Defendant was fired from his job, and the company found by a stumbled-upon email he was still remotely accessing the company computer to take information from them. They traced his accesses to a particular IP address and reported it to the police. A search warrant was obtained for all his computer equipment for evidence of computer trespass, and that was the scope of search. In the course of the search, two potential pictures of child pornography were stumbled upon. The search stopped and another warrant was sought for child pornography. The warrant was valid for seizure of the computers for evidence of computer trespass at his house via the IP address in use by him at the time of the intrusion, and then the search. The warrant was not overbroad. United States v. Getgen, 2011 U.S. Dist. LEXIS 133239 (M.D. Pa. November 18, 2011):

Getgen argues that SW-61-09 should only have permitted the executing officers to search for evidence relating to Getgen’s use of his computer to access the internet, and, therefore, it was unnecessary to search any of his computer files on either his computer or other electronic media. (Doc. 28, at 13). As Getgen noted, however, remotely accessing another computer without authorization does not constitute computer trespass under § 7615. Instead, the key evidence of computer trespass related to the intercepted and forwarded email, which would likely leave evidence in the form of a file or other type of data in the computer of the intruder. Furthermore, the search could not be limited to certain dates or file extensions because computer files can be easily disguised. See, e.g., United States v. Highbarger, 380 Fed. App’x 127, 130 (3d Cir. 2010); United States v. Crespo-Rios, 645 F.3d 37, 43 (1st Cir. 2011) (citing cases); United States v. Hill, 322 F. Supp. 2d 1081, 1091 (C.D. Cal. 2004) aff’d, 459 F.3d 966 (“Criminals will do all they can to conceal contraband, including the simple expedient of changing the names and extensions of files to disguise their content from the casual observer …. There is no way to know what is in a file without examining its contents, just as there is no sure way of separating talcum from cocaine except by testing it.”). The risk of disguised files was especially cogent in the instant case when Getgen worked with computers professionally. (See Gov’t Ex. A). Accordingly, the court rejects Getgen’s argument that SW-61-09 was overbroad.

WaPo.com: License plate readers: A useful tool for police comes with privacy concerns by Allison Klein and Josh White:

An armed robber burst into a Northeast Washington market, scuffled with the cashier, and then shot him and the clerk’s father, who also owned the store. The killer sped off in a silver Pontiac, but a witness was able to write down the license plate number.

Police figured out the name of the suspect very quickly. But locating and arresting him took a little-known investigative tool: a vast system that tracks the comings and goings of anyone driving around the District.

Scores of cameras across the city capture 1,800 images a minute and download the information into a rapidly expanding archive that can pinpoint people’s movements all over town.

Police entered the suspect’s license plate number into that database and learned that the Pontiac was on a street in Southeast. Police soon arrested Christian Taylor, who had been staying at a friend’s home, and charged him with two counts of first-degree murder. His trial is set for January.

More than 250 cameras in the District and its suburbs scan license plates in real time, helping police pinpoint stolen cars and fleeing killers. But the program quietly has expanded beyond what anyone had imagined even a few years ago.

With virtually no public debate, police agencies have begun storing the information from the cameras, building databases that document the travels of millions of vehicles.

Huffington Post: TSA: 10 Years Old & None The Wiser:

In the 10 years that the TSA has existed, there have been countless public blunders by the agency that just can’t seem to get it right.

From John “Don’t Touch My Junk” Tyner to the TSA’s “Get Your Freak On Girl” note the American public seems to simply not be able to get enough of the Transportation Security Administration, for better or worse.

The TSA is a “cumbersome organization”, Kate Hanni, Executive Director of FlyersRights.org (a non-profit organization with 50,000 members dedicated to bettering the conversation between travelers, the airlines and the Government), and blogger for The Huffington Post, said in a phone conversation, “There are some 67,000 employees at the TSA. It’s security theater,” she added.

I referred to TSA as “security theater” here in July 2007.

