Defendant was sitting in a chair in a police barracks, and the police were able to find residual DNA from the chair that matched him. To be sure they had the right DNA, they used that to get a search warrant for a DNA swab which matched defendant to a rape. He had no reasonable expectation of privacy in the cast-off DNA left on a chair he was once sitting in. Raynor v. State, 201 Md. App. 209, 29 A.3d 617 (2011). (Noted by Orin Kerr on Volokh Conspiracy.)

Defendant was stopped for a tinted windows violation and the smell of marijuana was coming from the car. A drug dog was called for, and the defendant fled on foot. A search of the car revealed two pounds under the hood. Since Pennsylvania has not adopted the full federal automobile exception, the search of the car was invalid because true exigency did not exist. Commonwealth v. Gary, 2011 PA Super 206, 29 A.3d 804 (2011)*:

Appellant was in police custody prior to the search. At that point, Appellant had admitted to possessing marijuana and had once escaped from custody. Unlike in Copeland, the circumstances in this case did not evidence an imperative need for prompt police action; neither the lack of advance warning of criminal activity nor any other factor of record resulted in a threat of danger or dissipation of evidence. Thus, where no exigent circumstances were present, the warrantless search was unlawful and the evidence obtained from that search should have been suppressed. Accordingly, we reverse the order denying Appellant’s petition for writ of certiorari and remand for a trial at which the evidence obtained as a result of the search may not be admitted.

Think Progress: Eighth Circuit Embraces Dangerous Legal Claim Endangering Undocumented Immigrants’ Fourth Amendment Rights by Ian Millhiser:

Last June, the U.S. Court of Appeals for the Fifth Circuit held, wrongly, that the Second Amendment does not apply to undocumented immigrants. Last week, in a single paragraph order, the Eighth Circuit agreed. As ThinkProgress explained when the Fifth Circuit opinion was handed down, this decision isn’t just wrong, it is disastrously so. Indeed, if allowed to stand, it could strip all undocumented immigrants of their constitutional right to be free from unlawful searches and seizures.

Several constitutional provisions refer to rights that belong to “the people.” The Second Amendment refers to “the right of the people to keep and bear Arms.” And the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” According to the Fifth Circuit’s reasoning, which was embraced last week by the Eighth Circuit, undocumented immigrants enjoy neither right because they are not part of “the people”: ….

Court rejects consent was invalid because officer was too nice. As a threshold issue, none of the three had standing since they weren’t on the paperwork for the rented car and didn’t show they had permission to drive it. Alternatively, the consent shown on video was voluntary. United States v. Goode, 2011 U.S. Dist. LEXIS 144899 (E.D. Pa. December 16, 2011):

The defense argues that Trooper Lora’s friendly and respectful demeanor was so much so as to be actually and literally disarming and, hence, violative of Mr. Goode’s exercise of his free will. The Court declines to entertain an argument (or cynicism, generally) that would lead to a finding that politeness and good humor on the part of law enforcement officers can be subject to such alchemy as to unconstitutionally eviscerate the will power and intelligence of a fully functional adult. It is difficult to imagine the precise admonition that would have to be given to police officers to explain that they should beware of being “too nice” lest the exclusionary rule be invoked. Such a situation would set on its head the truism that more flies are caught with honey than with vinegar.

The lost affidavit and warrant here was sufficiently supported by testimony to establish the search was lawful. C.B.D. v. State, 2011 Ala. Crim. App. LEXIS 81 (September 30, 2011):

