Defendant’s standard conditions of supervised release for his child pornography conviction require that any computer he have access to have software that permits monitoring by U.S. Probation. The condition is reasonable, and he is already subject to a search and seizure condition anyway. He is free to seek modification of the conditions in the future as technology changes. United States v. Quinzon, 634 F.3d 1266 (9th Cir. 2011).

Defendant did not show that his counsel was ineffective for not filing a motion to suppress that would have failed on the merits anyway. United States v. Williams, 2011 U.S. Dist. LEXIS 73799 (E.D. La. July 8, 2011).*

The “apparent authority” doctrine of consent does not offend the Connecticut Constitution. State v. Buie, 129 Conn. App. 777, 21 A.3d 550 (2011).*

A “shots fired” report brought officers to the scene, and they got a report of shots fired from a newer four door car. Defendant’s car was stopped, but it was not “newer” and had two doors. The stop was without reasonable suspicion. State v. Hill, 194 Ohio App. 3d 93, 2011 Ohio 2019, 954 N.E.2d 1252 (5th Dist. 2011).*

After a traffic stop, the defendant made a furtive movement under the seat. He later said that he was looking for this DL; however, he retrieved it from a different place, and that heightened the officer’s suspicion. Hardaway v. State, 309 Ga. App. 432, 710 S.E.2d 634 (2011).*

The officer was dispatched to a neighborhood dispute call and he encountered the defendant walking away. He called the defendant over to talk to him, and defendant had his hands in his pockets. The officer asked for permission to patdown and then to search, and the court credited the officer that it was consensual. Ware v. State, 309 Ga. App. 426, 710 S.E.2d 627 (2011).*

An officer was dispatched on a report of three men in a green Honda smoking dope. He drove up on them without lights and walked up to the window, seeing nobody smoking. One man got out of the car, and the officer could see a gun in plain view, and he then had reasonable suspicion. State v. Banks, 64 So. 3d 386 (La. App. 5th Cir. 2011).*

The video of defendant’s driving showed her weaving so much she was driving on the wrong side of the road, so the stop was valid. State v. Schoenthal, 2011 Tenn. Crim. App. LEXIS 294 (April 27, 2011).*

A “static 911” call, once officers got to the scene, was not exigency for an entry. One door of the house was unlocked, but it was in a rural area. It was also disheveled, but there was no indication there was anybody at home at all, let alone the bare possibility that somebody inside might be in need of aid. The burglar alarm cases from sister circuits are inapposite. United States v. Martinez, 643 F.3d 1292 (10th Cir. 2011):

The sanctity of the home is too important to be violated by the mere possibility that someone inside is in need of aid — such a “possibility” is ever-present. It is for this reason that exceptions to the Fourth Amendment’s warrant requirement are “subject only to a few specifically established and well-delineated exceptions.” Mincey, 437 U.S. at 390 (quoting Katz v. United States, 389 U.S. 347, 357 (1967)) (internal quotation marks omitted). The district court understood the law and properly applied it in this case.

Finally, the government claims the district court erred by relying “on its own experience rather than deferring to the officers’ experience.” Aplt. Br. at 37. The government’s argument is unpersuasive. The district court need not jettison all common sense when reviewing the evidence. It need only consider the evidence from the viewpoint of a “prudent, cautious, and trained officer[].” Najar, 451 F.3d at 719. We are satisfied the district court did so.

Because the officers lacked a reasonable basis for believing an individual inside Mr. Martinez’s home was in need of immediate aid or assistance, we agree with the district court’s determination that the warrantless search of Mr. Martinez’s home was a violation of the Fourth Amendment.

