informs the magistrate of the results of an illegal search” because the effect “the tainted information [could] have on the magistrate’s ability to perform his functions” is “immeasurable.” 1998 Tenn. Crim. App. LEXIS 161, [WL] at *23. We roundly rejected that argument and also rejected the notion that Murray required a subjective inquiry into what information the magistrate may have relied upon in issuing his or her decision. Instead, we opted to follow the well-accepted practice of redacting any affidavit containing both legally and illegally gathered evidence, excising all tainted material, and scrutinizing whatever remains to confirm the continued presence of probable cause. 1998 Tenn. Crim. App. LEXIS 161, [WL] at *30.

Officers finally arrested defendant for violating the “no alcohol” provision of his parole because they could smell it on his breath. He got them to leave the car parked where it was–in the driveway of a friend. Nevertheless, the car was mobile enough for the automobile exception to apply because somebody else wanted access to it, ostensibly to drive off. State v. Wiggins, 245 Ore. App. 119, 260 P.3d 826 (2011), on rehearing State v. Wiggins, 2011 Ore. App. LEXIS 1798 (December 29, 2011) (reaching same result):

Here, there is no dispute that the police had probable cause that defendant’s car contained evidence of a crime—a gun—at the time of the search. The only remaining question, then, is whether defendant’s vehicle was “mobile” at the time the officers first encountered it. Compare State v. Coleman, 167 Ore. App. 86, 94, 2 P3d 399 (2000) (“The inquiry is centered on the circumstances surrounding the moment when the police first notice or focus their attention on an automobile.” (Emphasis added.)), with Meharry, 342 Ore. at 178 (“[A] vehicle is mobile for the purposes of the automobile exception because it was moving when the officer stopped it and nothing demonstrated that the vehicle would not be mobile once the officer relinquished control over it.” (Emphasis added.)). We conclude that defendant’s car was mobile, whether we define the initial point of the encounter as the moment when Brewster first observed defendant’s car in the parking lot of the convenience store or the moment when Brewster subsequently stopped defendant’s moving vehicle. In either case, the car was occupied and operable, and nothing subsequent to the stop rendered the car incapable of mobility.

We reject defendant’s argument that the vehicle was stripped of its mobility because the officers broke contact with it. …

The officers had cause for the stop when the CI gave the sign that a drug deal had gone down, and the vehicle involved was leaving the scene. State v. Williams, 2011 Ohio 4126, 2011 Ohio App. LEXIS 3438 (8th Dist. August 18, 2011).*

Remember my practice pointer about questioning the officer about what he would do if the person stopped walked away in determining whether the person was free to go? Imperfect, sure, but it often leads to the right answer. In a long fought case in the Western District of Arkansas, a USMJ awarded $1 in damages for excessive in unreasonably Tasering a person who walked away from a traffic stop. Man awarded $1 in Barling Taser case, Arkansas Democrat-Gazette (paywall):

The lawsuit alleged that Barbor fired a Taser at him when he tried to walk away from a traffic stop where his girlfriend had been arrested, and when he refused to let police search him for weapons.

That’s a real deterrent to excessive force cases. The appeal was Kirby v. Roth, 10-3697 (8th Cir. May 2, 2011), where Kirby was pro se and the district court failed to award damages after the first trial. This was on remand for damages.

Arpaio case: Latinos allowed to join class-action suit by JJ Hensley:

A federal judge issued a ruling Friday that will curtail the Maricopa County Sheriff’s Office’s ability to target illegal immigrants and gives thousands of Hispanics standing in a civil lawsuit that seeks to fundamentally alter Sheriff Joe Arpaio’s immigration-enforcement efforts.

Judge Murray Snow’s ruling created a class action, giving every Latino stopped, questioned or detained by the Sheriff’s Office since January 2007 standing in the 4-year-old civil-rights lawsuit.

The suit does not request monetary awards but seeks to change the way Arpaio’s deputies enforce immigration laws.

The judge’s ruling also bars all sheriff’s officers from arresting any person “only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States.”

Such knowledge or belief, Snow ruled, does not amount to cause for arrest.

ACLU press release here:

PHOENIX – A federal district court has put a halt to the systematic practice by the Maricopa County Sheriff’s Office of stopping and arresting Latinos based only on suspicion of unlawful presence in the United States and without any evidence of criminal activity, ruling that such detentions violate constitutional guarantees against unreasonable search and seizure.

U.S. District Court Judge Murray Snow also ruled on Dec. 23 that the lawsuit against the sheriff’s office, run by Sheriff Joe Arpaio, should proceed to trial on the separate claim of unconstitutional racial profiling and noted that the plaintiffs have already made a strong showing of intentional race discrimination.