Although Sgt. Rafferty could not remember verbatim the contents of the affidavit and warrant, such word-for-word recitation of the contents of a lost document is generally not required. See, e.g., Laster v. Blackwell, 128 Ala. 143, 30 So. 663, 664 (1901) (“Though a witness may be unable to recall the [exact] language of a lost paper, he may be allowed to state its substance, if remembered.”); Barranco v. Kostens, 189 Md. 94, 97-98, 54 A.2d 326, 328 (1947) (“It is not necessary that the testimony of a witness who has read a lost instrument should be able to give its exact language, but it is sufficient if it proves its substance as far as it relates to the matter in controversy.”); Walker v. Drogmund, 101 Colo. 521, 525, 74 P.2d 1235, 1236 (1937) (“Ordinarily, it is not necessary that witnesses should be able to tell the contents of the [lost] instrument with absolute verbal accuracy, it being sufficient if they are able to state it in substance.”); and Posten v. Rassette, 5 Cal. 467, 469 (1855) (“In the case of lost instruments, where no copy has been preserved, it is not to be expected that witnesses can recite its contents, word for word; — it is sufficient if intelligent witnesses, who have read the paper, understood its object and can state it with precision.”).

Rather, evidence substantially establishing the contents of the document is all that is necessary. See, e.g., Commonwealth v. Ocasio, 434 Mass. 1, 5, 746 N.E.2d 469, 473 (2001) (“If all the terms of the warrant can be reliably established through secondary means … then the defendant will not be deprived of any opportunity to mount a challenge against the warrant.”); and Boyd v. State, 164 Miss. 610, 145 So. 618, 619 (1933) (when an affidavit and search warrant are lost, the State must only prove “substantially their contents”).

Opinion withdrawn and same result researched on rehearing. C.B.D. v. State, 2011 Ala. Crim. App. LEXIS 116 (December 16, 2011). Defendant did not preserve the issue, and, even if he did, his argument is meritless:

Although Sgt. Rafferty could not remember verbatim the contents of the affidavit and warrant, such word-for-word recitation of the contents of a lost document is generally not required. See, e.g., Laster v. Blackwell, 128 Ala. 143, 30 So. 663, 664 (1901) (“Though a witness may be unable to recall the [exact] language of a lost paper, he may be allowed to state its substance, if remembered.”); …

Rather, evidence substantially establishing the contents of the document is all that is necessary. See, e.g., Commonwealth v. Ocasio, 434 Mass. 1, 5, 746 N.E.2d 469, 473 (2001) (“If all the terms of the warrant can be reliably established through secondary means … then the defendant will not be deprived of any opportunity to mount a challenge against the warrant.”); and Boyd v. State, 164 Miss. 610, 145 So. 618, 619 (1933) (when an affidavit and search warrant are lost, the State must only prove “substantially their contents”).

Following California’s Diaz and the clear majority of jurisdictions, the search incident of defendant’s cell phone was reasonable. Gracie v. State, 2011 Ala. Crim. App. LEXIS 123 (December 16, 2011):

We agree with the majority of jurisdictions surveyed that a warrantless search of a defendant’s cellular telephone following his arrest does not violate Fourth Amendment principles; we are not persuaded by the rationale in Smith that a cellular telephone may not be searched incident to a lawful arrest without first obtaining a warrant because the cellular telephone is not a container. In the instant case, the record indicates that Detective Soronen saw Gracie using a cellular telephone after the robbery. After placing Gracie under arrest, Detective Soronen searched the call log and text messages contained in Gracie’s cellular telephone to determine if Gracie had an accomplice. The cellular telephone was immediately associated with Gracie’s person, and pursuant to the decision of the United States Supreme Court in Robinson, Detective Soronen was permitted to inspect the cellular telephone. 414 U.S. at 236. Accordingly, the warrantless search of Gracie’s cellular telephone following Gracie’s arrest did not violate Fourth Amendment principles, and the circuit court did not err in denying Gracie’s motion to suppress the text message seized pursuant to Detective Soronen’s search of Gracie’s cellular telephone.

