WyomingNews.com: Police take first forced blood draw by Lindsey Erin Kroskob:

Five Cheyenne officers held down a 24-year-old man to obtain a sample after he was spotted driving erratically and refused to comply with a search warrant.

This litigation will be interesting: Holding a man down to draw blood against his will. Reasonable or not?

Defendant was arrested at a casino in Tunica Mississippi by U.S. Marshals on a warrant out of Arizona. They asked the casino about removing his car from the parking lot, and they concurred, so the inventory of the car was valid. The inventory produced a computer, and defendant was known by police to be involved in child pornography so a warrant was obtained for his computer which was [tenuously at best] found to be issued on probable cause. United States v. Vernon, 2011 U.S. Dist. LEXIS 103712 (N.D. Miss. September 14, 2011).*

Defendant’s running a stop sign in a national park was cause for a stop, and it led to probable cause to believe defendant was impaired. United States v. Hamblin, 2011 U.S. Dist. LEXIS 103367 (E.D. Cal. September 12, 2011).*

Defendant’s claim in his 2255 that defense counsel was ineffective for not calling him as a witness at this suppression hearing to rebut the officer was rejected. Defense counsel challenged the witnesses’s credibility, and defendant’s testimony was only cumulative. Liberal v. United States, 2011 U.S. Dist. LEXIS 103526 (S.D. Fla. June 7, 2011).*

Protective sweep of a locked room was permissible. United States v. Hoskins, 2011 U.S. Dist. LEXIS 103445 (E.D. Mich. September 13, 2011):

The government responds that despite the remote possibility that someone may have been inside Defendant’s room, it was not impossible. Locking a person into a room is a repeated phenomena in the annals of criminal law. E.g. United States v. Sanford, 2009 WL 2197373, *1 (M.D. Ala. 2009) (Informant observed that drug dealer kept a woman locked in a room in the house where the dealer lived and sold drugs); United States v. Juarado-Lopez, 338 F. Supp. 2d 246, 253 (D. Mass. 2004) (Drug “mule” was locked in a room and forced to insert packages into her body cavities); McWhorter v. United States, 281 F. 119, 120 (6th Cir. 1922) (Two people locked in a room and regularly given narcotics). It was therefore appropriate for the officers to open the lock on the door and enter Defendant’s room to ensure that the room was “clear” of any person who might threaten the safety of others present or otherwise be engaged in criminal conduct. That conduct could well include destroying evidence by a variety of means, including by consuming it. There is nothing to suggest that the items subsequently seized from Defendant’s room were observed during the protective sweep, and these items were not used to demonstrate probable cause in the affidavit for the search warrant. … Defendant’s motion to suppress the evidence that was seized from his room will be denied.

Probation officers with sheriff’s deputies searched defendant’s workplace and his adjoining apartment in excess of his probation condition. The government’s motion to reconsider is denied. United States v. Garcia, 2011 U.S. Dist. LEXIS 100499 (W.D. Wash. September 6, 2011).*

The officer told defendant to remove his hands from his pockets, and bags of drugs fell out. The directive was without reasonable suspicion, and the drugs are suppressed. People v Pinckney, 2011 NY Slip Op 51649, 2011 N.Y. Misc. LEXIS 4294 (Bronx Co. September 9, 2011).*

Defendant was subjected to a patdown because of his furtive movements and being known to always carry a gun, and the officer felt what clearly was a meth pipe. The search of the car was valid as a search incident or under the automobile exception. United States v. Chavez, 2011 U.S. Dist. LEXIS 100855 (W.D. Mo. August 25, 2011).*

Just because defendant used fictitious names to set up cell phone accounts did not ipso facto deprive him of standing to contest a seizure and search of the phones. They were seized at the time of arrest, and they were lawfully searched. United States v. Moncur, 2011 U.S. Dist. LEXIS 101475 (S.D. Fla. July 28, 2011)*; United States v. Martin, 2011 U.S. Dist. LEXIS 101536 (S.D. Fla. July 28, 2011).*