While it is “troubling” that this defendant was denied an opportunity to participate in the suppression hearing, there was no error in denying his motion to suppress on Franks grounds because there was an alternative ground to support the search. United States v. Gamory, 635 F.3d 480 (11th Cir. 2011).*

Defendant was illegally detained, but the search warrant issued later was not the product of the detention. It was base416 Fed. Appx. 467416 Fed. Appx. 467d on an independent source. United States v. Fitzgerald, 416 Fed. Appx. 238(4th Cir. 2011) (unpublished):

In plaintiff’s civil case against the search of his property, he made no showing that the magistrate issuing the warrant was not neutral and detached such that the warrant could not be relied on by the executing officers. Grimes v. Thomason, 416 Fed. Appx. 465 (5th Cir. 2011) (unpublished).*

While the district court did not use the phrase “collective knowledge,” the record supports that there was probable cause under the collective knowledge doctrine. This was reach under plain error. United States v. Hooker, 416 Fed. Appx. 467 (5th Cir. 2011) (unpublished).*

Defendant voluntarily checked himself into a hospital, and a police officer came to talk to him. He was not restrained there by the police. In the course of the conversation, he “reluctantly” agreed to let the officer look at his cell phone for missed calls, and he handed the phone over and watched the officer try to navigate through the phone. Being unfamiliar with the phone, the officer accidentally stumbled upon a text message defendant did not want him to read. This was a plain view and did not illegally exceed the extent of consent given. United States v. Dobbs, 2011 U.S. Dist. LEXIS 31171 (N.D. Ga. February 3, 2011):

While it is clear that a warrantless search conducted pursuant to consent must remain within the scope of the consent given, United States v. Street, 472 F.3d 1298, 1308-09 (11th Cir. 2006), nothing in the facts of this case suggest that Agent McCleod exceeded the scope of Dobbs’ consent. Agent McCleod testified that he navigated to the missed call display as directly as possible, that it was necessary for him to navigate through a display of text messages in order to get to the missed call display, and while navigating, he did not view the content of any of the text messages. Agent McCleod’s actions are analogous to those of an officer walking through exterior areas of a home in order to access an interior room in a residence that he has been granted consent to search. Any information Agent McCleod saw incidentally while conducting the search within the scope of consent is admissible because it was in plain view on his path as he navigated to the display of missed calls directly from the screen which Dobbs had on display when he handed the phone to the agents.

Defense counsel filed a motion to suppress the search in his case, but defendant pled guilty on the advice of counsel and expressed no qualms about it. His claim of “bad advice” regarding the guilty plea just doesn’t cut it. United States v. Thomas, 772 F. Supp. 2d 164 (D. D.C. 2011).*

Officers suspected defendant of a hydroponic grow operation, and they set up surveillance. The house was surrounded by a tall fence and an electronically operated gate. When defendant left the property and opened the gate, an officer’s slipping in before the gate closed was a violation of the Fourth Amendment. Fernandez v. State, 63 So. 3d 881 (Fla. App. 3d DCA 2011):

The state argues, however, that Sergeant Falcon was free to enter the premises when the gate opened. That argument is not persuasive because the momentary opening of the gate for the defendant to leave was not an open invitation to the public, or by extension to the police, to enter. Certainly, a policeman may enter the curtilage surrounding a home in the same way as a salesman or visitor could. Potts, 654 So. 2d at 599 (citing State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981)). But those are not the facts here. No salesman or visitor could have entered the enclosed curtilage during the momentary opening. The momentary opening of the gate for the express purpose of leaving did not alter the Dunn expectation-of-privacy factors. This was not an opening to invite the public into the area. Here, there was effectively a trespass onto the property.

This case is also distinguishable from the “knock and talk” cases. Here, as in United States v. Quintana, 594 F. Supp. 2d 1291 (M.D. Fla. 2009), this exception will not apply because Sergeant Falcon did not enter the property as a public person would have, through an opening created for that purpose. Nothing in this record would support a finding that the officers “approached the residence ‘just [as] any private citizen [could].’” Quintana, 594 F. Supp. 2d at 1302 (citing United States v. Taylor, 458 F. 3d 1201, 1204 (11th Cir. 2006)). …

Search warrant for seizure of defendant’s computer and search for child pornography images was not overbroad. The computer was an instrumentality of the crime. A list was attached showing what was subject to seizure. United States v. Winther, 2011 U.S. Dist. LEXIS 133799 (E.D. Pa. November 18, 2011)*:

To determine whether the warrant was overbroad, this Court “must compare the search and seizure authorized by the warrant with the ambit of probable cause established by the supporting affidavit.” In re Impounded Case, 840 F.2d 196, 200 (3d Cir. 1988) (citing Christine, 687 F.2d at 753). Under the Fourth Amendment, “’[a]n otherwise unobjectionable description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based.’” Christine, 687 F.2d at 753 (quoting 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.6, at 97 (1978)). “The fact that the warrant authorize[s] a search for a large amount of documents and records does not necessarily render the search invalid so long as there exists a sufficient nexus between the evidence to be seized and the alleged offenses.” United States v. Am. Inv. of Pittsburgh, 879 F.2d 1087, 1105-06 (3d Cir. 1989). An overly broad warrant can be cured by redaction, that is, by “striking from a warrant those severable phrases and clauses that are invalid for lack of probable cause or generality and preserving those severable phrases and clauses that satisfy the Fourth Amendment.” Christine, 687 F.2d at 754.

. . .

Defendant’s argument that separate warrants are required to search defendant’s house and his computer ignores the fact that defendant’s computer use is the essence of the crimes with which he is charged: using the computer to access the Internet to entice interstate travel for illegal sexual activity, to entice a minor to engage in illegal sexual activity, and to attempt to transfer obscenity to a minor. “[F]ederal courts have not required a second warrant to search a properly seized computer where the evidence obtained in the search did not exceed the probable cause articulated in the original warrant.” Richards, ___ F.3d ___, 2011 U.S. App. LEXIS 21465, [WL] at *15. The computer and its contents were the focal point of the search warrant, not afterthoughts. The affidavit of probable cause established a sufficient nexus between defendant’s alleged inappropriate Internet activities and the house in which the computer was located. See Voicenet Commc’ns, Inc. v. Corbett, No. 04-1318, 2010 U.S. Dist. LEXIS 95619, 2010 WL 3657840, at *12-13 (E.D. Pa. Sept. 13, 2010) (rejecting overbreadth challenge in child pornography case where “the affidavit of probable cause specifically establishe[d], in detail, how the plaintiffs’ computer system would be of evidentiary value in the search for evidence of child pornography”).

This case bears a strong resemblance to United States v. Christie, in which the defendant was charged with advertising child pornography on the Internet and “[t]he entirety of the FBI’s investigation of him focused on his use of a computer to receive, distribute, and advertise child pornography.” 570 F. Supp. 2d 657, 683-84 (D.N.J. 2008). The Christie court emphasized that Internet usage was at the core of defendant’s alleged crimes and rejected an overbreadth challenge to a warrant that authorized a search for a list of items very similar to the Item List in this case: …

As in Christie, the scope of the search authorized in this case was no broader than was supported by the affidavit of probable cause. Contrary to defendant’s claim, the warrant did not authorize the search and seizure “of all the files within [defendant’s] computer.” (Mot. Supp. Phys. Evid. 8.) The warrant instead repeatedly limited the search’s scope to the offenses charged. (See, e.g., Item List ¶ 11 (restricting search of computer-related items to “items listed above” and “items specifically noted”).).

A drug sale occurred out of defendant’s house where a marked $20 bill was passed outside, the defendant went into the house and returned with drugs. Officers then did a knock-and-talk and saw the $20 bill in plain view. Its seizure was proper. United States v. Paneto, 661 F.3d 709 (1st Cir. 2011).*

Officers had reasonable suspicion for stopping defendant’s vehicle ½ mile from the Canadian border when it was driving in a “looping pattern” on a cold and rainy day (which is their smuggling prime time). Two other vehicles had been stopped that night for driving the same without anybody getting ticketed or further detained, although defendant was suspected of driving both vehicles (which he later admitted) which smelled of damp marijuana but had none inside. United States v. Mayhew, 2011 U.S. Dist. LEXIS 134395 (D. Vt. November 21, 2011).*

The testimony of the NYPD officer that he stopped the defendant’s car because of a partially obscured license plate is belied by a photograph. His fellow officer in the car was found not credible because he refused to answer questions appropriately about allegations of his ticket fixing going to his credibility. United States v. Williams, 2011 U.S. Dist. LEXIS 134352 (S.D. N.Y. November 21, 2011).*

Defendant was in a stolen car and ran on foot from the scene of an accident and was tailed to his home. The entry into the home was “hot pursuit” and justified by exigent circumstances. United States v. Franklin, 2011 U.S. Dist. LEXIS 135759 (E.D. Ky. August 31, 2011):