A search warrant issued for defendant’s Belize residence was not governed by the Fourth Amendment because it was conducted under and enforcing Belize law and was otherwise reasonably executed. There was no showing of a “joint venture” of the U.S. and Belize even though U.S. officers were present. United States v. Flath, 2011 U.S. Dist. LEXIS 144931 (E.D. Wis. November 18, 2011):

In arguing that he is subject to the protection of the Fourth Amendment, Flath contends that the “joint venture” doctrine is applicable to his case. I disagree. To be clear, the record shows cooperation between the U.S. officers and Belizean officers. And a Belizean officer believed the search to be a “joint operation.” But, whether the search is a joint venture depends on the level of U.S. participation. See Marzano, 537 F.2d at 271 (finding that Grand Cayman officer’s intent to help the United States was not a sufficient reason to treat his actions as those of United States agents); United States v. Baboolal, No. 05-CR-215, 2006 WL 1942357, *3 (E.D. Wis. July 11, 2006) (“[T]he mere fact that the Canadians and Americans were cooperating as part of the Toronto Strategic Partnership does not transform any subsequent search into a joint venture.”). That the U.S. also expressed interest in prosecuting Flath for violation of U.S. laws does not alter the analysis. See Marzano, 537 F.2d at 271; Baboolal, 2006 WL 1942357, at *3 (stating that “if the fact that the case ultimately ends up in a United States court was significant, the [joint venture] doctrine would apply in virtually all cases involving foreign searches”).

At the outset, I see a distinction between the U.S. officers’ involvement in the search at issue and in the interrogation of Flath which is not at issue. The U.S. was substantially involved in Flath’s interrogation. A U.S. officer read Flath his Miranda rights, questioned him, and showed him incriminating evidence.

By contrast, the U.S. officers’ level of involvement in the search, on which I must focus, was more peripheral. Marzano, 537 F.2d at 270 (whether the Government participated as to render the search a Government action must be determined by examining the facts surrounding the search). Here, the U.S. officers’ involvement in the search was as follows. The U.S. officers passed the incriminating video to the local Belizean police which launched the investigation. The U.S. officers accompanied Belizean police to get the search warrant. The U.S. officers accompanied Belizean police to the residence. The U.S. officers waited at the back door with Belizean police upon arrival at the residence. The U.S. officers stopped and secured Flath at the back door when he tried to leave. The U.S. officers were present but did not participate in the search.

These facts do not support a finding that the U.S. officers’ actions in the search were so substantial as to be considered participants in the search. Passing of information and presence during the search are not sufficient. Marzano, 537 F.2d at 270 (“[T]he law is clear that providing information to a foreign functionary is not sufficient involvement for the Government to be considered a participant in acts the foreign functionary takes based on that information …. Mere presence of federal officers is not sufficient to make the officers participants.”).

Consent given when there was a team of officers on defendant’s property and a helicopter hovering overhead. State v. Davis, 2011 NMCA 102, 263 P.3d 953 (2011), Certiorari Granted, October 4, 2011, No. 33,203:

[*16] Although Defendant gave specific and unequivocal consent, we conclude that the consent was given under duress and coercive circumstances. Defendant was surrounded by numerous uniformed, armed law enforcement officers and several law enforcement vehicles while a helicopter hovered overhead. Professor LaFave observes in his treatise that, although such circumstances are not per se coercive, “[t]he presence of a number of policemen is likely to suggest that the police are contemplating an undertaking which does not depend upon the cooperation of the individual from whom permission to search is being sought.” 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(b), at 62 (4th ed. 2004). Although only Officer Merrell approached Defendant to seek consent, it is undisputed that the remaining officers were spread throughout the property and were visible to Defendant during his exchange with Officer Merrell.

There was no showing that the stop’s lasting 15 minutes was not the normal incidents of a traffic stop. [Almost sounds like the burden has shifted here to the defendant to show it was not reasonable rather than the government proving it was reasonable.] United States v. McGee, 2011 U.S. Dist. LEXIS 124677 (S.D. W.Va. October 27, 2011).*

The police had exigent circumstances based on “information from appellant’s mother by which they could have reasonably inferred that appellant was agitated and possibly mentally disturbed. Certainly, appellant’s behavior in running from the car into the corn field, would have supported that inference.” State v. Sheffer, 2010 Ohio 5167, 2010 Ohio App. LEXIS 4353 (6th Dist. October 22, 2010), companion case at State v. Sheffer, 2010 Ohio 5165, 2010 Ohio App. LEXIS 4349 (6th Dist. October 22, 2010).*