Answering a telephone call during execution of a search warrant is permissible if the use of a telephone is related to the crime. Here, the affidavit for the search warrant related to use of telephones, so it was not improper to answer the phone. Here, the call was from the codefendant in jail. United States v. Greene, 2011 U.S. Dist. LEXIS 101235 (D. Alaska September 7, 2011):

Greene argues that Dectective Adair was not authorized to answer the phone during the execution of the search warrant. Indeed, the Search Warrant does not explicitly allow the officers to answer any incoming phone calls. Explicit authority to answer phone calls is not necessarily required, however, as long as the calls are reasonably related to the purpose of the search. In United States v. Gallo, 659 F.2d 110 (9th Cir. 1981), the Ninth Circuit held that it was proper when the searching agents answered telephone calls while executing a search warrant related to a suspected illegal gambling business. In that case, the warrant did not specifically authorize the agents to intercept incoming phone calls, but the Ninth Circuit concluded that the interceptions were nonetheless valid because the telephone was a highly necessary accessory to the suspected illegal business and thus any incoming phone call would have been reasonably related to the purposes of the search and would have constituted evidence of such a crime. Id. at 114. In United States v. Ordonez, 722 F.2d 530 (9th Cir. 1983), amended on other grounds by 737 F.2d 793 (9th Cir. 1984), the Ninth Circuit again held that the officers’ interception of incoming phone calls during the execution of a search warrant, while not specifically authorized by the search warrant, was nonetheless reasonable and within the scope of a warrant when the warrant made clear that the telephone was highly necessary to an unlawful drug organization operating out of a private residence. Id. at 541-42. Based on these two cases, agents can intercept telephone calls when legitimately searching pursuant to a warrant if the calls are within the apparent scope of the warrant.

In this case, phone calls are discussed and contemplated as part of the business in the search warrant application. The affidavit supporting the search warrant details phone numbers that were used as part of the suspected prostitution business. It describes various internet advertisements and how Greene’s phone numbers were the listed numbers on those advertisements. The Search Warrant also describes the various recorded phone conversations that took place between Greene and Mujahid while Mujahid was in jail where the two men allegedly discuss prostitutes and the prostitution business. Based on this information in the warrant, incoming phone calls are reasonably within the scope of the warrant. The items authorized for seizure on Attachment B were not exclusive lists, as the various paragraphs in Attachement B include the language “including but not limited to” before detailing the specific items authorized for seizure. The agents were authorized to seize evidence related to the suspected prostitution business and based on the affidavit, phone calls were a necessary part of running such a business. Phone calls were also being used by the men, according to the affidavit, to continue to manage the business while Mujahid was in jail. Thus, this Court finds that Detective Adair was not outside the scope of the warrant when he intercepted the phone call from Evercom on March 26, 2009 and heard that Mujahid was calling Greene’s phone.

Defendant stored a closed black bag at the house of another, and he showed a reasonable expectation of privacy in it. The investigation was for racketeering, and the warrant [somehow] limited officers to searching for evidence of that: “Thus, in this case, the search warrants on their face limit the agents to seizing evidence of racketeering related to commercial sex acts and prostitution. It so happens that evidence of this type of crime is broad-reaching but that does not mean the warrant lacks particularity. The specific items of evidence authorized for seizure are not vague, especially given the nature of the investigation and the type of evidence that would be involved.” Electronic devices were sought, too, and they were shown to be instrumentalities of the crime. United States v. Mujahid, 2011 U.S. Dist. LEXIS 101239 (D. Alaska September 7, 2011)*:

Nothing in the record demonstrates that the agents in fact observed and seized evidence from the computers and storage devices that was outside the scope of the warrant upon their initial search. Even if they had, that does not require the Court to suppress all evidence obtained from the search of Greene’s home or his computers, just those items outside the scope. Tamura, 694 F.2d at 597. And, in this case, the Court does not have anything on the record to delineate what specific evidence was taken from the computers outside of the scope of the warrant. A general assertion that all tax documents should be suppressed is not specific enough, given the record shows some tax documents were seized in paper form and given that nothing on the record demonstrates what documents were alleged to have been seized from the computers. Thus, even if the Court thought the search was too broad and resulted in seizure of items outside of the scope of the warrant, which it does not, it could not issue a blanket ruling that all tax evidence needs to be suppressed. The Court would need more specific information.

