While there were omissions for Franks purposes, defendant utterly failed to show that they were made to deceive the issuing magistrate. The defendant’s burden is higher with omissions rather than falsities. United States v. Speer, 419 Fed. Appx. 562, 2011 FED App. 0201N (6th Cir. 2011) (unpublished):

The term “false statement” also includes a material omission for purposes of Franks, but we have “repeatedly held that there is a higher bar for obtaining a Franks hearing on the basis of an allegedly material omission as opposed to an allegedly false affirmative statement.” United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008). “Allegations of material omission are held to a higher standard because of the ‘potential for endless rounds of Franks hearings’ due to potentially ‘endless conjecture about investigative leads, fragments of information, or other matter[s] that might, if included, have redounded to defendant’s benefit.’” Id. at 415-16 (citations omitted).

On de novo review, officers stopping defendant for the license plate not matching the vehicle did not have reasonable suspicion that defendant was also involved in drug activity to continue the detention. Previous drug sales does not make reasonable suspicion. State v. Diede, 795 N.W.2d 836 (Minn. 2011) (4-3).*

The police officer’s encountering defendant walking about a half mile from a one car accident where the car was left justified the defendant’s stop. Matters escalated until defendant was validly arrested for DWI. State v. Woodard, 341 S.W.3d 404 (Tex. Crim. 2011) (dissent), affg State v. Woodard, 314 S.W.3d 86 (Tex. App.—Fort Worth 2010).

Without appropriate findings, the court of appeals should have remanded to the trial court for more findings rather that deciding the case. State v. Elias, 2011 Tex. Crim. App. LEXIS 448 (April 6, 2011).*

The facts, which are detailed, support the trial court’s credibility determination that the defendant consented to a search of her home. United States v. McMillan, 421 Fed. Appx. 361 (5th Cir. 2011) (unpublished).*

While the officer who stopped customers coming from a bar violated the Fourth Amendment just for sobriety roving checkpoints, he was entitled to qualified immunity because the law was not clearly established. Kozel v. Duncan, 421 Fed. Appx. 843 (10th Cir. 2011) (unpublished)*:

We conclude that the district court erred in applying the closely-regulated industries exception to the warrant requirement. The entries into Wranglers were not “administrative inspections designed to enforce regulatory statutes.” New York v. Burger, 482 U.S. 691, 700 (1987). Rather, given the reports of underage drinking in Wranglers, officers entered in a traditional investigatory capacity for “gathering … criminal evidence” and enforcing the penal laws. Id.; see also id. at 712-13 (stating that “[a]dministrative statutes and penal laws may have the same ultimate purpose of remedying the social problem, but they have different subsidiary purposes and prescribe different methods of addressing the problem”). Consequently, because this case does not involve administrative inspections, “the well-established exception to the warrant requirement for administrative inspections of ‘closely regulated’ businesses,” id. at 712, does not apply. Cf. Ferguson v. City of Charleston, 532 U.S. 67, 83 n.21, 86 (2001) (holding that hospital’s administration of urine tests to detect cocaine use by pregnant women implicated the Fourth Amendment, and noting that the tests were not analogous to administrative inspections because they were “specifically designed to gather evidence of violations of penal laws”).

. . .

Thus, even though there was a Fourth Amendment violation in detaining Wranglers’ patrons for sobriety checks, because Fourth Amendment law did not clearly establish the illegality of that conduct, Sheriff Duncan is entitled to qualified immunity.

