PBS’s Frontline last night: Top Secret America: The Hidden Legacy of 9/11 on where our rights went. DVD here.

A patdown finding a hard object permits removal to insure that it is not a weapon where a feel could not tell. United States v. Richardson, 2011 U.S. App. LEXIS 18323 (7th Cir. September 2, 2011):

Richardson does not dispute that Deputy Smythe lawfully initiated a stop and pat-down of Richardson’s person. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Rather, he claims Deputy Smythe’s pat-down became an impermissible exploratory search when Deputy Smythe removed the cocaine base from Richardson’s right pants pocket and inspected it. Richardson’s argument misapplies Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). Richardson focuses on Dickerson’s pronouncement that an officer cannot go beyond a protective pat-down to manipulate an object concealed in a pocket unless “the incriminating character of the object [is] immediately apparent.” 508 U.S. at 379. But that restriction does not apply until the officer concludes that the object at issue is not a weapon. Dickerson, 508 U.S. at 378; see United States v. Muhammad, 604 F.3d 1022, 1026-27 (8th Cir. 2010) (seizure and inspection of object not unlawful under Dickerson because officer was uncertain whether object was a weapon). Deputy Smythe testified that, after the protective patdown, he “wasn’t sure what [the object] was. It was just an unfamiliar lump, [a] hard lump.” Based on this testimony, the district court found Deputy Smythe was unsure whether the hard object in Richardson’s pocket was a weapon. That finding was not clearly erroneous. See United States v. Swann, 149 F.3d 271, 275 (4th Cir. 1998) (deferring to district court’s finding that the officer had not determined whether the object was a weapon when testimony was “entirely ambiguous” as to whether the officer “suspected or did not suspect a weapon”).

The government did not carry its burden of proof of consent where the officers who gained entry by a knock-and-talk could not agree over when consent was given and what its scope was. United States v. Payton, 2011 U.S. Dist. LEXIS 98058 (W.D. Tex. June 8, 2011).*

The officers lacked any reasonable suspicion to detain the defendant, and the motion to suppress is granted. The defendant made the motion to suppress after the jury was empaneled, and the trial judge considered and granted it. Then a mistrial had to be declared, which the court finds manifest necessity for because of its late timing. United States v. Kirkley, 2011 U.S. Dist. LEXIS 98668 (D. Kan. September 1, 2011).*

Defendant was arrested fleeing from a building based on a radio call from another officer that a man fitting his description was heading for the door. Based on the collective knowledge doctrine, the arresting officers had probable cause, not just reasonable suspicion, and the search incident was valid. United States v. Fletcher, 2011 U.S. Dist. LEXIS 98163 (D. Minn. August 15, 2011).*

Even a top cop concedes a right to video arrests–but the street tells a different story bY Jan Ransom in the Philadelphia Daily News

TAMERA MEDLEY begged the police officer to stop slamming her head – over and over – into the hood of a police cruiser.

Thinking they were helping, passers-by Shakir Riley and Melissa Hurling both turned their cellphone video cameras toward the melee that had erupted on Jefferson Street in Wynnefield, they said.

But then the cops turned on them.

Riley had started to walk away when at least five baton-wielding cops followed him, he said, and they beat him, poured a soda on his face and stomped on his phone, destroying the video he had just taken.

Meanwhile, two officers approached Hurling, urged her to leave and, after exchanging a few words, slammed her against a police cruiser, Hurling said. They pulled her by her hair before tossing her into the back of a cop car, she said.

Although it’s legal to record Philadelphia police performing official duties in public, all three were charged with disorderly conduct and related offenses, and officers destroyed Hurling and Riley’s cellphones, erasing any record of Medley’s violent arrest, the pair said.

Charges against Hurling and Riley were dismissed, but Medley was found guilty last month of disorderly conduct, resisting arrest, harassment and related offenses. She was fined $500 but has filed an appeal.