Probable cause was shown by a link between defendant’s screen name and an IP address traced to defendant’s address, and “it was reasonable to infer that he had child pornography on the computer because he asked ‘Centralpamaster’ for photographs to view while masturbating.” State v. Shields, 124 Conn. App. 584, 5 A.3d 984 (2010).*

Officer’s mistake in stopping defendant with a special plate issued by the state without legal authority was a reasonable mistake of fact and not a mistake of law, so the stop was not invalid. State v. Horton, 150 Idaho 300, 246 P.3d 673 (App. 2010).*

Taxidermy qualifies for regulated industry inspections under New York v. Burger. United Taxidermists Ass’n v. Ill. Dep’t of Natural Res., 436 Fed. Appx. 692 (7th Cir. 2011):

On appeal the Association reasserts its narrow argument that inspections under the Code do not meet the first Burger prong because there is no substantial government interest in tagging animals. Although this circuit has not explored the Burger test extensively, our prior interpretations have construed the first step as asking whether a substantial interest drives the entire regulatory scheme, not a particular part of it. … Thus, the relevant inquiry here is whether a substantial government interest informs the taxidermy industry as a whole. Although there is not much circuit court precedent addressing that requirement, we conclude that the state’s process is adequate and appropriate. Illinois owns and has title to all wild birds and mammals, and the state enacted the Code “to protect and regulate the hunting and capture of certain species.” 520 ILCS 5/2.1; see People v. Taylor, 561 N.E.2d 667, 672 (Ill. 1990). Section 3.21 in particular “ensure[s] that protected animals are taken in compliance with the other provisions of the Code.” Taylor, 561 N.E.2d at 672. Accordingly, the need to protect wildlife demonstrates that Illinois has a substantial interest in regulating the taxidermy industry. …

The Association does not dispute that the Code satisfies the second prong of Burger, whether the warrantless nature of the search is necessary to further the regulatory scheme. And any challenge to that prong would be meritless because abundant case law extols the necessity of surprise in these searches. Burger, 482 U.S. at 710; …

Regarding the third prong, the Association first asserts that the Code’s scope is too broad because it does not define the “taxidermy records” subject to inspection, and thus provides insufficient notice to taxidermists that the tags attached to animals are subject to search. The Association concedes that “taxidermy records” include the written records kept by taxidermists, but contends that the term cannot possibly include the tags attached to the animals. The Association notes the Code’s requirement that taxidermists keep “records” for at least two years or however long the taxidermist possesses the animal or its parts, 520 ILCS 5/3.21(d), and points out the absurdity of any obligation to keep a tagged specimen after a taxidermist no longer has the specimen in his shop.

An examination of section 3.21(d) in the context of the entire Code, however, refutes the Association’s narrow argument. … Moreover, removing the tagging requirement from the breadth of inspections also would frustrate the purpose of the Code: regulating the capture and possession of wildlife. See United States v. McDonald, 453 F.3d 958, 960 (7th Cir. 2006); In re Hardin, 932 N.E.2d 1016, 1020 (Ill. 2010). Allowing inspectors to search the tags enables them to verify the accuracy of a taxidermist’s written records and ensure compliance with the Code.

Plaintiff’s claim that the defendant police officer arrested him outside the city limits was not a Fourth Amendment claim. The excessive force claim’s failure was supported by the evidence. Everett v. Marianna Police Dep’t, 2011 U.S. App. LEXIS 12668 (11th Cir. June 20, 2011) (unpublished).*

The Pennsylvania search warrant affidavit incorporated a New Jersey search warrant by reference and showed probable cause. United States v. Lackner, 2011 U.S. Dist. LEXIS 66416 (D. Conn. June 21, 2011).*

A controlled buy from a house is probable cause to search the house. It also provides probable cause to stop the defendant later when he leaves the house to a prearranged drug buy. United States v. Briggs, 431 Fed. Appx. 389 (6th Cir. 2011).*

Defendant’s conclusory Franks claim fails. United States v. Cha, 431 Fed. Appx. 790 (11th Cir. 2011).*