The officer stopped two men because they matched the description of robbers. Defendant’s refusal to remove his hand from his pocket and his “fumbling” in that pocket was sufficient to justify his investigative detention and protective frisk for weapons. Commonwealth v. Coleman, 2011 PA Super 84, 19 A.3d 1111 (2011).*

Defendant was subjected to a private search that ended up in the hands of the government. While the standard of review is not clear, even applying de novo review, the facts are clear that the private searcher was not a government agent at the time the evidence was collected. United States v. Aldridge, 642 F.3d 537 (7th Cir. 2011).*

The court of appeals improperly limited the state’s argument that an alternative theory, not presented to the trial court, but fully supported by the record, should have been decided. Nevertheless, there was probable cause for the search anyway. State v. Hankerson, 65 So. 3d 502, 36 Fla. L. Weekly S 182 (2011).*

Odor of marijuana justified the search of defendant’s car after arrest. State in the Interest of A.H., 65 So. 3d 679 (La. App. 4th Cir. 2011).*

Defendant was arrested for sexual assault after his victim, who knew him, identified him. She was cut up in the attack. When he was arrested, police noticed a speck of blood on his ear. Taking the blood from his ear for DNA testing was by search incident. People v. Valencia, 2011 Colo. App. LEXIS 494 (March 31, 2011).*

The trial judge rejected the experienced police officer’s conclusion that he knows a drug deal “when he sees it,” and one hand-to-hand exchange was not enough. The appellate court was not free to conclude as a matter of law that the trial judge erred. On a search incident issue that was heard pre-Gant, the case is remanded to develop the record. People v. Byrd, 408 Ill. App. 3d 71, 951 N.E.2d 194 (2011).*

Defendant failed to show anything to support his contention that his resident was searched before the search warrant arrived. An officer on standby outside could stand in the common area of a duplex because defendant had no reasonable expectation of privacy there. United States v. Rodriguez-Sanchez, 2011 U.S. Dist. LEXIS 33181 (E.D. Wis. March 4, 2011).*

A protective weapons search of clothing on the front seat of a car stopped for two failures to signal of a person that the police had good reason to know was a suspect in bank robberies, but lacked probable cause, was still reasonable. United States v. Rogers, 2011 U.S. Dist. LEXIS 29377 (D. Kan. March 22, 2011).*

“Moreover, the fact that Dawkins appeared to be attempting to flee gave the officers reasonable suspicion that he was armed and dangerous. The District Court found that the officers had a reasonable suspicion that Dawkins was armed and dangerous, particularly because he was in the company of a well known drug trafficker, who was known to carry weapons and to associate with individuals who carry weapons. In addition, B.L. had made threats against the police; specifically, against one of the arresting officers, Officer Sealock.” United States v. Dawkins, 419 Fed. Appx. 224 (3d Cir. 2011).* (unpublished)

Plaintiff’s civil case over the search of his property was filed just within the two year limitations. The search occurred more than a year earlier, but he did not learn about it until his arraignment in court on August 25, 2006. He sued just short of two years after that, and it was timely. The searches also involved alleged thefts of his property, and these claims were not barred by Heck v. Humphrey because they did not attack the conviction. Sanders v. Downs, 420 Fed. Appx. 175 (3d Cir. March 22, 2011).*

Cruise ship passenger’s cabin was subjected to a Customs search on arrival at Port Everglades, and apparently the crew of the cruise ship provided additional information to justify it. It is also apparent that CBP knew a lot about the defendant before the search. Reasonable suspicion was not required, but here they had it. United States v. Williams, 419 Fed. Appx. 902 (11th Cir. 2011) (unpublished)*:

Officer Bradley testified that Costa Rica is “a source country” for narcotics and child exploitation. Williams traveled to Costa Rica alone, using his middle name, and had previously taken flights and cruises to Costa Rica. Two of Williams’s prior flights to and from Costa Rica were shortly before he took cruises there, which Bradley had seen other cruise ship passengers do to arrange drug deals. Williams had a criminal history, and Bradley learned that when Williams traveled using his middle name, he was not stopped by Customs. Prior to searching Williams’s cabin, Bradley had also learned that Williams declined to have his room cleaned the day he came back onto the ship from Costa Rica. These circumstances demonstrate that Williams traveled to “a source country for narcotics and child exploitation” in a manner that drug traffickers had been known to use, he used the name which would allow him to pass Customs officers without being questioned about his criminal history, and he declined to have his room cleaned after returning from a drug source country. We find no error in the district court’s conclusion that these seemingly innocuous acts nevertheless constituted reasonable suspicion to an officer trained in investigating the travel patterns of cruise passengers.