Pursuant to the preventing-escape exception to the warrant requirement, and considering the factors enumerated in Rohrig, 98 F.3d at 1518, the Court finds the officers did not violate Franklin’s Fourth Amendment rights. The officers were pursuing a suspected felon who had stolen a car and run from the scene of an accident. It was reasonable immediately to set up a perimeter around the residence to which the suspect had apparently run to prevent further flight and potential escape. The Government’s interest in preventing the suspected felon’s escape was sufficient to justify the measured entry here, which was into the curtilage, as opposed to the interior, of Franklin’s home. Balancing the officers’ important interest against Franklin’s privacy interest in his side/backyard, the Court finds by a preponderance of the evidence that the officers were lawfully present at the rear corner of Defendant’s home.

Officers had plenty of reasonable suspicion when he was seen again on a remote road near the border after having crossed over four days earlier in a different truck. Older trucks with new Mexican license plates are common. United States v. Gomez, 2011 U.S. Dist. LEXIS 135637 (D. Ariz. October 11, 2011).*

Defendant’s stop was objectively reasonable for turning too wide. When the officer approached, there were furtive movements in the car. After defendant was handcuffed and arrested he was questioned without being Mirandized, and his confession is suppressed. United States v. Duheart, 2011 U.S. Dist. LEXIS 134082 (M.D. La. November 21, 2011)*:

The Court first concludes that Defendant’s detention was, indeed, custodial. Defendant was handcuffed, placed in the backseat of a patrol car, and had his shoes removed, and a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of a degree which the law associates with formal arrest. See Courtney, 463 F.3d at 337. As such, the officers were required to advise Defendant of his Miranda rights. Defendant began “confessing” a few minutes before 3:00 a.m., Defendant was not advised of his Miranda rights until approximately 3:06 a.m. … Defendant also confessed subsequent to the advisement of his rights. As the Court finds that Defendant was in custody, his confession of being “convicted of cocaine” between 2:58:19 and 2:59:06, must be suppressed. … Furthermore, pursuant to guidance provided by the Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643—where the Supreme Court held that Miranda warnings given mid-interrogation after the defendant gave an unwarned confession were ineffective, and thus a confession repeated after warnings were given was inadmissible at trial—the Court must also suppress any other confessions or statements Defendant made during his colloquy with officers Morse and Lea after he was advised of his rights.

Defendant doctor was convicted of tax evasion, and he claimed that defense counsel was ineffective for not appealing his motion to suppress which was denied. The motion was correctly denied, so defense counsel couldn’t be ineffective for not appealing what would be a meritless issue. United States v. Miller, 2011 U.S. Dist. LEXIS 134399 (W.D. La. November 21, 2011).*

Impoundment of defendant’s car was reasonable under the standardized procedures of the police department. They were not required to take the initiative to leave the car where it was, which might not have been practical anyway. State v. Cowan, 2011 Iowa App. LEXIS 1415 (November 23, 2011)*:

On appeal, Cowan makes much of the officers’ failure to check with the property owner to see if Cowan had permission to park his car at that location. Significantly, Cowan did not tell the officers he had permission to park there and did not object to his car being towed. Moreover, the officers could reasonably infer Cowan did not have permission to leave his car there, given the remote venue and the late-night timing of his mission to steal anhydrous ammonia from the Fowler elevator. Finally, it is not a constitutional requirement that police pursue a less intrusive alternative to impoundment. Huisman, 544 N.W.2d at 439.

While the officer was talking to the defendant, he could see the corner of a baggy of marijuana sticking out. He asked about drugs, and the defendant denied possession of any drugs. That justified pulling out the bag. State v. Klimstra, 2011 Iowa App. LEXIS 1362 (November 23, 2011).*

Defendant was in a motel room and management called the police that they got complaints of him smoking marijuana in the room. The police did a knock-and-talk on the room, and defendant let them in to look around, and marijuana was found. The motion to suppress was denied without findings. While the officers’ trial testimony differed slightly from the suppression motion, defendant did not ask to revisit the suppression motion, so the trial testimony would not be relied upon on appeal. The record showed the defendant consented to the entry. State v. Klaich, 2011 Iowa App. LEXIS 1356 (November 23, 2011).