Disengaging from a conversation with an officer and walking in one’s house is not an invitation to the officer to enter. United States v. Little, 431 Fed. Appx. 417 (6th Cir. 2011):

Admittedly, we have found valid consent can occur not just by words but by gesture or conduct as well. United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc). In Carter, officers had suspicion that defendant, who was staying in a Red Roof Inn, was engaged in drug trafficking. They knocked on his door and asked if they could enter. In response, “Carter stepped back and cleared a path for the officers to enter.” Id. at 587. We reasoned as follows when concluding that the totality of the circumstances supported the district court’s conclusion that defendant gave his consent for the officers to enter:

The investigating officers were instantly recognizable as policemen when Carter opened the door. They properly asked permission to enter, and Carter stepped back, letting them in. Any ordinary caller, under like circumstances, would understand assent to have been given, and the police are not held to a higher standard in this regard than an ordinary person.

Id. at 588 (citation omitted) (emphasis added). By contrast, in this case Harper neglected to ask for permission to enter and instead, as the district court found, “merely followed Defendant into the house when Defendant went in to get additional clothing.” Moreover, he conceded at the suppression hearing that his objection was to secure the cell phone. While this circuit has not considered whether the totality of the circumstances can ever support a finding of implied consent in the absence of an explicit request for permission, the Eleventh Circuit has held that consent cannot be inferred by the simple act of disengaging from conversation with an officer and walking into the house. Bashir v. Rockdale Cnty., Ga., 445 F.3d 1323, 1329 (11th Cir. 2006). As explained earlier, we agree with this approach. Officer Harper had two alternative ways that he could enter the residence in compliance with the Fourth Amendment: obtain a search warrant or request and obtain consent from defendant. He did neither and therefore his entry violated the Fourth Amendment and the evidence acquired as a result of that unlawful entry – defendant’s cell phone and his subsequent written statements based upon possession of the cell phone – must be suppressed.

The private search doctrine of Jacobsen that an opened parcel by a private person is subject to police search will not be extended to residences—here a hotel room. United States v. Spicer, 432 Fed. Appx. 522 (6th Cir. 2011):

The problem is this: we have already explained, unequivocally, that we are “unwilling to extend the holding in Jacobsen to cases involving private searches of residences.” United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997). Recognizing the difference between one’s privacy interest in a residence and one’s privacy expectation in an opened parcel, we decline to stretch the private-search doctrine to residential searches, including police searches of hotel rooms premised on private employees’ discoveries. Id. at 698-99; see also United States v. Williams, 354 F.3d 497, 510 (6th Cir. 2003). Spicer is thus right, but for the wrong reason—it is not that the district court failed to properly apply Jacobsen; it is that Jacobsen does not apply at all.

[The district court relied on a case of mine, United States v. Richards, 301 Fed. Appx. 480 (6th Cir. 2008), involving a rented storage unit. The Sixth Circuit brushed that analogy aside.]

Jail calls were subject to monitoring and recording, and the defendants knew it, so they will not be suppressed. United States v. Colbert, 2011 U.S. Dist. LEXIS 85288 (W.D. Pa. August 3, 2011).*

ACLU.org: Justice Department Avoids Decision On Warrantless Cell Phone Tracking by Catherine Crump:

Federal law enforcement has used people’s cell phones to track their movements for at least a decade, but even today there is no clear answer to whether the government needs a warrant to do so. Why? In part because the U.S. Justice Department appears to be pursuing a conscious strategy of trying to avoid a ruling on this question by a court of appeals.

Here’s how that happens: Federal agents track people without a warrant, and in some instances, are slapped down by some district courts for this (in our view and in the view of these district courts) unlawful behavior. But they refrain from taking those losses to the Courts of Appeals, perhaps because a ruling that they need a warrant would then become the law of the land in the territory of that appeals court, and they want to be able to continue to engage in warrantless cell phone tracking whenever they can.