In any event, 19 U.S.C. § 1581 permits Customs officers “at any time [to] go on board of any vessel or vehicle at any place in the United States or within the customs waters … and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board.” 19 U.S.C. § 1581(a). Although reasonable suspicion may be required for “highly intrusive searches of a person’s body such as a strip search or an x-ray examination,” we have held that the suspicionless search of a crew member’s cabin on a foreign cargo ship while it was docked on the Miami River was not a violation of the Fourth Amendment. United States v. Alfaro-Moncada, 607 F.3d 720, 729, 732 (11th Cir. 2010).

Just because defendant was 100′ away from the officer at the time of the search of the compartment of his truck, he was not positioned so he could not object to the search if he wanted to limit it or revoke consent. United States v. McWeeny, 454 F.3d 1030 (9th Cir. 2006), is distinguished. That defendant was handcuffed and made to stand where he could not see the search. “[That] court held that the proper inquiry was whether ‘the reasonable person would believe that he or she had no authority to limit or withdraw [the] consent.’” This was different. United States v. Jimenez-Valenia, 419 Fed. Appx. 816 (10th Cir. 2011) (unpublished)*:

We need not reach the persuasiveness of McWeeny‘s logic because, even in that case, the touchstone of the inquiry was whether the suspect was coerced. Id. Jimenez was not coerced. He was asked to stand one hundred feet away, but assured that he could call out to the officer at any time. He was not handcuffed until after the incriminating compartment was found. Indeed, Jimenez was on notice of the discovery of the compartment and had opportunity to withdraw consent to the search. And Withers did not exceed the scope of Jimenez’s consent. Therefore, the search of the vehicle did not violate the Fourth Amendment.

Officers were in plaintiff’s house because of a domestic disturbance call. Entry into plaintiff’s bathroom to seize him and potentially disarm him was justified by exigent circumstances. Trull v. Smolka, 411 Fed. Appx. 651 (4th Cir. 2011) (unpublished)*:

The officers were at the residence responding to a domestic situation, Trull refused to exit the bathroom to talk with them, and they were under the impression that there may have been a gun somewhere in the residence. The officers were justified in concluding that a person involved in a marital spat, who was refusing to speak with officers, could be a threat to them while they were in the home discussing the dispute with his wife. Under these circumstances, the officers were also correct in concluding Trull could be a threat to himself. Therefore, the entry into the bathroom was justified by the exigent circumstances.

An officer’s statement to the defendant “don’t do it” when the defendant made a fist and took a fighting stance did not convert a stop into an arrest. Besides, he fled after that. United States v. Russ, 772 F. Supp. 2d 880 (N.D. Ohio 2011)*:

It is undisputed that, after their initial communications, DUSM Boldin told Russ “don’t do it.” Despite Russ’s contentions to the contrary, the Court finds that, under the circumstances, this statement did not qualify as language “indicating that compliance with the officer’s request might be compelled.” See Mendenhall, 446 U.S. at 554. At that point in the encounter, DUSM Boldin had observed that Russ appeared startled, was acting nervous, had clenched his fist, and “basically took a fighting stance.” (Doc. 29 at 42:1-5.) Boldin testified that, based on the circumstances, he believed that Russ might assault him, so he told Russ “don’t do it.” The Court finds that this statement, standing alone, did not transform the encounter into a seizure. A reasonable person could interpret Boldin’s comment to mean “don’t take a swing at me.” Unlike a command or order, the phrase “don’t do it” is not the type of language that would have elevated the encounter into a seizure. Even if the statement “don’t do it” could somehow be characterized as a show of authority, Russ was not seized because he fled and thus did not submit to that authority. See Brendlin v. California, 551 U.S. 249, 262 (2007) (“[W]hat may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered.”).

