False representations by defendant’s wife, who was secretly working with the police, that if he did not consent, she was going to jail, which was false, vitiated defendant’s consent. United States v. Strange, 2011 U.S. Dist. LEXIS 94094 (W.D. Mo. August 23, 2011):

This Court further finds that the United States has not met its burden of proving beyond a preponderance of evidence that Paul Strange voluntarily consented to a search of his house. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The record demonstrates that Vikki Strange falsely informed Paul Strange, within hearing of police, that police would take Vikki Strange and her mother (also Paul Strange’s mother) to jail if Paul Strange did not consent to the search. Where, as here, a suspect consents to a search in reliance upon promises or misrepresentations made by the police (or their agents), that weighs against a finding of voluntariness. See United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990). The United States has failed to produce convincing evidence that this misrepresentation did not lead to Paul Strange’s consent, or that this consent was, in its totality, voluntary.

“Do what he wanted to do” was consent under the circumstances. United States v. Kale, 2011 U.S. Dist. LEXIS 94342 (S.D. Fla. February 26, 2011), adopted 2011 U.S. Dist. LEXIS 93966 (S.D. Fla. August 23, 2011).

WSTP in St. Pete just figured out that Federal judges have ruled testing welfare recipients for drugs violates 4th Amendment rights, noting that 1500 Florida welfare recipients have been tested thus far under the new regime.

Wednesday, 10News looked in to questions of whether it’s saving the state money or costing more. Tonight, after reviewing Federal Court cases, we’ve learned Florida’s drug testing laws could be violating your constitutional rights!

Since July, nearly 1,500 Floridians have taken drug tests to continue receiving welfare.

Governor Rick Scott stands behind it, but federal judges have ruled laws like this violate the U.S. Constitution.

And they are just now figuring this out? Apparently the Fourth Amendment is a well kept secret to nonlawyers. And why is the testing still going on? Why hasn’t it been declared unconstitutional?

Franks violation leading to search warrant for child pornography, finding none, leads to civil rights liability for the investigators. Chism v. Washington State, 10-35085 (9th Cir. August 25, 2011):

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.3 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.

WaPo opinions: Why are we subverting the Constitution in the name of security? by Thomas Drake, Thursday, August 25:

The Justice Department’s high-profile Espionage Act case against me collapsed on July 15, with all 10 felony charges dropped, when I was sentenced to community service after entering into a plea agreement for a minor misdemeanor. During the sentencing hearing, the judge clearly set the tone for holding the executive branch of our government accountable. He expounded on the judicial branch’s role as final arbiter of the law, while noting that the basis for the American Revolution was British tyranny in the colonial era.

Over more than a year, my case became a disturbing illustration of “off the books,” irresponsible government behavior that is increasingly alien to the Constitution. The government’s penchant since Sept. 11, 2001, for operating in secrecy and hiding behind an executive branch “state secrets” doctrine has damaged our long-term national security and national character. It has, by sacrificing Americans’ general welfare and civil liberties, given rise to a persistent military-industrial-intelligence­con­gressional surveillance complex.

Cellphones Searched Without a Warrant in Some States by Krystina Steffen in Good Practice writer, August 24, 2011:

States have laws that must be applied when police search a car or a home, including obtaining a warrant to legally search these places. But with new lawsuits emerging in cases where police are searching and confiscating cellphones, it brings up a new topic for debate. Do the police need to have a warrant before looking at the data on your cellphone should you be stopped for a traffic violation or when they visit your home?

Law enforcement agencies say that cellphone data is not a private matter. People are willing to show where they’ve checked in on their Facebook wall, post pictures on Twitter of their night out, and download apps to locate their nearest friend, event, or restaurant nearby. So if police find incriminating information on a cellphone when a driver is stopped for going over the speed limit, for example, the authorities say there is one less potential criminal on the loose and the data was worth going after. Federal investigators also use cell site location information (CSLI) and cellphone data to pinpoint who did a crime in a particular area.