WaPo: Supreme Court is asked about jails’ blanket strip-search policies by Robert Barnes on the Florence case:

NEWARK — Almost everyone can agree that what happened to Albert Florence in 2005 sounds shocking.

A New Jersey state trooper pulled over their car as Florence and his family were on their way to his mother-in-law’s to celebrate their new home. He was handcuffed and arrested in front of his distraught, pregnant wife and young son.

He spent seven days in jail because of a warrant that said, mistakenly, he was wanted for failure to pay a court fine. In fact, he carried proof that the fine had been paid years earlier.

And he was strip-searched twice, the humiliation that he says most remains with him six years later.

HuffPo: A Decade After 9/11, Police Departments Are Increasingly Militarized by Radley Balko:

New York magazine reported some telling figures last month on how delayed-notice search warrants — also known as “sneak-and-peek” warrants — have been used in recent years. Though passed with the PATRIOT Act and justified as a much-needed weapon in the war on terrorism, the sneak-and-peek was used in a terror investigation just 15 times between 2006 and 2009. In drug investigations, however, it was used more than 1,600 times during the same period.

It’s a familiar storyline. In the 10 years since the terror attacks of September 11, 2001, the government has claimed a number of new policing powers in the name of protecting the country from terrorism, often at the expense of civil liberties. But once claimed, those powers are overwhelmingly used in the war on drugs. Nowhere is this more clear than in the continuing militarization of America’s police departments.

The officer stopped defendant on suspicion of DUI for seriously weaving and almost going into the ditch. However, the two minute video of defendant’s driving in evidence did not show defendant crossing any lines or almost going into the ditch, and that’s all the evidence the court had, so the stop was without reasonable suspicion. State v. Dexter, 2011 Iowa App. LEXIS 915 (September 8, 2011)*:

In our case we have nothing more than the videotape of Dexter’s driving to supply reasonable suspicion. Without the officer’s testimony to provide context, we are unable to draw inferences from the early morning hour or the other conditions present at the time of the stop. Based solely on the videotape, we find the intra-lane weaving, without more, insufficient to raise reasonable suspicion.

Defendant was a high school senior accused of sex with a minor. The school issued a planner to all students which they all were to keep. He left his in the library visible to all when he went to the bathroom. On the cover was a marker drawing of a penis and testicles which the librarian found objectionable in public. It was confiscated. Inside was a list of girls and apparently the name of the girl he was accused of having sex with was on the list. The planner was not illegally seized and searched under T.L.O. State v. Benjegerdes, 2011 Iowa App. LEXIS 883 (September 8, 2011).*

Defendant’s stop was justified for failing to signal, and that led to a DUI arrest. State v. Whitson, 2011 Iowa App. LEXIS 895 (September 8, 2011).*

Defendant was a house guest of another and he validly consented to a search of the premises, which was used against him at trial. His defense that he could not consent as to himself was rejected. State v. Bennett, 2011 Iowa App. LEXIS 887 (September 8, 2011).*

HuffPo: A Decade After 9/11: Time to Choose to be America Again? by Robin Koerner:

Since 9-11, it seems that the American Left and the American Right have agreed on something of profound importance: we’re scared.

The politics of the last decade have been the politics of fear.

…

A few years ago, a friend of mine returned from a tour in Iraq as a proud American soldier to be required at Seattle airport to remove his shoes and equipment and be screened in the full fashion. The treatment shocked him as it was his first encounter with it and gave the lie to what he believed was his purpose a day earlier on the streets of Baghdad. Simply, how could he have been fighting over there to protect American liberties and values if they were being compromised away with so little fight at home?