PoliceOne.com: Patrolling the Waterways, Drug interdiction: The ‘search authority’ of maritime cops by Tom Burrell:

The other day I was surfing the web, looking for ideas for my next article when I came across a series of online chat groups which all dealt with the same topic — When can an officer stop and board my boat? Because I often find the opinions of online “legal authorities” amusing, I decided to take a moment to browse the comments.

At first I encountered the expected comments from those who had obviously been on the wrong end of a bad police contact — people complaining about their rights being trampled for no reason, often followed by claims that they would never let another officer check their equipment without a warrant. Next came the advice from well-meaning citizens who agreed that they did not like being “stopped for no reason” but felt that officers were just doing their job and suggested quiet compliance so the officers could finish quickly and be on their way. Finally, there were the “former law enforcement officers” who were quick to inform other readers that the boating officers had “more authority than street cops” and could board your boat whenever they wished.

Was I surprised? No, not really. Like I said earlier, I find these chat boards amusing and generally read them as a momentary escape — not because I expect to learn what a Supreme Court Justice has to say on the topic. But in this instance, I found myself thinking back to a recent case involving a stop made by one of my officers which led to an arrest for boating under the influence.

In a prosecution for overprescribing, the government showed that it was reasonable to seize voluminous medical records and a computer for later search off premises. United States v. Durante, 2011 U.S. Dist. LEXIS 147010 (D. N.J. December 19, 2011).* [Note: I don’t think any business would want the FBI or DEA on premises for weeks while they conduct a search of the records. It only makes sense to enable them to take the records and copy them as needed and return the originals when done. If the defendant has a problem with the government having the records or the computer, he has remedies under Rule 41 for unreasonableness and interference with the business, and the court can monitor it, or get a master or USMJ to.]

There was probable cause for issuance of the search warrant in this case, and the temporary seizure of the premises pending arrival of a search warrant was reasonable. People v Pinkney, 2011 NY Slip Op 9212, 2011 N.Y. App. Div. LEXIS 9034 (3d Dept. December 22, 2011).*

When the computer check revealed an order of protection on the motorist being detained, the officer was justified in being more concerned for his own safety. Thus, it was not improper for the officer to inquire into that, and it didn’t extend the stop any. United States v. Green, 2011 U.S. Dist. LEXIS 146916 (W.D. Va. December 21, 2011).*

While Trooper Johnson also inquired about topics other than the traffic infractions, such as Green’s travel plans and Green’s reference to his lawyer, these brief questions did not run afoul of the scope or duration component of Terry’s second prong. See Johnson, 555 U.S. at 333 (holding that a law enforcement officer’s “inquiries into matters unrelated to the justification for the traffic stop … do not convert the encounter into something other than a lawful seizure,” provided the questions “do not measurably extend the duration of the stop”).

At approximately 10:14 a.m., dispatch advised Trooper Johnson that Green had a protective order against him, which Green confirmed. Upon receiving this report, Trooper Johnson requested additional information regarding the protective order. As Trooper Johnson noted during the suppression hearing, the existence of a protective order raises officer safety concerns, since the order can be indicative of assaultive or threatening behavior. Because there is no indication that Trooper Johnson’s inquiry regarding the protective order measurably prolonged the stop, the court is persuaded that it did not alter the stop’s lawful character. See Soriano-Jarquin, 492 F.3d at 500 (emphasizing that “[i]t is well established that officers performing a lawful stop are ‘authorized to take such steps as [are] reasonably necessary to protect their personal safety’”) (quoting United States v. Hensley, 469 U.S. 221, 235 (1985)).