Search incident of a vehicle for being under the influence is proper in California for evidence of what the defendant is under the influence of. That produced drug evidence, and that justified a search incident of defendant’s cell phone because drug users and dealers connect through cell phone text messages and calls. People v. Nottoli, 199 Cal. App. 4th 531, 130 Cal. Rptr. 3d 884 (6th Dist. September 26, 2011):

We reject respondents’ assertion that there must be specific, articulable facts “indicating that the cell phone held relevant evidence of the offenses for which Reid Nottoli was arrested.” Respondents cannot point to any language in Gant imposing such a requirement. Under Gant, a vehicular search incident to arrest is justified “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (Gant, supra, 129 S.Ct. at p. 1714, italics added.) It does not require any degree of probability that evidence bearing on that offense will be found in a particular container that is searched.

. . .

Moreover, even if Gant were construed to require a factual predicate for searching each object found in a vehicle searched incident to arrest, a proposition we reject, it was reasonable for Deputy Ryan to believe, based on the objective circumstances and his training and experience, that evidence relevant to Reid’s offense of arrest for being under the influence might be found on Reid’s cellular phone. The deputy testified that, in his experience, drug users and sellers use cell phones as their “main communication” and cell phones can contain text messages related to acquiring and offering drugs. Further, as suggested by the People, text messages saved in Reid’s cell phone might have identified the controlled substance or contained his admissions “as to what he had done that night.” This would be corroborative evidence.

Pulling up one’s pants from behind is not indicative of pulling up the pants because a gun is weighing them down, and the officer failed to articulate reasonable suspicion for defendant’s stop. Also, Missouri is a concealed carry state which might make it legal anyway. But, testifying to possession was a waiver. State v. Norfolk, 2011 Mo. App. LEXIS 1526 (November 15, 2011):

While we believe the trial court clearly erred in denying Norfolk’s motion to suppress, we find this error was harmless beyond a reasonable doubt because the evidence sought to be suppressed would have been cumulative to Norfolk’s trial testimony. Norfolk voluntarily stated under oath at trial that he possessed the gun and the drugs found after the search. This confession prevents us from providing Norfolk any claim of relief on his point of error. “It would be trifling with the administration of the criminal law to award [a defendant] a new trial because of a particular error committed by the trial court, when in effect he [or she] has stated under oath that he [or she] was guilty of the charge preferred against him [or her].” Pate, 859 S.W.2d at 870 (quoting Motes v. United States, 178 U.S. 458, 20 S. Ct. 993, 44 L.Ed. 1150 (1900)). See also, State v. Nunn, 646 S.W.2d 55, 57 (Mo. banc 1983) (no reversible error even if motion to suppress statements should have been granted because defendant testified under oath at trial confirming the truth of the incriminating statements); State v. Patino, 12 S.W.3d 733, 741 (Mo. App. S.D. 1999) (even if drugs should have been suppressed because of an illegal traffic stop, admission into evidence was harmless error because defendant’s voluntary testimony amounted to a confession which made the admission of the drugs cumulative); State v. Davalos, 128 S.W.3d 143, 148 (Mo. App. S.D. 2004) (although troubled by defendant being forced to testify in the face of possibly illegally obtained evidence, defendant’s voluntary incriminating statements rendered the admission of the evidence cumulative and harmless beyond a reasonable doubt).

Obvious practice pointer: As a part of the decision to testify, one has to consider the likelihood of an admission to possession of the contraband being a waiver of the search issue. The defense here argued that there was no waiver, but the court disagreed. Most states would likely follow this rationale. It depends on the case, of course, but is one better off not testifying at all to preserve the search issue, or is there some larger goal to be achieved that justifies testifying and waiver?