The rest of us might ask how we so easily take away the fourth amendment right of that soldier, who a day earlier had put his life on the line for our fourth amendment (and other) right(s). …

A small quantity of marijuana in the passenger compartment is not reason to search the trunk. More is required. Here, defendant’s actions provided it. State v. Griffith, 2011 Ohio 4476, 2011 Ohio App. LEXIS 3708 (2d Dist. September 2, 2011):

[*P20] The Fourth Amendment limits searches to places where evidence of criminal activity is likely to be found. Farris stands for the proposition that the odor of burnt marijuana in a vehicle’s passenger compartment, standing alone, doesn’t present a likelihood that the vehicle’s trunk contains marijuana. The point of distinction is whether the character or nature of drugs found “in plain view” (or smell) in the passenger compartment presents a likelihood that the vehicle’s trunk contains drugs or other contraband, such that a search of the trunk is justified by the automobile exception to the warrant requirement.

[*P21] In Farris, “[n]o other factors justifying a search beyond the passenger compartment were present.” Farris identified one of those other potential factors to include “contraband within the passenger compartment.” That precise factor was present here. In addition, the officer first saw Defendant in a parking lot which, in the officer’s experience, has seen “an increase in drug activity.” (T. 9). Coupled with that, Defendant’s pattern of driving after he saw the officer was evasive, possibly suggesting that he had reason to avoid contact with the officer. California v. Hodari D. (1991) ….

NTYimes: Court Case Asks if ‘Big Brother’ Is Spelled GPS by Adam Liptik:

The precedent is novel. More precisely, the precedent is a novel.

In a series of rulings on the use of satellites and cellphones to track criminal suspects, judges around the country have been citing George Orwell’s “1984” to sound an alarm. They say the Fourth Amendment’s promise of protection from government invasion of privacy is in danger of being replaced by the futuristic surveillance state Orwell described.

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

I did a Westlaw search, and “Orwellian” appears in 531 cases.

NYT: Civil Liberties Today by Adam Liptik:

Criminal law changed surprisingly little after the attacks. How law was enforced is another matter

——

There is a place for alarmism when threats to civil liberties are concerned. Too much worry about our freedoms is better than too little, particularly in the face of a government shrouded in wartime secrecy after the Sept. 11 attacks.

But there is also a place, a decade later, for sober reflection. By historic standards, the domestic legal response to 9/11 gave rise to civil liberties tremors, not earthquakes. And even those changes were largely a result of reordered law enforcement priorities rather than fundamental shifts in the law.

Consider the USA Patriot Act, which was short for this Orwellian mouthful: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The law, more than 300 pages long, sailed through Congress seven weeks after the attacks with scant dissent. It quickly became a sort of shorthand for government abuse and overreaching.

The Patriot Act undeniably expanded the government’s surveillance powers and the scope of some criminal laws. But this was, in truth, tinkering at the margins and nothing compared with the responses of other developed democracies, where preventive detention and limitations on subversive speech became commonplace.

Defendant’s tractor trailer was first subjected to a dog sniff a border crossing. When the dog alerted, they x-rayed the cab of the truck with a backscatter device, revealing probable packages of drugs, which were found. When the defendants were arrested, they were relieved of their property, and a cell phone was taken from one. The phone was searched while he was locked up, and pictures of the marijuana were found on the phone. The search incident of the cell phone was valid under Fifth Circuit precedent. [The cell phone was not discussed as being searched under the border exception.] United States v. Rodriguez, 2011 U.S. Dist. LEXIS 100433 (S.D. Tex. September 6, 2011).*

Defendant’s car made a u-turn just before a border checkpoint in Texas. The car didn’t belong to any of the locals. When stopped by the Border Patrol the passengers and their backpack looked like they’d been walking in the brush. The stop was with reasonable suspicion and ripened as the facts became known. United States v. Gamez, 2011 U.S. Dist. LEXIS 100307 (S.D. Tex. September 6, 2011).*

Defendant’s sister clearly was trying to aid law enforcement in arresting defendant, but she did it all on her own without any direction from law enforcement, so she was not an agent of the police. United States v. Strange, 2011 U.S. Dist. LEXIS 100247 (W.D. Mo. April 26, 2011).*