Daily Beast: Local Cops Ready for War With Homeland Security-Funded Military Weapons:

A decade of billions in spending in the name of homeland security has armed local police departments with military-style equipment and a new commando mentality. But has it gone too far? Andrew Becker and G.W. Schulz of the Center for Investigative Reporting report.

Nestled amid plains so flat the locals joke you can watch your dog run away for miles, Fargo treasures its placid lifestyle, seldom pierced by the mayhem and violence common in other urban communities. North Dakota’s largest city has averaged fewer than two homicides a year since 2005, and there’s not been a single international terrorism prosecution in the last decade.

But that hasn’t stopped authorities in Fargo and its surrounding county from going on an $8 million buying spree to arm police officers with the sort of gear once reserved only for soldiers fighting foreign wars.

Impact Labs: How your car could be a star witness against you in court:

If you are in a serious car accident and are unfortunate enough to land in court afterwards, the star witness against you may not be an eyewitness or even a human being, it could be your car.

Today’s high-tech automobiles increasingly rely on computers to maximize performance and monitor operating systems. But while the under-the-hood computers are doing that, they may also be recording data about your driving.

. . .

Even now, however, such information could be cross-checked with information from devices like cellphones and GPS units to build what could be an air-tight court case.

“Now you’re in a situation where, if someone has the time and expertise, they can say you drove from here to there at this speed, you parked at Whole Foods, here’s what you bought, then you got back in your car and drove here and made a call to this number,” said Dean Gonsowski, eDiscovery counsel with Clearwell, which is part of the security firm Symantec. “… It’s staggering how much information can be collected.”

Defendant was accused of buying child pornography from a Russian company called CP Company and sending money through Western Union. The government identified numerous people, but targeted nine by the dollar amounts of purchases which came from one of the company’s websites. While the IP address was linked to defendant, it was not to an address. When this was added to the Western Union money orders and an address, that was probable cause and nexus to defendant’s house. United States v. Roach, 2011 U.S. Dist. LEXIS 120446 (D. Kan. October 18, 2011).*

The court credits the officers’ testimony that the stop was justified, and the evidence is uncontroverted that defendant consented to the search. United States v. Traylor, 2011 U.S. Dist. LEXIS 120129 (D. Nev. August 30, 2011).*

The stop of defendant lacked reasonable suspicion or probable cause, so the seizure of evidence from the car was invalid. The officer’s testimony was that he stopped the defendant for ignoring a traffic signal at the intersection in his report when it was undisputed that there was no traffic signal there. United States v. Nelson, 2011 U.S. Dist. LEXIS 120765 (D. Nev. September 27, 2011),* affd 2011 U.S. Dist. LEXIS 120684 (D. Nev. October 17, 2011) (government did not even object).

Historical cell site data requires probable cause and a search warrant. In re Application of the United States for Historic Cell Site Data, No. H-11-221 (S.D. Tex. November 11, 2011). Virtually the entire order:

When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause. U.S. Const., amend. 4. The records would show the date, time, called number, and location of the telephone when the call was made. These data are constitutionally protected from this intrusion. The standard under the Stored Communications Act, 18 U.S.C. § 2703(d), is below the standard required by the Constitution.

Defendant worked on a ranch, and he did not show that he had a reasonable expectation of privacy in the curtilage to the house on the property. As commercial property as to him, there was a lesser expectation of privacy in it. United States v. Quesada-Garcia, 2011 U.S. Dist. LEXIS 131544 (E.D. Cal. November 14, 2011).*

Officer responding to shots fired call found defendant matching the description. Considering the totality, the officer encountered defendant and defendant did not comply with commands to show his hands and put them up. That all added up to reasonable suspicion. United States v. McCullough, 2011 U.S. Dist. LEXIS 132108 (M.D. Pa. November 16, 2011).*

While a social guest in a motel room may have a reasonable expectation of privacy, vis-a-vis an overnight guest, the defendant still carries the burden on that, and he failed to establish it here. About all he showed here was that he was there for commercial purposes. United States v. Sherrill, 2011 U.S. Dist. LEXIS 132547 (D. Kan. November 16, 2011).*

The initial SW had an incorrect address, right number, wrong street. When the officer found out, he went back to the magistrate to get it reissued. The warrant was with probable cause, and the good faith exception applies. United States v. Woods, 2011 U.S. Dist. LEXIS 132437 (S.D. Fla. November 3, 2011), adopted 2011 U.S. Dist. LEXIS 132443 (S.D. Fla. November 16, 2011)* (If anything, the good faith exception should apply. What more can one ask for than to have the officer go back to the issuing judge and get it reissued for the correct address? What more could he do? To me, this isn’t even a close case.)