The court also ordered that the case should proceed as a class action. As a result, all Latino drivers and passengers who may be stopped, searched or detained unconstitutionally will have a remedy under today’s order.

. . .

At issue are so-called crime saturation patrols and traffic stops done without evidence of criminal activity, which the plaintiffs charge are motivated by racial bias, and result in racially discriminatory treatment. The ruling comes in a 2008 lawsuit filed on behalf of five individuals and the Somos America immigrants’ rights coalition challenging racial profiling by the sheriff’s office.

Ortega-Melendres v. Arpaio, 2011 U.S. Dist. LEXIS 148223 (D. Ariz. December 23, 2011).

Five USMJs in Pennsylvania could issue search warrants for email accounts in other states. A search warrant for a specific email address was not a general warrant. The notice requirement on an email account goes to the email provider, not the person with that address. As to a search of property clearly named in a search warrant, defendant’s argument about curtilage actually undermined the reasonable expectation of privacy in the property. But all that was irrelevant: The property was clearly described and there was probable cause. The search of defendant’s car was valid as an inventory since he’d been indicted and was on the lam hoping to elude the police and skip the country at 1 am. United States v. Bansal, 06-1370 (3d Cir. December 14, 2011).

Fourth, Bansal contends that evidence obtained from his email accounts should have been suppressed on ground that the agents executing the warrants failed to adhere to the “notice requirements” imposed by Rule 41 because the executing agents did not provide him with a copy of the warrants. Rule 41 requires that searching officers put searched persons on notice of any property seized: … The plain text of Rule 41 thus requires notice only “to the person from whom, or from whose premises, the property was taken.” Id. (emphasis added). Because Bansal does not deny that the warrant was provided to the internet service providers upon whom the search warrants were executed, we conclude that notice was properly made in this case. We will therefore affirm the District Court.

. . .

Bansal reargues on appeal that the garage was not within the curtilage and that the agents’ reliance upon an interested prosecutor’s telephone advice is not sufficient to establish a good faith defense. We will not reach the good faith inquiry because we conclude that the warrant authorized the search of the garage. First, the warrant was not limited only to a search of the home at 23 Garden Avenue. It authorized a search of the entire “premises,” which included the garage. Second, we are puzzled as to how Bansal’s case is advanced by his assertion that the garage was outside the curtilage of the home at 23 Garden Avenue. It is axiomatic that “[a] person’s curtilage is the area immediately adjacent to his home in which he has a legitimate expectation of privacy.” Estate of Smith v. Marasco, 430 F.3d 140, 156 n.14 (3d Cir. 2005) (citing United States v. Dunn, 480 U.S. 294, 300 (1987)). We are puzzled because Bansal’s contention that the garage was outside the curtilage actually decreases his legitimate expectation of privacy in the building, and presumably places it merely on the “premises” at 23 Garden Avenue, squarely within the terms of the search warrant. In sum, we conclude that if the garage was within the curtilage, as the District Court found, then for Fourth Amendment purposes it was part of the premises at 23 Garden Avenue (the search of which no party disputes was authorized); if it was instead beyond the curtilage, Bansal’s expectation of privacy was diminished to the point that no violation could have occurred.

And the court could not help but note the complexity of the briefs, and the government responding in kind:

We note at the outset that Bansal’s and Mullinix’s briefs raise approximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good measure), we reject any implication that we should pick up their torch and embark upon a similar adventure ourselves. We address only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reasoning.

Officer’s credibility did not support the asserted basis for his stop and its continuation. A reasonable person would not have felt free to leave. United States v. Dixon, 2011 U.S. Dist. LEXIS 147865 (N.D. Tex. December 23, 2011) (on motion to reconsider; original order from September 2010)*:

Because Ralson’s credibility, for the reasons herein stated, has been severely discredited, the court cannot accept his account of the events regarding the revolver and when he saw it. Harris did not see a revolver until it fell to the ground underneath the car. Because of the inconsistencies and irrational position taken by Ralson regarding the cylinder, the court does not believe that Ralson saw the gun while Dixon was seated in the car. The court is convinced that Ralson did not see it until sometime after he ordered Dixon to step out of the vehicle and a struggle ensued. Accordingly, there was no legal basis — reasonable suspicion, probable cause, or otherwise — for him to order Dixon to step out of the vehicle. Ordering Dixon out of the car was not justified by Terry. Nothing had been done by the officers to determine the reliability of the anonymous tip as to criminal activity on Dixon’s part or as to officer safety. Considering all the circumstances surrounding the encounter between Dixon and the officers, the court concludes that a reasonable person would not have believed that Dixon was free to leave once Ralson told her to step out of the vehicle.