American Prospect: Extreme Measures: Since September 11, the Fourth Amendment has been eroded in ways we do not even know. The scary part is that it’s going to take years to undo the damage:

The abuse of the Constitution that followed September 11, 2001, was neither surprising nor inevitable. It was not a surprise, because it wasn’t the first time in American history—but the sixth, by my count—that fundamental rights had been violated during spasms of fear over national security. It was not inevitable, because prominent voices might have called the country back to its principles. There is no telling whether such appeals would have stood against the tide, but one man’s words did make a difference in the emergency command center at FBI headquarters on Pennsylvania Avenue several hours after the attacks.

The voice belonged to James Ziglar, then commissioner of the Immigration and Naturalization Service, who thinks of himself as a Goldwater Republican. “I’m quite a Bill of Rights kind of guy,” he says. At the FBI that day, he gathered with other senior officials for what he describes as a discussion about doing “some big sweeps” in “any community where there was a large concentration of Arabs, to basically do a door-to-door.”

Ziglar objected: “I was the only guy in the room who raised his hand and said, ‘Wait a minute. We’ve got something called the Fourth Amendment here. We don’t do sweeps in this country. We had a revolution over warrantless searches.’”

NYTimes Editorial: The Truth Behind Stop-and-Frisk:

Judge Shira Scheindlin of Federal District Court in New York made the right call when she refused to dismiss a lawsuit against the New York City Police Department, which alleged that officers use race as a basis for stopping and frisking citizens, rather than reasonable suspicion. The trial will provide an important opportunity to evaluate this increasingly troubling program, which resulted in 600,000 people being stopped on the streets last year alone.

Officers did not coerce defendant into consenting to an entry to arrest him. They knocked in the early morning hours with flashlights, and he answered the door. United States v. Hill, 2011 U.S. Dist. LEXIS 42410 (D. Minn. March 31, 2011).*

The district judge reviewed the transcript of the hearing before the USMJ, and there is no reason not to follow the finding that the defendant’s testimony at the suppression hearing should be discredited, so no further hearing is required. United States v. Frost, 2011 U.S. Dist. LEXIS 42522 (W.D. Tenn. April 18, 2011), R&R 2011 U.S. Dist. LEXIS 42476 (W.D. Tenn. March 14, 2011).*

Plaintiff’s claim that local utilities bombarded her house with EMFs was not a Fourth Amendment claim. Barnett v. Carberry, 420 Fed. Appx. 67 (2d Cir. 2011).*

Applying the rule that courts should decide cases on the narrowest grounds possible, the stop here was justified by the load on defendant’s trailer being too wide, so the validity of the administrative inspection does not have to be decided. Morris v. City of Virginia Beach, 58 Va. App. 173, 707 S.E.2d 479 (2011).*

The district court erred in setting aside a jury verdict for the plaintiff for a Fourth Amendment unreasonable search and arrest claim and a Fourteenth Amendment equal protection claim. The district court’s analysis of the Fourth Amendment in the JNOV was different than the jury instructions. The evidence supported the verdict. Pitts v. Delaware, 646 F.3d 151 (3d Cir. 2011)*:

Moreover, it was error for the Court to rely on Fourth Amendment principles regarding investigatory detentions because the jury was not instructed on that jurisprudence. Even if Spence had an articulable suspicion that Pitts had committed a crime, the jury was informed only of the law regarding probable cause. The jury could have concluded on the evidence that probable cause was lacking; and thus, based on the instructions given, the evidence was sufficient to support Pitts’ claim that Pitts’ detention was unlawful.

With regard to the towing and inventory search of Pitts’ car, Spence conceded at trial that he lacked probable cause to conduct a search of Pitts’ car. Spence testified that he considered the towing necessary to prevent the possibility of another altercation or further damage to Pitts’ car, and conceded that he did not search the car for safety reasons or to look for a gun. The jury, however, could have found that Spence was not credible and could have concluded that Spence unlawfully searched the car in order to search for the gun that Mitchem had accused Pitts of threatening to use. The Court necessarily weighed the evidence and did not view it in the light most favorable to Pitts when it concluded that there was no evidence to support a suggestion of pretext and that Spence’s asserted fear rendered the towing and inventory search reasonable as a matter of law. It was also error for the Court to consider inventory-search jurisprudence in its analysis because the jury was not given an instruction thereon. Based on the instructions given, the evidence was sufficient to support the jury’s verdict, and the District Court erred in concluding otherwise.