Defendant lived in an apartment in a public housing complex, and the police came allegedly to investigate the possession of a dog without having paid a pet deposit. The police came in, saw the dog, and allegedly noticed ammunition in the kitchen in plain view. Suspecting that the ammunition might be related to a recent homicide, they called in but found that ammunition was not the same caliber. The finding of ammunition led them to asking about a gun, which defendant at first denied, then they found one in a mattress box springs. Defendant was charged with being a felon in possession. The dog complaint was found to be a pretext for the entry to investigate defendant’s alleged connection to a murder, and the consent was not valid because defendant would not have been free to leave. The officers did nothing to investigate the dog complaint. United States v. Joshua, 2011 U.S. Dist. LEXIS 99676 (M.D. La. September 6, 2011):

The Court also received conflicting testimony from the officers and Ms. Davis as to the length of the time that the officers remained in Ms. Davis’ apartment. Officer Taylor estimated that the total length of encounter was 20 to 25 minutes. Similarly, Corporal Freeman estimated the time period as ranging from 15 to 20 minutes. Ms. Davis, however, testified that the officers remained at the apartment for 45 minutes to an hour. Regardless of the actual length of the time that the police remained in the apartment, on cross-examination, Lieutenant Lee testified that the length of time that the officers spent in speaking to Ms. Davis about the dog was much shorter than the period of time that they questioned the defendant about the ammunition and the possible presence of a gun. The incommensurate amount of time which the police spent addressing the matter for which they were allegedly dispatched leads the Court to conclude that the pet deposit investigation was merely a pretext for the more serious search for evidence of a homicide.

Video surveillance of defendant’s yard from a camera placed on a utility pole where the recordings were watched for hours a day did not violate defendant’s Fourth Amendment rights or any reasonable expectation of privacy because the fence could be seen through. United States v. Anderson-Bagshaw, 2011 U.S. Dist. LEXIS 100000 (N.D. Ohio September 6, 2011):

The video evidence obtained here did not violate Defendant Bagshaw’s Fourth Amendment rights. First, the Defendant did not manifest any subjective expectation of privacy. Where defendants have taken steps to create a private zone within the curtilage of a residence, courts are willing to deem utility-pole surveillance a search within the meaning of the Fourth Amendment. United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987) (defendants manifested a subjective expectation of privacy by erecting a ten-foot-high metal fence). Here, however, the backyard of the Bagshaw residence was entirely open to observation from adjacent properties, and the wire-mesh alpaca fence neither hampered these views nor manifests any subjective expectation of privacy.

Moreover, any subjective expectation of privacy Defendant Bagshaw may have had in her open backyard would have been unreasonable. The Supreme Court has expressly rejected an invitation to create “a rule of constitutional dimensions” that backyard conduct “will not be observed by a passing aircraft-or by a power company repair mechanic on a pole overlooking the yard.” California v. Ciraolo, 476 U.S. 207, 214, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). Those are precisely the circumstances presented here, where the view afforded by the United States’ surveillance camera is identical to the view available to the power company’s employee responsible for installing it.

ACLU: Pass a Drug Test Before You Can Pass a Class:

This week, a college in Missouri broke the law and violated the Fourth Amendment rights of its students. Linn State Technical College became the first public institution of higher learning to implement mandatory drug testing of all new students, as well as those returning from extended leaves of absence.

What a way to welcome back the student body.

Keep in mind that we are talking about college students who have done nothing to arouse suspicion of drug use. In fact, the only thing they are guilty of is enrolling at Linn State. The ironic part is that the school has stated that they don’t believe they have a higher rate of drug use than students at any other college.

I installed a new server at work two months ago, and settings on all computers were erased and had to be reset. The computer with the template program for this website wasn’t there, and it didn’t get reset until last night because I’ve just been too busy with my day job. It is fixed today, as are the broken links in the state courts page.

I can edit the content, even from a cell phone, but the template requires a specific program, and I don’t keep it on my main laptop because it has a solid state hard drive which is small to make the computer light.