The trial court credited the officer’s testimony that the defendant consented to a search of his person after the officer passed by and smelled marijuana from a group. State v. Garrett, 2011 Tenn. Crim. App. LEXIS 936 (December 20, 2011).*

Defendant moved to suppress a decade old possession of bullets and cocaine in the penalty phase of his death penalty trial. In this case, it was harmless beyond a reasonable doubt; no reasonable juror would have even considered it material in light of the other evidence of his history of violence in multiple gang killings defendant was charged with where two people were executed with a gun to the head. Essentially, the challenged evidence pales in comparison to the rest of the case. People v. McKinnon, 52 Cal. 4th 610, 259 P.3d 1186, 130 Cal. Rptr. 3d 590 (2011)*:

Aside from the 1988 “bullets and cocaine” incident, the prosecution’s aggravating evidence demonstrated defendant’s well-established history of using force and violence. These examples included a violent battery and threats of further violence against his own sister, and a robbery and battery he committed in his school cafeteria. Importantly, the cold-blooded, cruel, and senseless murders of Coder and Martin sealed defendant’s fate. He walked up to Coder, placed a gun against his head, and brazenly shot him. He similarly murdered Martin by shooting him in the head, in an act of revenge for the unexplained death of a fellow gang member, remote in time. There is no reasonable possibility that any erroneous admission of evidence that defendant once possessed bullets while engaged in selling cocaine would have affected the jury’s penalty decision.

Defendant led officers into his bedroom for his passport and ID and officers then saw fake IDs in plain view which was valid. United States v. Moran-Martinez, 2011 U.S. Dist. LEXIS 93730 (W.D. N.Y. May 20, 2011).*

The court order for historical cell site location information (CSLI) as opposed to real time CSLI was not valid for lack of a proper showing, but it was still admissible because there is no exclusionary rule in Florida for violation of the statute. Tracey v. State, 69 So. 3d 992 (Fla. 4th DCA 2011), reh’g denied 2011 Fla. App. LEXIS 16332 (Fla. Dist. Ct. App. 4th Dist., Oct. 14, 2011):

We need not decide in this case whether prospective CSLI is subject to a probable cause requirement, because the state failed to meet even the less stringent standard required by section 934.23(5)—the application failed to offer “specific and articulable facts” to show that CSLI was “relevant and material to an ongoing criminal investigation.” In fact, the application did not even seek a court order for CSLI, only a pen register and a trap and trace. The application merely stated that a “Confidential Source (CS) indicated that [Tracey] obtains multiple kilograms of cocaine from Broward County for distribution on the West Coast of Florida” and that the “CS contacts” Tracey at a certain phone number. As Tracey notes in his brief, this vague language “does not explain the origin of the informant’s information; whether it was based on first-hand knowledge or was merely hearsay obtained from some other source; when [Tracey] was supposed to have last engaged in the alleged criminal conduct; when he was supposed to again engage in the alleged criminal conduct; or how the cell phone was involved in the transactions.” The statement in no way demonstrated how the confidential source was reliable. See generally State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001); Dozier v. State, 766 So. 2d 1105 (Fla. 2d DCA 2000).

To say that the state violated section 934.23 in obtaining real time CSLI does not mean that an exclusionary rule applies to prevent the state from using any “evidence derived” from the violation. § 934.06, Fla. Stat. (2009). Under federal law, suppression of evidence is not a remedy for violations of the ECPA. See United States v. Forest, 355 F.3d at 949; United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998); United States v. Navas, 640 F. Supp. 2d 256, 262-63 (S.D.N.Y. 2009), reversed on other grounds, 597 F.3d 492 (2d Cir. 2010). “[T]he Stored Communications Act expressly rules out exclusion as a remedy; § 2708, entitled ‘Exclusivity of Remedies,’ states specifically that § 2707’s civil cause of action and § 2701(b)’s criminal penalties ‘are the only judicial remedies and sanctions for violations of’ the Stored Communications Act. 18 U.S.C. § 2708.” Smith, 155 F.3d at 1056 (emphasis in original).

Similarly, under Florida law, the exclusionary rule is not a remedy for violations of section 934.23. Section 934.28, Florida Statutes (2009) provides:

The remedies and sanctions described in ss. 934.21-934.27 are the only judicial remedies and sanctions for violation of those sections.

The criminal penalties of section 934.21 and the civil remedy provided in section 934.27 are the only remedies authorized for a violation of section 934.23. Application of the exclusionary rule is not an option authorized by the statute.