A Terry frisk of the defendant was not justified by any facts. It cannot be assumed that just because somebody is around somebody accused of a drug offense that the totality of circumstances should be replaced by that single fact. Commonwealth v. Grahame, 607 Pa. 389, 7 A.3d 810 (2010), revg Commonwealth v. Grahame, 2008 PA Super 73, 947 A.2d 762 (2008):

By her own admission, Officer Russell conducted a protective search of Appellant’s purse based on a generalization that firearms are commonly found in close proximity to illegal drugs. No one from the task force knew if Appellant had a criminal record, and there was no indication that D.W. and Appellant were involved in a common enterprise. Indeed, the police witnessed a single drug transaction, and it occurred outside of Appellant’s presence. Furthermore, upon entering the house, Officer Russell did not detect any unusual behavior or furtive movements on Appellant’s part nor did she observe a suspicious bulge in Appellant’s purse. Since the Commonwealth failed to elicit any facts that supported an objectively reasonable belief that Appellant was armed and dangerous, the Superior Court’s decision cannot be sustained. See Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463, 466 (Pa. 1970) (police officer lacked reasonable suspicion to search defendant for weapons because officer did not possess any background information on defendant, and defendant’s conduct did not convey threat of danger to officer).

[This case slipped by when it was decided. It was found in updating citations.]

Defendant actually did not consent. [One would think from this case that juvenile judges don’t give Fourth Amendment rights to children.] J.W.E. v. State, 58 So. 3d 376 (Fla. 2d DCA 2011)*:

Here, the justification for the search was the consent exception to the warrant requirement. But, as in V.H. v. State, 903 So. 2d 321 (Fla. 2d DCA 2005), the officer’s testimony at J.W.E.’s suppression hearing did not unequivocally establish that J.W.E. consented to the warrantless search. Indeed, the officer’s testimony that J.W.E. answered “yes” when asked “Do you mind if I search you,” tended to establish that J.W.E. did not consent. Because the evidence did not unequivocally establish J.W.E.’s consent, the motion to suppress should have been granted.

Defendant was stopped for no seat belt, and it was discovered that her DL was suspended and there was no insurance card. Under state law, the vehicle was to be impounded, and the officer was not obligated to inquire into whether the teenage passenger could continue driving. People v. Nash, 409 Ill. App. 3d 342, 349 Ill. Dec. 713, 947 N.E.2d 350 (2011).*

For a case where what would normally be reasonable suspicion is found to be probable cause, see United States v. Flores-Manjarez, 421 Fed. Appx. 407 (5th Cir. April 7, 2011)*:

We need not reach the issue of consent because the officer had probable cause to search Flores’s vehicle because of: (1) Flores’s nervousness, which manifested itself in various ways; (2) the fact that Flores came from Laredo, which the officer knew to be a major source city for narcotics; (3) the smell of axle grease, which the officer knew to be a cover odor for narcotics; (4) Flores’s contradictory answers regarding his trip; (5) Flores’s contradictory answers regarding the fingerprints on the car’s trunk; (6) Flores’s evasive answers regarding whether the car contained illegal substances; and (7) Flores-Manjarez’s evasive actions prior to the traffic stop. In light of the circumstances, taken together, and viewing the evidence in the light most favorable to the Government, see Zavala, 541 F.3d at 574, the officer had probable cause to search Flores’s car.