The affidavit for the search warrant was based on probable cause which included information from sales to CIs and the fact defendant had a huge amount of cash, just bought a big house, and had no apparent source of income. United States v. Shirley, 2011 U.S. Dist. LEXIS 93517 (N.D. Ga. July 7, 2011), adopted 2011 U.S. Dist. LEXIS 93505 (N.D. Ga. August 22, 2011)*:

Considering the totality of the circumstances in this case, the affidavit provided the issuing judge with sufficient probable cause to believe that contraband or evidence of Shirley’s narcotics trafficking would be found at Shirley’s recently purchased residence. First, the affidavit clearly established probable cause that Shirley was engaged in narcotics trafficking. He sold trafficking amounts of cocaine on three occasions to CS#2 over a short period time. In addition, during this same period of time, Shirley did not have verifiable lawful employment, and yet he purchased a residence valued at over a half a million dollars and drove expensive automobiles. See United States v. Butler, 102 F.3d 1191, 1198 (11th Cir. 1997) (concluding that totality of circumstances, including analysis of defendant’s finances showing a large amount of unexplained wealth, amounted to probable cause to issue search warrant); see also United States v. Edwards, 885 F.2d 377, 390 (7th Cir. 1989) (stating in a forfeiture case that “where a defendant’s verifiable income cannot possibly account for the level of wealth displayed and where there is strong evidence that the defendant is a drug trafficker, then there is probable cause to believe that the wealth is either a direct product of the illicit activity or that it is traceable to the activity as proceeds”).

From Fargo-Grand Forks: Drug Tests Before Getting Welfare gaining impetus:

While it is getting a cool reception in North Dakota and Minnesota, a growing number of states are taking action to mandate drug tests for welfare applicants.

From CNN: Saying it is “unfair for Florida taxpayers to subsidize drug addiction,” Gov. Rick Scott in June signed legislation requiring adults applying for welfare assistance to undergo drug screening.

“It’s the right thing for taxpayers,” Scott said after signing the measure. “It’s the right thing for citizens of this state that need public assistance. We don’t want to waste tax dollars. And also, we want to give people an incentive to not use drugs.”

Missouri also enacted a law this year mandating drug tests for welfare applicants. A federal court declared a similar law in Michigan unconstitutional in 2003. But the idea is catching on, as other states including Kansas, West Virginia, Kentucky and Illinois, consider their own versions of the policy.

A knock-and-talk that included three armed SWAT officers was inherently coercive. Defendant opened the door, saw them, and stepped back. The officers came in. If that was implied consent, it was coerced by the nature of the knock-and-talk. United States v. Serabia-Ferrel, 2011 U.S. Dist. LEXIS 92040 (D. Minn. July 8, 2011), adopted 2011 U.S. Dist. LEXIS 92123 (D. Minn. August 17, 2011).

Officers making a controlled delivery in Florida from a stop in Texas had exigent circumstances for an entry because of the possibility of destruction of evidence. There was also a question of consent found by the district court as an alternative ground that defendant failed to appeal. United States v. Gutierrez, 2011 U.S. App. LEXIS 17088 (11th Cir. August 16, 2011) (unpublished):

… Given the agents’ fear of counter-surveillance and their inability to view the truck or the goings-on in the house, their concern that Garcia Gutierrez or his co-conspirators inside the house could be in the process of destroying the narcotics evidence was an objectively reasonable one. Because the agents had both probable cause and exigent circumstances, the district court did not err in denying the motion to suppress either the physical evidence discovered in the house or the statements that Garcia Gutierrez made to law enforcement.

Whether a TSA screening search was a part of an independent police investigation or TSA acting on its own apparently surprised the parties trying to narrow the issues, and further record development is necessary. United States v. Rosales, 2011 U.S. Dist. LEXIS 91635 (D. Minn. August 16, 2011).*

The right to compulsory production of the searching officer’s personnel file that was specific only for potential impeachment material would be enforced under United States v. Nixon, Rule 17(c), and Colorado’s privacy standards (People v. Spykstra, 234 P.3d 662, 670 (Colo. 2010)). United States v. Neal, 2011 U.S. Dist. LEXIS 92151 (D. Colo. August 18, 2011):

Though Defendant does not refer to specific documents from the Officers’ personnel files, his request is limited to the topics of “work history and training, complaints against the individual officers, disciplinary actions, both pending and already adjudicated, notes, records and reports, commendations.” … This shows that Defendant has attempted to limit the evidence sought to be produced to those subjects most likely to yield impeachment material. Without having seen the personnel files, the Court cannot imagine how Defendant could be more specific.