Brookings Institution: The Constitution and Technology: How Far is Too Far? by Jeffrey Rosen, Nonresident Senior Fellow, Governance Studies:

Although we are early in the twenty-first century, breathtaking changes in technology are posing stark challenges to our constitutional values. From free speech to privacy, from liberty and personal autonomy to the right against self-incrimination, basic constitutional principles are under stress from technological advances unimaginable even a few decades ago, let alone during the founding era. In Constitution 3.0, we asked a group of provocative thinkers to imagine the ways in which technological change will challenge our constitutional and legal values in the year 2030.

Will privacy become obsolete, for example, in a world where ubiquitous surveillance is becoming the norm? Imagine that Facebook and Google post live feeds to public and private surveillance cameras, allowing 24/7 tracking of any citizen in the world. How can we protect free speech now that Facebook, Google, and other private intermediaries have more power than any king, president, or Supreme Court justice to decide who can speak and who can be heard? How will advanced brain-scan technology affect the constitutional right against self-incrimination? And on a more elemental level, should people have the right to manipulate their genes and design their own babies? Should we be allowed to patent new forms of life that seem virtually human? And we then asked our contributors to propose ways of translating and preserving constitutional values in the year 2030, in the face of dizzying technological change.

An inventory policy does not have to be detailed if it otherwise complies with Bertine. United States v. Davis, 2011 U.S. Dist. LEXIS 142923 (N.D. W.Va. December 12, 2011)*:

While it is true that there is not a written precise step-by-step process as to how to perform an inventory of a seized vehicle outlined in the Department’s policy, it does require the following:

1. the officer must have “lawful custody” of the vehicle; and

2. “[t]he scope of the inventory shall be limited to those parts of a vehicle likely to conceal important, hazardous, or valuable items including, but not limited to, the passenger compartment, the trunk, and glove compartment.”

The undersigned concludes the above quoted limitations in totality constitute the type of “standardized criteria” referred to in Bertine, Id., and certainly acts to “‘curtail the discretion of the searching officer so as to prevent searches from becoming a “ruse for a general rummaging in order to discover incriminating evidence.’” Banks, supra at 738, 739.

Law.com: Government agrees to place conviction in FCPA case on hold by Amanda Bronstad:

Prosecutors in a disastrous Foreign Corrupt Practices Act case agreed to toss the conviction of a third individual defendant in light of a federal judge’s dismissal of related charges against two co-defendants for prosecutorial misconduct.

. . .

Then, on Dec. 1, U.S. District Judge Howard Matz in Los Angeles threw out the convictions of the company and the two executives. He cited false statements that an FBI agent made to the grand jury and false information in affidavits submitted by the government for search-and-seizure warrants, among other wrongdoing.

Defendant did not stop as soon as the officer put on his lights, and when he did, he approached the officer which made the officer suspicious that there was something in the car he didn’t want the officer to see or smell. He was nervous, and his hands were shaking. The detention was not too long, and the drug dog arrived within six minutes. State v. Simmons, 2011 Ohio 6339, 2011 Ohio App. LEXIS 5219 (11th Dist. December 12, 2011)*:

Mr. Simmons’ expression of nervousness, coupled with his unusual behavior of not pulling over immediately when the lights were activated, and then turning left to parking in an area not designated for parking and exiting his car to approach the police officer, provided Officer Burrington with an articulable reasonable suspicion to extend the detention and perform a K-9 sniff. See State v. Sherrod, 11th Dist. No. 2009-L-086, 2010 Ohio 1273 (holding that a totality of circumstances similar to the case sub judice justified continued detention of the appellant for the purposes of conducting a K-9 sniff). The facts changed, and so did the officer’s ability to continue detaining Mr. Simmons.