Defendant was neither the sender nor recipient of a FedEx package, so he lacked standing to challenge its search. The search warrant was for two packages identified by their tracking numbers. The fact the packages were not in the exact location described in the warrant at the time of the search was of no constitutional significance because the particularity requirement was satisfied. United States v. Silouangkhoth, 2011 U.S. Dist. LEXIS 43545 (D. Utah April 21, 2011).*

Cleveland PD policy that gives discretion in what is removed from a vehicle for safekeeping and what is left in it does not make the inventory unreasonable, and the inventory is of what is left in the vehicle. United States v. Hughes, 420 Fed. Appx. 533 (6th Cir. April 22, 2011).*

Defense counsel was not ineffective for not better opposing the search of his hotel room on a protective sweep theory rather than search incident. The Sixth Circuit affirmed the conviction on protective sweep, and that is law of the case. Atchley v. United States, 2011 U.S. Dist. LEXIS 43567 (E.D. Tenn. April 21, 2011).*

Orin Kerr on Volokh Conspiracy: Fourth Amendment Rights in Stolen Computers:

A few readers have flagged a new district court decision, Clements-Jeffrey v. City of Springfield, that raises an interesting Fourth Amendment question: When does a person have Fourth Amendment rights in the contents of a stolen computer? A few decisions have held that a person doesn’t have Fourth Amendment rights in the contents of a stolen computer when they know the computer was stolen: That seems correct to me, as the Fourth Amendment requires some legitimate relationship between the person and the space searched before allowing the person to have Fourth Amendment rights there. See, e.g., Minnesota v. Carter. The trickier question raised in Clements-Jeffrey is what result if the person didn’t know the laptop was stolen. Put another way, what is the mental state required to retain Fourth Amendment rights in stolen property?

WaPo: Editorial Board Opinion: GPS tracking should require a court order:

GPS is a valuable tool, and the vast majority of law enforcement officers would probably use it appropriately. But there should be a check against what Judge Alex Kozinski of the California federal appeals court called the possibility of “creepy and un-American” government acts. Requiring a court order before launching a lengthy and intrusive tracking project is not too much to ask.

The Bumpy Legal History of GPS Devices by Stephen Treglia, New York Law Journal, August 30, 2011:

When did people in this country develop a reasonable expectation of privacy over what they do in public? Until recently, at least, such a right did not exist.

. . .

Conclusion

Might all this paranoia over law enforcement GPS tracking be a bit misplaced? When millions of U.S. citizens readily and habitually reveal every minor detail of their daily existence on social networking sites, when probably at least as many citizens’ daily movements are tracked via their smart phones, MP3 players and tablet computers, when super-cookies are able to record and catalogue massive amounts of website visiting information, does anyone really possess a subjective expectation of privacy in their public movements any more, much less a reasonable one?

Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States by Orin S. Kerr forthcoming in Cato Supreme Court Review, from SSRN:

Abstract:

This essay considers how the Supreme Court’s recent limits on remedies for Fourth Amendment violations threatens the future development of Fourth Amendment law. It focuses on two decisions from the October 2010 Supreme Court Term: Camreta v. Greene, 131 S. Ct. 2020 (2011), and Davis v. United States, 131 S.Ct. 2419 (2011). Both Camreta and Davis reflect an optimistic view that Fourth Amendment remedies can be limited without substantially inhibiting the proper development of the law. The essay suggest that development of Fourth Amendment law requires more robust remedies to create cases and controversies and provide incentives to litigate claims. It concludes by considering how the Supreme Court might best foster law-development in a regime of limited Fourth Amendment remedies.

Defendant’s stop and search of his vehicle were based on probable cause, so the vehicle search was valid under the automobile exception. Defendant conflated the state constitutional argument with the Fourth Amendment argument. If one wants the state constitutional issue decided, it needs to be separately addressed both in the trial court and the appellate briefs. State v. Butler, 2011 UT App 281, 2011 Utah App. LEXIS 294 (August 25, 2011):

Because Defendant does not make any separate arguments under the Utah Constitution, we consider his appeal only under the protections afforded by the United States Constitution. See State v. Worwood, 2007 UT 47, ¶¶ 14, 18, 164 P.3d 397 (determining that the greater protections provided by the Utah Constitution will only be addressed if the argument is properly preserved in the trial court and separately briefed on appeal); State v. Despain, 2007 UT App 367, ¶ 12, 173 P.3d 213 (“In the absence of separate and distinct argument under the Utah Constitution, we consider [the d]efendant’s claims only under the Federal Constitution.”).