The defendant ran a “chop shop” that also was a drug distribution point that apparently had been ongoing for eight years. Three week old information about a trailer load of marijuana having come in was not stale under the circumstances. United States v. Cruz-Lopez, 2011 U.S. Dist. LEXIS 131267 (W.D. Ky. July 28, 2011):

The task of determining whether information contained in a search warrant affidavit has become stale requires the Court to do more than merely conduct an “arbitrary accounting [of] days on a calendar….” Spikes, 158 F.3d at 923-24. Rather, the Court must take into account factors such as: (1) the character of the crime (chance encounter or regenerating conspiracy); (2) the nature of the criminal (nomadic or entrenched); (3) the items to be seized (perishable or readily transferrable or enduring); and (4) the place to be searched (a secure operational base or a mere forum of convenience). …

A child abuse victim’s report that defendant had child pornography on his computer that he made the child look at was probable cause for a search warrant for the computer and the house. State v. Roggenbuck, 2011 Mo. App. LEXIS 1520 (November 15, 2011).*

Defendant’s claim that a jail monitoring telephone calls violated the state wiretapping statute was not raised until appeal and is waived, but defendant would lose on the merits anyway because he consented to speaking on the phone knowing that calls were recorded. State v. Smith, 2011 Tenn. Crim. App. LEXIS 830 (November 14, 2011).*

The Cap Times: Turley: We don’t care, it seems, if Big Brother is watching:

In December 1967, the Supreme Court issued what many consider to be one of its greatest and most eloquent decisions, in Katz v. United States. That case, which is celebrated as saving privacy, articulated the principle that “the Fourth Amendment protects people, not places.” The decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

This past week, a different high court sat to hear a new privacy challenge in Jones v. United States. The issue this time is whether privacy protections are dying in the United States — and whether Katz may be to blame.

The Jones case involves a Global Positioning System device. Antoine Jones was convicted in the District of Columbia in 2008 on drug charges after police followed him for 28 days with a secretly installed GPS device that monitored his location.

A federal contractor consented to record of employees of alleged discrimination by responding to a subpoena without challenging it. United Space Alliance, LLC v. Solis, 2011 U.S. Dist. LEXIS 130938 (D. D.C. November 14, 2011):

United Space next argues that the OFCCP request for additional data violated the Fourth Amendment prohibition against unreasonable searches and seizures. This constitutional protection applies to administrative inspections as well as criminal investigations. Camara v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). It extends to places of business as well as private homes. See v. City of Seattle, 387 U.S. 541, 545, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). Administrative warrants and subpoenas must both comport with the Fourth Amendment, although different standards apply to each. For an administrative warrant to issue, the government must have either “specific evidence of an existing violation” or the ability to show that “reasonable legislative or administrative standards” such as “a general administrative plan … derived from neutral sources” justify the warrant. Marshall v. Barlow’s, Inc., 436 U.S. 307, 320, 321, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978) (internal quotation marks omitted). Such a showing satisfies the constitutional requirement that “no Warrants shall issue, but upon probable cause,” U.S. CONST. amend. IV, however “[p]robable cause in the criminal law sense is not required” to justify an administrative warrant. Barlow’s, 436 U.S. at 320. The standard set out in Barlow’s applies whenever “government inspectors [attempt] to make nonconsensual entries into areas not open to the public,” Donovan v. Lone Steer, Inc., 464 U.S. 408, 414, 104 S. Ct. 769, 78 L. Ed. 2d 567 (1984), and ensures that “the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field.” See, 387 U.S. at 545.

“[T]he enforceability of [an] administrative subpoena,” on the other hand, “is governed, not by [the Court’s] decision in Barlow’s … but rather by [its] decision in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614 (1946).” Lone Steer, 464 U.S. at 414. Under Oklahoma Press and its progeny, “when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” Id. at 415 (quoting See, 387 U.S. at 544). This line of cases holds administrative subpoenas to a considerably lower standard than administrative warrants—a standard that notably focuses on the breadth of the subpoena rather than the motivation for its issuance. See United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 94 L. Ed. 401 (1950) (“Even if one were to regard the request for information … as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.”). “The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.” Id. at 652-53 (1950) (quoting Oklahoma Press, 327 U.S. at 208); see also Lone Steer, 464 U.S. at 415. This line of cases “in no way leaves an employer defenseless against an unreasonably burdensome administrative subpoena requiring the production of documents.” Lone Steer, 464 U.S. at 415. Rather, it “provide[s] protection for a subpoenaed employer by allowing him to question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court.” Id.