Erin Smith Dennis, A Mosaic Shield: Maynard, the Fourth Amendment, and Privacy Rights in the Digital Age, 33 Cardozo L. Rev 757 (2011). From the conclusion:

In Smith, the Court’s wholesale adoption of the third-party doctrine effectively stunted Fourth Amendment protections at the advent of the digital revolution. Maynard opens up a much-needed pathway for reinvigorating Fourth Amendment protections in an age of rapidly ad-vancing technology, where reliance on third-party intermediaries is no longer optional, but part and parcel of a normal productive existence. Effective balancing of the public’s “reasonable expectation of privacy” against law enforcement concerns cannot occur under a judicial doctrine which eviscerates that expectation by fiat. Instead, it necessitates a statutory scheme that allows room for judicial analysis and evolution of what a reasonable expectation of privacy is with regard to electronic communications.

The amount and tenor of information available to law enforcement via the Pen Register statute can easily be aggregated into a mosaic re-vealing intimate details about an individual, ad infinitum. If the Fourth Amendment is to continue to protect citizens against unreasonable searches and seizures, it must protect the information that we so value, be it physical or intangible.

The Maynard decision articulating a mosaic theory of privacy at the very least illustrates the mounting tension between Fourth Amendment privacy protections and rapidly advancing technology. More importantly, it signals a new chapter in the judiciary’s efforts to redraw and adapt the Fourth Amendment parameters for the digital age, thereby guaranteeing that its safeguards remain vital, responsive, and reliable in a rapidly changing technological landscape.

Volokh Conspiracy: If a Dog Sniff Around a Car is Not A Search, What About a Dog Sniff Around a Home? by Orin Kerr:

SCOTUSblog flags a pending cert petition on an interesting Fourth Amendment question: What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home? The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a “search” and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.

Jardines is posted here.

Officers using a snitch set up a sting operation to deliver meth to a lawyer. The snitch said the lawyer was smuggling drugs into prison on client visits. The lawyer’s office was raided and he was arrested but not prosecuted. The officers had qualified immunity because the officers at least had probable cause based on the totality. Garcia v. County of Merced, 09-17188 (9th Cir. May 5, 2011).*

Seeing a pistol grip sticking from defendant’s waistband was reasonable suspicion for a stop at gunpoint. His name was run, and two fugitive warrants came up. The stop was valid. State v. Dickerson, 65 So. 3d 172 (La. App. 5th Cir. 2011).*

Defendant was stopped walking in an apartment complex after a caller told the police he was a “trespasser.” The officer had his DL and kept talking to him, and fairly quickly determined that he was not a trespasser. The officer kept his DL and kept talking to him, and another officer went to his car and looked inside, and then the officer questioned him about the contents of the car and three apparent pill bottles. The stop became unreasonable after the DL should have been given back and wasn’t. State v. Curtis, 2011 Ohio 1277, 193 Ohio App. 3d 121 (2d Dist. 2011).

Officers were called to an apartment building about a woman dressed as a man selling drugs in the basement. They went to the basement area, and it was empty, and then the defendant came down the stairs, saw the officers, and then acted startled and suspicious. While the case is “close,” reasonable suspicion justified the patdown, and a ball of cocaine was found by plain feel. State v. Love, 2011 Ohio 1287, 2011 Ohio App. LEXIS 1119 (2d Dist. March 18, 2011).*

Defendant was encountered in public without a show of force (other than a uniform and in a police car), and its continuation was consensual, including the patdown. State v. Thomas, 2011 Ohio 1292, 2011 Ohio App. LEXIS 1122 (2d Dist. March 18, 2011).*

A Michigan v. Long protective weapons search is not barred by Arizona v. Gant. State v. Heard, 70 So. 3d 811 (La. App. 2d Cir. 2011).*

Unconditional plea waived all motions denied. United States v. Mendez-Santana, 645 F.3d 822, 2011 FED App. 0137P (6th Cir. 2011).*

Because defendant argued that his consent was the product of an illegal confession, reversal of the trial court’s suppression order on the confession also worked to reverse the suppression of evidence. State v. Powell, 242 Ore. App. 645, 256 P.3d 185 (2011).*