I’ve read about a dozen cases stating this proposition from around the country, but haven’t mentioned many of them.

The mere fact a defendant had drugs on him alone is no nexus to search the defendant’s house under a search warrant. Thus, the warrant was facially invalid. United States v. Garcia, 2011 U.S. Dist. LEXIS 94838 (N.D. Cal. August 24, 2011):

In effect, the government is looking for a bright-line rule that the police have probable cause to search the house of any person found with any amount of illegal drugs anywhere. This would be a significant extension of the case law, taking it beyond the bounds of what is permitted by the Fourth Amendment. The Ninth Circuit has held that “probable cause that a resident of the location has committed a crime is in itself insufficient to satisfy” the requirement that evidence probably will be found at the locations to be searched. See United States v. Fernandez, 388 F.3d 1199, 1254 (9th Cir. 2004); United States v. Gil, 58 F.3d 1414, 1418 (9th Cir. 1995). Drug dealing and drug using are categorically different crimes. To extend the exception in Fannin and Angulo-Lopez is to eviscerate the rule stated in Fernandez and Gil. See United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970) (explaining that if mere probable cause to arrest a suspect also established probable cause to search the suspect’s home, there would be no reason to distinguish search warrants from arrest warrants). The search warrant in this case was facially invalid.

. . .

The Court has discovered no case in the country that has upheld a search warrant on facts like those in this case. In fact, a number of cases from both federal and state courts, all applying federal constitutional law, have concluded that such warrants are invalid, including cases from two state appellate courts in this circuit. …

Defendants were in a boarded up house which, from all apparent circumstances, was unoccupied, but there as an open window with a car parked outside with a window open at 1:30 a.m. Officers could approach the house, and when defendant came out, a gun was on him in plain view. United States v. Sutherland, 2011 U.S. Dist. LEXIS 95266 (E.D. Mich. August 25, 2011).*

Defendant’s 2255 claiming that defense counsel was ineffective for not filing a motion to suppress was not supported. There was PC for a search warrant and no claim that defendant didn’t consent. United States v. Sanchez, 2011 U.S. Dist. LEXIS 95150 (N.D. Okla. August 24, 2011).*

The search warrants for defendant’s cell phones was quite particular and obviously the search was conducted in good faith. United States v. Ortiz-Aleman, 2011 U.S. Dist. LEXIS 94669 (N.D. Ga. July 20, 2011), adopted sub nom. United States v. Orellana, 2011 U.S. Dist. LEXIS 94773 (N.D. Ga. August 24, 2011).*

Defendant on a wiretap who was outside the United States and was not a U.S. citizen had no Fourth Amendment claim under Verdugo-Urquidez. United States v. Coke, 2011 U.S. Dist. LEXIS 94012 (S.D. N.Y. August 22, 2011):

As an initial matter, Coke concedes that he is not protected by the Fourth Amendment and therefore, recognizes that he cannot seek to suppress the wire interceptions of his telephone calls on that basis. (Def. Court Ord. Mem. of Law at 2, Tr. at 18.) The Supreme Court held in United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), that where a defendant is not a United States citizen, and has no substantial, voluntary attachment to the United States, and the search at issue occurs abroad, “the Fourth Amendment has no application.” In Verdugo-Urquidez, the Court concluded through a textual reading of the Fourth Amendment that the “purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; [and that] it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of U.S. territory.” Id. at 266. Because there is no evidence that Coke had any “substantial, voluntary attachment” to the United States, both the Defense and Prosecution agree that the Fourth Amendment cannot be a basis for suppression of the seized wiretap evidence.

Arrest of a citizen for recording police in public on a cell phone violated clearly established First and Fourth Amendment rights, so no qualified immunity. Glik v. Cunniffee, 10-1764 (1st Cir. August 26, 2011):

Simon Glik was arrested for using his cell phone’s digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts’s wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.

In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik’s constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause. We therefore affirm.