NetworkWorld: Do you give up a reasonable expectation of privacy by carrying a cell phone? by Ms. Smith:

Tracking via mobile devices continues to be a popular, yet extremely invasive means of electronic location surveillance with law enforcement. We looked at secret sessions that teach government and law enforcement how to hack and conduct surveillance on the masses. At that same ISS World Americas conference, there were several teaching sessions devoted to mobile devices and vendors promoting surveillance tech and cell phone capturing equipment. TeleStrategies taught a session that included, “Transforming cell records and location data into actionable intelligence, Smart Phone intercept and wireless provider business model, Apple iPhone, Google Android and LTE Challenges.”

Utimaco LIMS presented “SMS, the forgotten source of intelligence!” VASTech, whose tech was used by Gadhafi’s security agents to record “between 30 and 40 million minutes per month from both landline and mobile phone conversations,” demonstrated “Satellite Signal Analyzer” Discover de Sky. And Berkeley Varitronics Systems, which puts out technology like the Squid as seen on the right, taught Handheld Tools for Cell Phone Direction Finding and Location. Septier, which offers solutions like in the video below, taught Mobile Location Tracking that is based on a Integration of an in network GMLC and Tactical Cellular Location Direction Finders.

Cato: Internet Belatedly Notices How Much Spying Government Can Do Without a Warrant by Julian Sanchez:

I’m seeing a lot of technology news sites reporting, in tones of shock and horror, on a recent court ruling holding that people generally waive their Fourth Amendment “expectation of privacy” in data collected on them by Internet sites, at least when the sites give some kind of notice (however buried in legalese) that they do collect that data. That means, in this instance, that the government can obtain detailed connection records from Twitter about users associated with Wikileaks without a full-blown Fourth Amendment warrant based on probable cause: A subpoena or a court order based on a far weaker claim of “relevance” to an investigation will suffice.

But this isn’t some shocking new precedent. It’s been the status quo since 1986, when our increasingly outdated electronic privacy laws were written, and arguably for longer than that.

There are plenty of problems with this most recent decision, to be sure. For one, as security researcher Chris Soghoian notes, the court based its opinion on the current Twitter privacy policy, even though the policy in effect at the time the targets of the investigation signed up for the site was significantly more protective. In a way, though, this seems unnecessary: Under the misguided Supreme Court decisions that established our modern “third party doctrine,” contractual promises of privacy don’t matter.

In other words, users are held to “assume the risk” that any third party might turn their information over to the government, effectively waiving their Fourth Amendment rights over that data, even if the third party explicitly promises not to do this. The one reason the privacy policy might be relevant here is that the “third party doctrine” covers information knowingly conveyed to third parties, and while it’s obvious that you “convey” a dialed phone number to the phone company when you make a call (for instance), it might not be as obvious that Web sites you visit are logging your Internet Protocol address. (other hyperlinks in original; but second added)

If “Eternal vigilance is the price of liberty,” said Thomas Jefferson in 1809 [and a bunch of others], who pays attention while you were sleeping? I do, for one.

Defendant’s disavowal of living there as the reason why he couldn’t consent to an entry showed he had no standing. United States v. Howard, 2011 U.S. Dist. LEXIS 67162 (E.D. Tenn. June 21, 2011), R&R 2011 U.S. Dist. LEXIS 69300 (E.D. Tenn. April 7, 2011).

The stop was valid, and defendant consented. United States v. Orozco, 2011 U.S. Dist. LEXIS 66574 (E.D. Mo. March 30, 2011).*

The government’s claim of exigent circumstances to enter to protect a 16 year old girl from allegedly being molested by defendant was misplaced because she was old enough to consent and apparently was. “While the situation about which Littlefield read in the CAD Report was creepy, it was not scary. Unless the Court is prepared to say that consensual sex by a woman who can give consent places the woman in imminent danger of physical harm, the Court cannot say that there is an exigent circumstances when the age gap is so great.” United States v. Christy, 785 F. Supp. 2d 1004 (D. N.M. 2011).*

Police conducted a knock-and-talk after following footprints in the dew covered grass to defendant’s house. He consented to an entry. United States v. Clay, 2011 U.S. Dist. LEXIS 65657 (E.D. Tenn. April 11, 2011).*