As the officer approached defendant’s car, he saw a “furtive movement” of handling a pipe and hiding it and putting his hand under the dash more than once. Since the officer could see the pipe, that was probable cause. State v. Aaron, 2011 Ohio 6309, 2011 Ohio App. LEXIS 5176 (6th Dist. December 9, 2011).*

The stop of defendant’s airplane in Louisiana was without probable cause, and the search was suppressed. A local police officer told an operator at a small airport to be on the look out for suspicious airplanes and conduct. An anonymous tip to some other officer from the operate led to innocuous conduct being parlayed into suspicion of crime, and it wasn’t. Officers “met Morgan’s plane with weapons drawn threatening to shoot. They ordered the occupants out, placed them face down on the tarmac and handcuffed them. After they were handcuffed they were allowed to sit on the tarmac separated from each other, immediately adjacent to an armed law enforcement officer until the air interdiction agents arrived.” Understatement of the month: “This show of force would make any reasonable person believe that he was not free to leave.” United States v. Morgan, 2011 U.S. Dist. LEXIS 142065 (W.D. La. December 8, 2011)*:

The totality of the circumstances reveals that the officers of the St. Landry Parish Sheriff’s Department did not have probable cause to arrest Morgan and the passengers on his plane. Agent Evans testified that all she informed the Air and Marine Operations Center was that she needed a K-9 and personnel assistance to detain the occupants in Opelousas until they arrived. She also advised them that a source contacted her and said individuals at the Victoria airport were acting strangely, smelled like marijuana, that there were “possibly two illegal aliens” (which she surmised from the report of the two Hispanic males) and they needed to make sure everything was “on the up and up.” Although nobody from the Sheriff’s Department who participated in the actual arrest testified, according to Agent Evans this was the only information that would have been in the possession of the Sheriff’s Department at the time of the arrest. However, even if all of the information in the possession of Agent Evans is imputed to the Sheriff’s Department, it still does not rise to the level of probable cause as she candidly admitted.

The evidence presented was that Agent Evans received an anonymous tip from someone at the Victoria, Texas airport whose reliability she could not verify other than to verify the itinerary. This source reported that the passengers on Morgan’s airplane were “acting strangely,” but neither Agent Evans nor the source clarified what actions constituted “acting strangely,” what that description meant or to whom this observation applied. The source said the plane occupants smelled of marijuana, however, Agent Evans did not know on which day the occupants allegedly smelled of marijuana, the day they arrived, the day they left or both. The source said the pilot purchased gasoline with cash which Agent Evans testified was a “red flag” that the pilot was trying to avoid a paper trail. However, the amount of gasoline purchased with cash was a relatively small amount — $155.20 — and there is no evidence that any effort was made by Morgan to destroy the paper trail for the purchase. On the contrary, the receipt introduced into evidence identified the tail number of the plane, the amount of the purchase, and the date and time it was purchased. From this information, the owner of the plane could be readily identified. Yet Agent Evans did not identify the owner until she got to the airport in Opelousas. The source said Morgan dropped off the two women passengers in Victoria, flew to McAllen, then returned with two additional men who appeared to be Hispanic. Agent Catalan confirmed that there is an Hispanic population in McAllen that is legally in this country.

WaPo: FBI turns down request for info. on Carrier IQ by Hayley Tsukayama:

The Federal Bureau of Investigation has denied a request regarding Carrier IQ, a piece of software found on smartphones and designed to send information on handsets to carriers. The request, filed by reporter Michael Morisy of Muckrock News under the Freedom of Information Act, asked for “manuals, documents of other written guidance used to access or analyze data” gathered by any Carrier IQ program.

In denying the request, the FBI said it had information but could not disclose it because it is considered “law enforcement records.” In other words, they’re vital to some kind of ongoing investigation.

The Slatest: Police Use Predator Drone To Nab North Dakota Suspects; Operation leads to first known arrests of U.S. citizens with aid of unmanned spy planes by Will Oremus:

Drones: They’re not just for hunting foreigners anymore.

The Los Angeles Times reports that police in North Dakota this past summer made what are believed to be the first arrests of U.S. citizens with the help of a Predator spy drone.

Nelson County Sheriff Kelly Janke called in the unmanned, unarmed aircraft after he was chased off of a family farm by three men with rifles, the Times explains. It circled the 3,000-acre plot, tracked down the suspects and showed they were unarmed, allowing police to converge and arrest them.