Heartland Institute: California Warrantless Search Bill May Violate Fourth Amendment:

California lawmakers are attempting to stem the rise in counterfeit compact and digital video discs by proposing a law that would allow warrantless searches of disc manufacturing plants. SB 550, however, has provoked concerns it violates provisions in the Fourth Amendment of the U.S. Constitution, which prohibits warrantless search and seizures.

State Senator Alex Padilla (D-Pacoima) introduced SB 550, a bill that would grant authority for law enforcement officers who specialize in intellectual property to enter disc manufacturing plants without a warrant and conduct routine inspections to ensure plants are in compliance with state piracy laws. The bill would also allow enforcement officials to take a sample of four discs from each plant to create a data base for comparison of discs seized in the future.

Heavily regulated industry? Hardly. The bill is unconstitutional.

OzarksFirst.com: Former Missouri Sheriff Admits to Exploiting Women:

The now-former sheriff of Worth County, Missouri could find himself spending time behind bars after pleading guilty to federal charges he used his position to exploit women.

The Justice Department said today Neal Wayne “Bear” Groom has admitted to having violated the Fourth Amendment rule against unreasonable seizures when he coerced eight women to expose parts of their bodies to him.

[I couldn’t find the press release on the DoJ website.]

NPR: Air Force Eyes Artificial Birds, Bugs That Can Spy by Noah Adams:

“These little tiny [unmanned aerial vehicles] are great for surveillance, or looking around, or collecting data that way, but they’re very short on battery power.”

–Steve Ross, Ph.D. candidate at the Air Force Institute of Technology, at Wright-Patterson.

During a traffic stop, the question “is there anything illegal in your car?” is not subject to Miranda. United States v. Pittman, 2011 U.S. Dist. LEXIS 86457 (M.D. Tenn. August 4, 2011).*

Defendant ordered out of his car was not seized when he was “asked” to get out of his car and provide ID. He was still free to leave. [Oh, really?] United States v. Hernandez-Sanchez, 2011 U.S. Dist. LEXIS 86498 (W.D. N.C. August 4, 2011),* R&R 2011 U.S. Dist. LEXIS 89301 (E.D. N.C. July 7, 2011)*:

In the circumstances presented here, the court cannot conclude that defendant was “seized” when Agent Padian parked behind him or when he was asked to exit his vehicle and provide his identification. At that time, there was only one unmarked police vehicle and two plainclothes officers present on the large lot. Neither officer had his service weapon visible, and Agent Padian did not activate his blue lights when pulling into the lot. There is no indication that Agent Padian’s interaction with defendant was unpleasant, or that Agent Padian used a brusque or demanding tone of voice, or that he touched or physically detained defendant in any way. Indeed, Agent Padian’s interaction with defendant was quite brief. Finally, there was nothing improper about Agent Padian’s request that defendant step out his parked car and provide identification. See Florida v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (noting that it is “no doubt permissible” to ask to see and examine an individual’s driver’s license); cf. Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (noting the “inordinate risk confronting an officer as he approaches a person seated in an automobile”). These facts suggest that a reasonable person in defendant’s situation would have felt free to terminate the encounter with Agent Padian at that time.

Defendant invoked her right to remain silent. Asking for consent after that did not violate the Fifth Amendment and Miranda. United States v. Ignacio-Lorenzo, 2011 U.S. Dist. LEXIS 89780 (D. Neb. July 14, 2011):