Thus, even the cert grant in Jones wasn’t put there until today. Sorry about that.

NBC Miami: ACLU Files Suit Over Welfare Drug Tests / Group challenges Florida law that requires testing for welfare applicants by Brian Hamacher:

The American Civil Liberties Union of Florida has filed a lawsuit challenging a new state law that requires welfare recipients to undergo drug testing.

The lawsuit was filed Tuesday in federal court on behalf of 35-year-old Orlando resident Luis Lebron, a Navy veteran and single father who applied for assistance in July to support his 4-year-old son, the ACLU said in a statement issued Wednesday.

“He meets all the criteria for assistance but has refused to waive his Fourth Amendment rights against unreasonable search and seizure and submit to the newly required drug test,” the statement said.

In an FOIA case, the ACLU sued for disclosure of cases involving cell phone tracking data because it was practically impossible to gather the information without it. The D.C. Circuit held the information was subject to disclosure because the privacy interest in the information was low. ACLU v. DOJ, 10-5159 (D.C. Cir. September 6, 2011):

On the other side of the balance, we find a significant public interest in disclosure, something altogether absent in Reporters Committee. Because the disclosure of private citizens’ criminal histories “reveals little or nothing about [the] agency’s own conduct,” and because that was all that was at issue in Reporters Committee, the “public interest in disclosure [was] at its nadir” in that case. Reporters Comm., 489 U.S. at 773, 780. By contrast, as we discuss below, the disclosure of prosecutions in which the defendants were subject to warrantless cell phone tracking, and then were convicted or pled guilty, would shed light on government conduct. Accordingly, it falls within FOIA’s scope because it advances “the citizens’ right to be informed about what their government is up to.” Reporters Comm., 489 U.S. at 773 (internal quotation marks omitted).

1. The use of and justification for warrantless cell phone tracking is a topic of considerable public interest: it has received widespread media attention18 and has been a focus of inquiry in several congressional hearings considering, among other things, whether the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986), should be revised either to limit or to facilitate the practice. Courts are divided as to whether the government must show probable cause before it can obtain cell phone location data, as well as on related questions regarding warrantless GPS surveillance.

The Supreme Court has recently granted certiorari to address the GPS issue. See United States v. Jones, 2011 WL 1456728 (June 27, 2011), granting cert. to Maynard, 615 F.3d 544. The disclosure sought by the plaintiffs would inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool. It would, for example, provide information about the kinds of crimes the government uses cell phone tracking data to investigate. As the plaintiffs note, with respect to wiretapping Congress has balanced privacy interests with law enforcement needs by permitting the government to use that technique for only the more serious offenses, see 18 U.S.C. § 2516, and the plaintiffs (and others) may decide to argue for similar legislation to govern cell phone tracking. Disclosure would also provide information regarding how often prosecutions against people who have been tracked are successful, thus shedding some light on the efficacy of the technique and whether pursuing it is worthwhile in light of the privacy implications. Information from suppression hearings in these cases could provide further insight regarding the efficacy of the technique by revealing whether courts suppress its fruits, and would disclose the standard or standards the government uses to justify warrantless tracking. Information from suppression hearings would also provide facts regarding the duration of tracking and the quality of tracking data, facts that would inform the public discussion concerning the intrusiveness of this investigative tool.

. . .

Nor are we persuaded by the government’s contention that the interest in informing the public discussion is deficient because the plaintiffs have insufficient evidence that disclosure will show government wrongdoing. Whether the government’s tracking policy is legal or illegal, proper or improper, is irrelevant to this case. It is true that, where “the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure.” Favish, 541 U.S. at 174. But the plaintiffs are not (or at least not only) seeking to show that the government’s tracking policy is legally improper,22 but rather to show what that policy is and how effective or intrusive it is. “[M]atters of substantive law enforcement policy … are properly the subject of public concern,” whether or not the policy in question is lawful. Reporters Comm., 489 U.S. at 766 n.18.

Blog of the Legal Times here.