Hearsay is admissible to show the basis for an arrest at a suppression hearing. The confrontation clause does not apply to suppression hearings. State v. McKenzie, 2011 Ohio 5851, 2011 Ohio App. LEXIS 4776 (10th Dist. November 10, 2011):

[*P8] Appellant also argues under this assignment of error that the trial court erred when it did not allow him to confront Worthington and Porter at the suppression hearing regarding what prompted their suspicion of illegal activity that promoted the stop of appellant, in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution, which states that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” We disagree with appellant’s contention. The United States Supreme Court has repeatedly distinguished between the scope of a defendant’s right to confrontation in trial and pretrial proceedings. See Pennsylvania v. Ritchie (1987), 480 U.S. 39, 54, 107 S.Ct. 989, 999, 94 L. Ed. 2d 40; State v. Williams (1994), 97 Ohio App.3d 289, 291, 646 N.E.2d 836. The right to confrontation, which includes the right to physically face and cross-examine witnesses, is not a constitutionally compelled rule of pretrial proceedings. See Ritchie at 52-53, 107 S.Ct. at 998-99; see also Raddatz at 679, 100 S.Ct. at 2414; Williams at 291; State v. Saunders, 2d Dist. No. 22621, 2009 Ohio 1273, ¶13 (no denial of right to confrontation at suppression hearing when police officer testified as to the statement of a witness). Thus, appellant’s right to confrontation was not violated when Worthington and Porter did not testify at the suppression hearing. For the foregoing reasons, the trial court did not err when it denied appellant’s motion to suppress, and appellant’s assignment of error is overruled.

A blanket objection to a USMJ R&R in a search claim is unavailing; the objecting party has to be specific as to the objections. United States v. Soderholm, 2011 U.S. Dist. LEXIS 130727 (D. Neb. November 9, 2011):

The Eighth Circuit has held that “even when a magistrate judge is hearing a matter pursuant to his or her limited authority to make a ‘recommended disposition,’ ‘a claimant must present all his claims squarely to the magistrate judge, that is, the first adversarial forum, to preserve them for review.’” … See also Roberts, 222 F.3d at 470 (“[The] purpose of referring cases to a magistrate for recommended disposition would be contravened if parties were allowed to present only selected issues to the magistrate, reserving their full panoply of contentions for the trial court.” … Other courts have found, however, that because 28 U.S.C. § 636(b)(1) allows the district court to “receive further evidence” after a party objects to the magistrate judge’s recommendation, district courts may consider new arguments raised for the first time in an objection. … The Fourth Circuit has gone further, holding that “as part of its obligation to determine de novo any issue to which proper objection is made, a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate [judge].” United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). See also id. at 1118 n.6 (noting that the district court’s obligation to hear all arguments is reinforced when motions to suppress are concerned because such motions are “not one of the pretrial matters that may be reviewed by the district court merely for clear error or plain error”).

Given the law in this circuit, the government’s argument that I should not consider the defendant’s new arguments is well-taken–though it should be noted that the government cites no cases that apply the Eighth Circuit’s rule to new arguments offered in support of a motion to suppress. I shall bypass this issue, however, because I find that I can readily dispose of the defendant’s new arguments on their merits.

The Ninth Circuit denied rehearing en banc in Chism v. Washington State, 10-35085 (9th Cir. August 25, 2011), rehearing denied, op. amended November 7, 2011. The plaintiffs’ credit card information had been stolen and used to acquire child porn. A Franks violation was alleged leading to search warrant for child pornography on their computers, and none was found. They sued under § 1983, and it leads to civil rights liability for the investigators:

This civil rights action under 42 U.S.C. § 1983 arises from an internet child pornography investigation by Washington State Police (WSP) Officers Rachel Gardner and John Sager (“the officers”). As a result of information the officers acquired, Todd Chism became the focus of their investigation. Gardner prepared an affidavit in support of a search warrant application, which Sager reviewed. On the basis of that affidavit, a magistrate judge issued a broad search warrant to search Todd Chism’s home and business office. Relying on the same information contained in Gardner’s affidavit, Deputy Prosecuting Attorney Christian Peters obtained from the same magistrate judge a warrant to arrest Todd for violating Washington’s child pornography laws. A few days later, several WSP officers executed the search and arrest warrants. A WSP detective eventually conducted forensic examinations of the Chisms’ home computer and computers from the Spokane Fire Department, where Todd Chism worked as a firefighter. The investigation did not reveal any evidence of child pornography, and charges were never filed against Todd Chism.