The defendant was stopped for not having a license plate, but, after the stop, the officer saw a valid temporary tag. The officer was entitled to approach the motorist to explain the mistake. On discovering the smell of alcohol, further inquiry was justified. State v. Morris, 2011 UT 40, 687 Utah Adv. Rep. 43, 259 P.3d 116 (2011):

[*P1] This appeal concerns the constitutionality of a police officer’s actions during a traffic stop. Specifically, we consider what an officer must do when he stops a driver based on an objectively reasonable belief that a traffic violation has occurred, but before approaching the driver the officer learns he was mistaken about the grounds for the stop. We hold that when an officer acting in good faith is reasonably mistaken about the grounds for a traffic stop, he may initiate contact with the driver to explain his mistake and to end the stop, but may not detain the driver any further. If during this brief encounter new reasonable suspicion of criminal activity arises, the officer may respond accordingly.

The officer saw multiple hand-to-hand transactions, and that justified the stop of the defendant for drug dealing. State v. Hankerson, 65 So. 3d 502, 36 Fla. L. Weekly S 182 (2011), Released for Publication June 30, 2011.

Defendant’s traffic stop was justified, and the officer saw a “tool-knife” (Swiss Army type) in his lap, and he was told to keep his hands visible, but he would not comply. This justified getting him out of the car for a patdown, which validly produced drugs. Cortes v. State,260 P.3d 184, 127 Nev. Adv. Rep. 44 (2011).*

In a 100+ page death penalty IAC opinion, the court concludes as to the 1990 search issue, it was not appealed, but, had it been, it would have been affirmed anyway because the parties agree that there was probable cause to search defendant’s car. The only issue was exigency, which isn’t really much of an issue anyway because: car on street = exigency. Bane v. State, 2011 Tenn. Crim. App. LEXIS 574 (July 21, 2011).*

Use of a subpoena to obtain defendant’s medical records did not violate the Fourth Amendment or Conn. Const. art. I, § 7, where a criminal proceeding had been commenced against defendant, the time frame of the records sought was reasonable and relevant in purpose and specific in directive in light of the charges and the anticipated defense, and defendant had an opportunity to challenge the subpoena prior to its issuance. State v. Legrand, 129 Conn. App. 239, 2011 Conn. App. LEXIS 322 (June 7, 2011).

A sawed-off shotgun seen during execution of a search warrant was thus in plain view with an immediately apparent incriminating nature. United States v. Carmack, 426 Fed. Appx. 378, 2011 FED App. 0389N (6th Cir. 2011) (unpublished).*

On appeal after denial of a motion to suppress, the trial evidence should also be considered in determining whether the motion was properly denied. State v. Suggs, 70 So. 3d 60 (La. App. 5th Cir. 2011).*

“In this case, Defendant made false statements to officers regarding his name, date of birth, and social security number after his arrest for possession of controlled substances. Therefore, even assuming arguendo that Defendant’s arrest was not supported by probable cause, Defendant’s false statements to the police would not have been excluded as “‘fruit of the poisonous tree.”’ Wong Sun, 371 U.S. at 488, 9 L. Ed. 2d at 455.” State v. Barron, 202 N.C. App. 686, 690 S.E.2d 22 (2010).*

An off duty officer working security at an apartment complex had the defendant come with him to the office to give him a no trespassing notice. He got the defendant’s DL and actually called to check on his status. There were no warrants but the DL had been revoked. He then arrested the defendant for driving on a revoked DL, and the defendant moved to suppress the arrest in his habitual driving offender trial. The arrest was valid. Jones v. Commonwealth, 2010 Va. LEXIS 28 (February 25, 2010).*

Defendant was standing under a “no trespassing” sign, and that got the officers’ attention. They approached and asked for ID which he provided, and there were no warrants on him. However, he was acting exceedingly nervous and wouldn’t keep his hands out of his pockets despite the officers telling him to. A pat frisk followed, and baggies of crack fell from his pockets when he pulled his hands out. The seizure was lawful. Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 922 N.E.2d 816 (2010), Review denied by Commonwealth v. Mathis, 457 Mass. 1102, 928 N.E.2d 949 (2010).*

The search of defendant’s vehicle was justified by the search incident doctrine and the automobile exception because the recording of defendant and the CI showed that there was likely a gun in the car. United States v. Bugh, 2011 U.S. Dist. LEXIS 50198 (D. Minn. April 25, 2011).*