Defendant’s arrest for driving without a valid Massachusetts license was invalid because (1) he produced a valid New Brunswick driver’s license and the vehicle was licensed in NB, and (2) the officer had no probable cause under state law to support the conclusion defendant was a lawful “resident” of Massachusetts under the law even though he was regularly seen in the area. Commonwealth v. Chown, 459 Mass. 756, 948 N.E.2d 394 ( 2011), revg Commonwealth v. Chown, 76 Mass. App. Ct. 684, 925 N.E.2d 562 (2010).*

Plaintiff, a 63 year old arthritic woman visiting her son who was pushed to the ground and threatened to be shot in the front yard during a drug raid on the house, had her claim barred by qualified immunity. “[B]ased on the facts alleged, ‘would [it have been] clear to a reasonable officer that his conduct was unlawful in the situation he confronted’? [Saucier] at 202. [¶] The district court answered the first question in the negative, concluding that the facts alleged by Croom, even if proven to be true, did not establish a Fourth Amendment violation. Though we are sympathetic to Croom’s plight and frustration, after careful consideration, we must agree.” Croom v. Balkwill, 645 F.3d 1240 (11th Cir. 2011).* [During a drug raid, apparently it’s appropriate to threaten non-threatening grandmothers wearing only a bathing suit watering the plants (and obviously unarmed) with a handgun to the head.]

Officers had a search warrant based on probable cause, and they came to defendant’s house, finding him in the front yard, holding his child and standing next to his wife. He pulled out a gun and attempted to hand it to his wife, but it fell to the ground. The observation was valid because the warrant was issued with probable cause. [Not to mention this happened in the front yard and officers saw it as they approached.] United States v. Williams, 2011 U.S. Dist. LEXIS 72434 (M.D. La. July 5, 2011).*

Defendant was arrested at the threshold and need clothes. A protective sweep was appropriate before he was permitted to get any. United States v. Cooper, 2011 U.S. Dist. LEXIS 72585 (N.D. Ohio March 24, 2011).*

TSA officers noticed defendant and his traveling companion because of suspicious activities at the Delta counter at MSP airport, according to a behavioral specialist. By the time they got to security, officers were sure they would be subjected to secondary screening, and that led to intensive questioning and seizure of case in aid of local law enforcement who also got involved, reporting that defendant was allegedly involved in a drug deal the day before. United States v. Rosales, 2011 U.S. Dist. LEXIS 140949 (D. Minn. October 28, 2011):

Warrantless and suspicionless airport screening searches “are constitutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.’” United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). TSA is statutorily charged with developing and executing airport screening search procedures. See 49 U.S.C. § 44901(a). More generally, TSA is responsible for creating “regulations to protect passengers and property on an aircraft … against an act of criminal violence or aircraft piracy.” 49 U.S.C. § 44903(b). Under 49 C.F.R. § 1540.111(a), individuals may not carry a “weapon, explosive, or incendiary” onto an airplane. Title 49 of the United States Code, Section 44902(a) requires that TSA prohibit commercial airlines from transporting “a passenger who does not consent to a search … [thus] establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance.” 49 U.S.C. § 44902(a). Pursuant to its mandate, TSA has established a “prohibited items list” which is posted online and sets forth what items may not be carried aboard aircraft. 68 Fed. Reg. 7444, 49 C.F.R. § 1540.3. The prohibited items list includes a number of small items such as razors, matchbooks, blasting caps, flares, plastic explosives, and the like. See http://www.tsa.gov/travelers/airtravel/prohibited/permitted-prohibited-items.shtm#9 (last visited October 28, 2011).

Administrative searches are exempt from the warrant and probable cause requirements if they are reasonable. Because these searches remain subject to the Fourth Amendment, however, a particular search is “constitutionally reasonable [only where] it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [and where] it is confined in good faith to that purpose.’” Aukai, 497 F.3d at 962 (quoting Davis, 482 F.2d at 913).2 To determine the reasonableness of an administrative airport search, this Court must balance an individual’s right to be free of intrusion with “society’s interest in safe air travel.” United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005).