Several months later, Todd and his wife, Nicole Chism, filed this § 1983 action against the State of Washington, the WSP, Detective Gardner, and Sergeant Sager, alleging—among other things not relevant to this appeal—that the officers violated their Fourth and Fourteenth Amendment rights by securing the search and arrest warrants with an affidavit that deliberately or recklessly contained material omissions and false statements. The Chisms and the officers filed cross motions for summary judgment on the issue of qualified immunity as to the constitutional claim. The district court granted the officers’ motion, concluding that the officers’ conduct did not violate a clearly established constitutional right of which a reasonable officer would have known. The Chisms timely appealed.

We reverse the district court’s judgment and remand this case for trial. Viewing the evidence in the light most favorable to the Chisms, we conclude that the Chisms have made a substantial showing of the officers’ deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred. We also conclude that the officers are not entitled to qualified immunity because the Chisms’ right to not be searched and arrested as a result of judicial deception was clearly established at the time Gardner prepared and submitted her affidavit.

Defendant was arrested for driving without a license, and it was not unreasonable to impound the car. The alternative was to leave it blocking gas pumps at a gas station, which cannot be expected. The officer was not obliged to see if there was somebody who could come and get the car. State v. Hubbard, 2011 Tenn. Crim. App. LEXIS 828 (November 9, 2011):

While the officer acknowledged that he did not ask Appellant if there was anyone else who could come and get the vehicle, this Court has held that it is appropriate to impound a vehicle despite the failure of an officer to ask Appellant about an alternative solution when there is no reasonable or plausible alternative such as a passenger at the scene to take possession of the car immediately.

Since the defendant did not send up the video of the stop with the appellate record, the court has to presume that it supported the testimony about it. State v. Carrasco, 2011 Tenn. Crim. App. LEXIS 829 (November 10, 2011)*:

As we have noted, the trial court reviewed the video recording of the stop. The agents testified about the recording, although it has not been transmitted as part of the appellate record. As the appellants, the Defendants were required to prepare a record that conveys a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of the appeal. T.R.A.P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). “In the absence of an adequate record on appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); see also State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). In the present case, we must presume that the video recording supported the trial court’s ruling, and the Defendants are not entitled to relief. In this regard, nothing in the record refutes the trial court’s findings that the weaving justified Agent Long’s stopping the truck.

Defendant was properly strip searched under Bell v. Wolfish after being booked on a DWI arrest when she said nobody would come and get her. A condom was seen protruding from her vagina, and she wouldn’t produce it on request, so they took it finding cocaine. State v. Burks, 2011 Ohio 3365, 2011 Ohio App. LEXIS 2852 (4th Dist. May 13, 2011).*

In this case, there was a hearing over whether the defendant had standing in the business premises as the “manager” or other responsible person. Since the court found that a person with apparent authority consented, the standing question is pretty much moot. The USMJ also found that Minnesota v. Carter also would deny standing since the business was used for illegal purposes, but that is not decided by the USDJ. United States v. Akins, 2011 U.S. Dist. LEXIS 73495 (W.D. Tenn. July 6, 2011).*

Search of defendant’s car was with probable cause, so inventory question is moot. United States v. Frazier, 429 Fed. Appx. 730 (10th Cir. 2011).*

Finding this a “close question” on a Fourth Amendment violation for child protective services taking a child, the defendants are entitled to qualified immunity. The plaintiff in a § 1983 Fourth Amendment case bears the burden of showing that the right is clearly established. Hernandez v. Foster, 657 F.3d 463 (7th Cir. 2011):

The plaintiffs bear the burden of proving that the constitutional right was clearly established. Estate of Escobedo v. Bender, 600 F.3d 770, 779 (7th Cir.), cert. denied sub nom. Martin v. Hanic, 131 S. Ct. 463 (2010). A right is clearly established “when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.'” al-Kidd, 131 S. Ct. at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The plaintiffs need not identify “a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Id.; see also Estate of Escobedo, 600 F.3d at 780 (stating that a party can demonstrate a right was clearly established by identifying “a closely analogous case” or presenting evidence that the defendant’s conduct was “patently violative of the constitutional right”).