Officers conducted a knock and talk and then procured a search warrant while there. Defendant contended outbuildings were searched before the warrant arrived. If that happened, there was probable cause without any taint. United States v. Johnson, 2011 U.S. Dist. LEXIS 50625 (M.D. Fla. May 3, 2011).*

Defendant was not told that if he didn’t consent, a drug dog would be used; the officer said he would then ask about using a drug dog. His consent was voluntary on the totality. United States v. $107,840.00 in United States Currency, 784 F. Supp. 2d 1109 (S.D. Iowa 2011).*

The trial court properly denied the motion to suppress without a hearing because it was apparent from the proof at the bench trial that the gun was seen in plain view in a car double parked that the police approached. People v Howard, 32 Misc. 3d 31, 928 N.Y.S.2d 156 (2d Dept. May 9, 2011).*

File sharing over a “closed” network has slightly more of an expectation of privacy, but it still is not reasonable. Others have access to one’s computer, and that means the others can let still others in. United States v. Sawyer, 786 F. Supp. 2d 1352 (N.D. Ohio 2011):

In the current case, however, where a person shares files over a “closed” network — in which only pre-approved friends have access — an expectation of privacy is somewhat more reasonable. Unlike in an open program, where any user can see and download the files, Defendant Sawyer’s files were only visible to his “friends.” [Doc. 23-1 at 1-3.] Nonetheless, despite the program affording some greater degree of privacy, the rationale of the decisions analyzing open file sharing programs is still persuasive here and the Court finds that Sawyer did not have an objectively reasonable expectation of privacy in the files that were shared over GigaTribe. United States v. Ladeau, 2010 U.S. Dist. LEXIS 34218, 2010 WL 1427523, at *1-5 (D. Mass. Apr. 7, 2010) (holding an individual using GigaTribe has no reasonable expectation of privacy in the information that they share). Once Defendant Sawyer granted his “friends” access to his files, he had no control over the manner in which his friends used that access. Id. The Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U.S. at 743-44; ….

Defendant was a passenger in a stolen car located by its GPS system. The officer seized her purse and searched a black bag inside. The search of the black bag was unreasonable. Her disclaimer of ownership of the bag within a bag was not an abandonment. State v. Bond, 2011 NMCA 36, 261 P.3d 599 (2011):

[*P13] Officer Karst did not testify that Defendant told him he could search her purse. The State argues that Defendant’s disclaimer of the ownership of the bag within her purse can be interpreted as providing consent to enter her purse to remove the item. However, Defendant’s statement was not a clear statement of consent. It could also reasonably be interpreted to have been only a statement intending to preclude ownership in the event that Officer Karst instituted a search. Given the presumption against the waiver of the constitutional right to be free from unreasonable searches and seizures, State v. Munoz, 2008 NMCA 90, ¶ 19, 144 N.M. 350, 187 P.3d 696, the State did not meet its burden below of demonstrating that Defendant provided the officer with consent to enter her purse.

ICE came to defendant’s house in a child pornography investigation after finding that an email from his address had sent child porn to another computer. They came in blue jeans with no visible weapons and conducted a knock-and-talk. They told defendant what they knew and asked for consent to search his computers. He agreed to a search and signed a consent form. The consent was valid. United States v. Olson, 2011 U.S. Dist. LEXIS 75866 (D. Minn. June 8, 2011).* [Since it is possible for others to hack into one’s wifi network, that is at least a defense, except when the defendant consents and the CP is found on his computer.]

Police came to defendant’s house about a gun having been fired. He invited them in to see the gun, and they saw guns in plain view while looking for the gun. The entry was voluntary, and the plain view was reasonable. State v. Austin, 310 Ga. App. 814, 714 S.E.2d 671 (2011).*

This Franks challenge fails because the officer was found credible on the omission, and, in any event, it is immaterial to the probable cause determination. United States v. Waters, 2011 U.S. Dist. LEXIS 75908 (E.D. Pa. July 14, 2011).*

The DUI roadblock in this case satisfied the state supreme court’s standards, and the fact only 1.6% of the persons stopped resulted in arrest is a reasonable effective rate like in Sitz. City of Overland Park v. Rhodes, 46 Kan. App. 2d 57, 257 P.3d 864 (2011)*:

“Numerous conditions and factors must be considered in determining whether a DUI roadblock meets the balancing test in favor of the [State]. Among the factors which should be considered are: (1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test. Not all of the factors need to be favorable to the State but all which are applicable to a given roadblock should be considered.”

Defendant’s wheel touching the yellow line three times was justification for a stop. Defendant was arrested and convicted for DUI. State v. Brewer, 2011 Tenn. Crim. App. LEXIS 511 (July 7, 2011).*