. . .

This Court concludes that the search procedures used in this case were neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons, explosives, or other prohibited items that might be carried on an airplane. After passing through a magnetometer, Rosales was directed to secondary screening under TSA rules because he was a traveling companion of Perez, who displayed a sufficient amount of suspicious behavior indicators to require a secondary inspection of him at the security checkpoint. TSA Officer Leonard testified that the secondary screening process begins once a person walks through the magnetometer and all their accessible property has been X-ray screened. If there are no specific target areas observed by the X-ray operator that the agents need to identify first, then “as behavior detection officers we collect all their accessible property, we ask for assistance from a checkpoint certified screening officer, another transportation security officer, to do a pat-down of their person to make sure that there is no artfully concealed items on them.”

TSA having seen cash, it was still legally in “plain view” even though it had been returned to defendant in the airport and was zipped up in his bag. United States v. Rosales, 2011 U.S. Dist. LEXIS 143264 (D. Minn. December 13, 2011):

As noted, the Court has already held that the TSA agent’s search of Rosales’s bag was lawful. Thus, the TSA agent was lawfully in a position to see the cash. As Rosales points out, though, the TSA agent did not seize the cash. Instead, the TSA agent returned Rosales’s property to him and let him go on his way. Rosales’s cash was later seized by airport police (not the TSA) only after Rosales voluntarily agreed to return to the screening area and speak with airport police officers (who had been told by the TSA that Rosales was carrying a large amount of cash, see Docket No. 329 at 4-5, 65-66, 68).

Nevertheless, the Court finds that the seizure was proper under the plain-view doctrine. The Supreme Court has upheld a search under analogous circumstances, explaining that “absent a substantial likelihood that the contents have been changed, there is no legitimate expectation of privacy in the contents of a container previously opened under lawful authority.” Illinois v. Andreas, 463 U.S. 765, 773, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983); see also United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 87-88 (2d Cir. 2002) (Sotomayor, J.) (holding that a police officer’s opening of a briefcase that had just been searched by airport security did not constitute an additional “search” within the meaning of the Fourth Amendment); United States v. $145,850 U.S. Currency, No. 10-71, 2010 U.S. Dist. LEXIS 77686, 2010 WL 3063814, at *6 n.2 (E.D. Va. July 30, 2010) (“That Arrington zipped up his suitcase and began to exit the airport is immaterial to whether the plain view justification for seizure continued to apply.”). In other words, after a container has been lawfully searched and its contents lawfully viewed in the course of that search, those contents are deemed to remain in plain view (even if they are put back in the container and carried off) up until the point that it becomes substantially likely that the contents of the container have changed. Cf. Andreas, 463 U.S. at 771-72 (“once a container has been found to a certainty to contain illicit drugs, the contraband becomes like objects physically within the plain view of the police, and the claim to privacy is lost” (footnote omitted)).

In this case, there is no substantial likelihood that the contents of Rosales’s bag changed between the time that the TSA agent allowed Rosales to leave the screening area and the time that airport police seized the cash. Although the record does not definitively establish the amount of time that passed between Rosales leaving and returning to the screening area, it appears to have been a matter of minutes; moreover, Rosales was nearby and apparently visible to TSA agents the entire time. See Docket No. 329 at 42, 48-49, 53-55; cf. Andreas, 463 U.S. at 767-68, 772-73 (holding that there was no substantial likelihood that the contents of a shipping container changed during the 30 to 45 minutes that it was in an apartment and out of the officers’ sight). In addition, given that Rosales was at the airport the entire time, it is reasonable to believe that he maintained his possessions in the bag in which he had packed them. Without any substantial likelihood that the contents of Rosales’s bag changed, therefore, the cash is treated as though it remained in plain view — as though Rosales had held it in an outstretched hand at all times, including while talking with airport police.