After the stop, the officer engaged in 11 minutes of questioning of the defendant without any reasonable suspicion before he ran any computer checks on him. This made the stop an unreasonable detention. United States v. Macias, 658 F.3d 509 (5th Cir. 2011):

Macias argues that Trooper Barragan’s actions subsequent to the stop of the truck exceeded the limits prescribed above. Specifically, Macias contends that before Trooper Barragan ran the computer checks, he engaged in detailed questioning about matters unrelated to Macias’s driver’s license, his proof of insurance, the vehicle registration, or the purpose and itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. We agree.

Nearly eleven minutes passed from the time that Trooper Barragan stopped Macias until he ran the computer checks. During this time, Trooper Barragan questioned Macias and Zillioux extensively about the purpose and itinerary of their trip. Such questions, as discussed, are permissible because they were related in scope to Trooper Barragan’s investigation of the circumstances that caused the stop. …

Defendant was ordered outside of a house to talk to the police, and that was a seizure under the totality of the circumstances. He dropped drugs and was arrested for that. His discarding the drugs was a product of the illegal detention. Jones v. State, 28 A.3d 1046 (Del. 2011):

Case law from other jurisdictions also is instructive. Given the “necessarily imprecise” standard for determining whether an individual has been seized,11 other courts have developed factors to consider when evaluating whether a police encounter amounts to a seizure. For example, in United States v. Mendenhall, the United States Supreme Court explained that four circumstances might indicate a seizure: (1) “the threatening presence of several officers,” (2) “the display of a weapon by an officer,” (3) “some physical touching of the person of the citizen,” or (4) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”12

11 See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988).
12 United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (citing Terry, 392 U.S. at 19 n.16).

In United States v. Scheets, the Seventh Circuit considered the following six factors in its totality-of-the-circumstances analysis: (1) “whether the encounter occurred in a public or private place,” (2) “whether the suspect was informed that he was not under arrest and free to leave,” (3) “whether the suspect consented or refused to talk to the investigating officers,” (4) “whether the investigating officers removed the suspect to another area,” (5) “whether there was physical touching, display of weapons, or other threatening conduct,” and (6) “whether the suspect eventually departed the area without hindrance.”13

13 United States v. Scheets, 188 F.3d 829, 836-37 (7th Cir. 1999) (citing United States v. McCarthur, 6 F.3d 1270, 1276 (7th Cir. 1993)). See also United States v. Withers, 972 F.2d 837, 842 (7th Cir. 1992) (“The factors we consider in determining whether, in the totality of the circumstances, a reasonable person would believe she were free to leave include: whether the encounter occurred in a public or private place; whether the suspect consented or refused to talk to the police; whether the police informed the suspect that she was not under arrest and was free to leave; whether the police removed the suspect to another area; whether the suspect felt capable of refusing to consent to the search; and whether the suspect eventually departs the area without hindrance.”); State v. McGinnis, 290 Kan. 547, 233 P.3d 246, 252 (Kan. 2010) (considering a similar set of factors).

We adopt the Scheets factors here to channel the unavoidable discretion that is part and parcel of our totality of the circumstances inquiry. …

WaPo Op-Ed: Supreme Court’s GPS case asks: How much privacy do we expect? by Jonathan Turley:

In December 1967, the Supreme Court issued what many consider to be one of its greatest and most eloquent decisions, in Katz v. United States. That case, which is celebrated as saving privacy in the United States, articulated the principle that “the Fourth Amendment protects people, not places.” The decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

This past week, a different high court sat to hear a new privacy challenge in Jones v. United States. The issue this time is whether privacy protections are dying in the United States — and whether Katz may be to blame.