Defendant’s patdown was with reasonable suspicion. He was in a high crime area, and it certainly appeared to the officer that a hand-to-hand transaction just occurred. Tolbert v. State, 2011 Ala. Crim. App. LEXIS 98 (August 26, 2011).*

Defendant’s detention in the backseat of a locked squad car—where arrested individuals were detained—and the presence of twice as many law-enforcement officers as detainees at the scene created a “police-dominated atmosphere” suggesting custody and reinforced to defendant that she was targeted by the investigation. By the time defendant confessed, her detention could no longer be fairly characterized as an ordinary traffic stop. Defendant was questioned while in custody without receiving Miranda warnings and waiving her right against self-incrimination and her right to counsel. People v. Jordan, 2011 Ill. App. LEXIS 1174, 2011 IL App (4th) 100629 (November 14, 2011).

In three related cases, entry into defendant’s home after a controlled buy heard on a wire was with exigent circumstances. As to the latter case, a cell phone is so ubiquitous that it is not a “criminal tool.” State v. Freeman, 2011 Ohio 5651, 2011 Ohio App. LEXIS 4637 (8th Dist. November 3, 2011); State v. Atkinson, 2011 Ohio 5918, 2011 Ohio App. LEXIS 4848 (November 17, 2011); State v. Creighton, 2011 Ohio 5919, 2011 Ohio App. LEXIS 4842 (8th Dist. November 17, 2011).

Officers were at an apartment complex responding to a man with a gun call, and they were ultimately directed to a Buick in the parking lot which they looked in with a flashlight and saw drugs. The search of the car thereafter was valid. Even though the driver was not right there, it was still inherently mobile. State v. Miller, 2011 Ohio 5860, 2011 Ohio App. LEXIS 4798 (11th Dist. November 14, 2011).*

Police got a call about a suspicious man in a purple car. Defendant was seen in the car and observed going up to the side of a house then to the porch and back to the car. The officer had probable cause to believe that defendant was there to break into houses, and his stop was justified. State v. Williams, 2011 Ohio 5909, 2011 Ohio App. LEXIS 4825 (6th Dist. November 10, 2011).*

WSJ.com: Secret Orders Target Email / WikiLeaks Backer’s Information Sought by Julia Angwin:

The U.S. government has obtained a controversial type of secret court order to force Google Inc. and small Internet provider Sonic.net Inc. to turn over information from the email accounts of WikiLeaks volunteer Jacob Appelbaum, according to documents reviewed by The Wall Street Journal.

Sonic said it fought the government’s order and lost, and was forced to turn over information. Challenging the order was “rather expensive, but we felt it was the right thing to do,” said Sonic’s chief executive, Dane Jasper. The government’s request included the email addresses of people Mr. Appelbaum corresponded with the past two years, but …

Recorder.com: Search Case Highlights Courts’ Trouble with Tech by Kate Moser:

When Gov. Jerry Brown earlier this month vetoed Senate Bill 914 — which would have overturned a California Supreme Court decision giving police the power to search arrestees’ cellphones without a warrant — he said courts are “better suited” to draw such lines.

Not everybody’s so sure.

“I think Gov. Brown has it exactly backwards,” wrote George Washington University law professor Orin Kerr, a privacy rights expert, on The Volokh Conspiracy blog. “It is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cellphones.”

As emerging technologies upend societal expectations of privacy, some legal experts point to People v. Diaz as the latest example that courts are ill-equipped to adapt to that reality. (hyperlinks added)

The oral argument in Quon in SCOTUS proved that courts are not tech-savvy at all.