While Ignacio-Lorenzo invoked her right to remain silent, Agent Farris and Officer Burns did not violate that right when they asked her to consent to a locker search. “The [Fifth Amendment] privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761 (1966). “A consent to search is not a self-incriminating statement; it is not itself evidence of a testimonial and communicative nature.” United States v. Hidalgo, 7 F.3d 1566, 1568 (11th Cir. 1993) (quoting Smith v. Wainwright, 581 F.2d 1149, 1152 (5th Cir. 1976)). Therefore, requesting to search is not interrogation within meaning of Miranda. Cody v. Solem, 755 F.2d 1323 (8th Cir. 1985;) see United States v. Shlater, 85 F.3d 1251 (7th Cir. 1996;) United States v. Rodriguez-Garcia, 983 F.2d 1563 (10th Cir. 1993). Agent Farris and Officer Burns did not violate Ignacio-Lorenzo’s right to remain silent by asking her to consent to a locker search. See Hidalgo, 7 F.3d at 1568 (noting while consent led to introduction of incriminating physical evidence, there was no incriminating statement obtained after invoking the right to silence).

Dumping property in flight from the police, at least without an attempt to conceal it, is an abandonment. United States v. Herrera, 2011 U.S. Dist. LEXIS 89783 (D. Neb. June 10, 2011).*

In a curious case from Ohio, the defendant hid a gun in the bushes in anticipation of what he thought was an illegal stop of his person. The court held he still had standing in the gun because it was hidden, not abandoned. The court cites an Art. III standing case, not a Fourth Amendment standing case. Nevertheless, the seizure of the gun was valid because the officer saw where it was left. United States v. Keys, 2011 U.S. Dist. LEXIS 87954 (S.D. Ohio August 9, 2011)*:

The government’s attempt to expand the principle applicable to disclaimed baggage into the proposition that a defendant has no standing to request suppression of abandoned property is not well-taken. The facts of this case simply are not on point or in line with the disclaimed bag cases. There is no search of luggage or a container in this case. Defendant here claims no expectation of privacy with regard to the gun, he simply claims he does not own it and that due to an improper detention he was mistakenly linked to the gun. A party has standing when they have a sufficient stake in a controversy, an injury-in-fact caused by conduct complained of, that can be redressed by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Defendant here meets such requirements and has standing.

The government, citing United States v. Martin, 399 F.3d 750 (6th Cir. 2005), similarly argues that Defendant has no fourth amendment interest in the gun because he abandoned it. However, the facts from the government’s view do not support such theory. In California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), the Supreme Court established the rule that the fourth amendment does not apply to anything one may abandon while fleeing the police in order to avoid seizure. Here however, taking the facts from the government’s view, Defendant put the gun in the bush before any show of police authority and before any attempts by Defendant to avoid the police. Although his actions were furtive and raised suspicion, he arguably never fled the officers and he quickly submitted to their authority moments after Officer Wloszek observed his behavior. There was no chase. Had Defendant been refusing to submit and in the course of fleeing when he put the gun in the bush, this case would be on all fours with Hodari and Martin. But the fact pattern here is different. Defendant has a fourth amendment interest in avoiding unreasonable seizures, and he is entitled to invoke such interest in challenging the conduct of the officers who seized him and then linked him to the gun.

The trial court started the suppression hearing without defense counsel present because he was in another court in another county. He arrived shortly after it started where the officer had only gotten into background information. Nevertheless, the court finds this was a denial of counsel. People v Strothers, 2011 NY Slip Op 06200 (App. Div. 1st Dept. August 11, 2011):

The right to counsel for an accused person is constitutionally guaranteed at trial and at other critical proceedings such as a pretrial suppression hearing (see People v Carracedo, 214 AD2d 404 [1995]). The deprivation of counsel has been described as absolute and harmful per se (see People v Margan, 157 AD2d 64, 65-66 [1990]). Because of the sanctity of the right to counsel, we need not engage in an analysis as to what transpired in the case during counsel’s absence and whether the evidence received, or matters discussed with the court, were material to the defense. ” The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial'” (id. at 66, quoting Glasser v United States, 315 US 60, 76 [1942]). Thus, we reject the People’s argument that the deprivation here can be overlooked because defendant was unrepresented for only a small portion of the cumulative testimony and that the portion counsel missed covered only background and general information.

The fact that the right to counsel is absolute also renders baseless several of the other arguments advanced by the People. For instance, it is of no moment that counsel, once he did arrive for the hearing, did not preserve the objection that it began without him. Where counsel is not present when the deprivation occurs and so cannot lodge an objection, the issue can be raised for the first time on appeal (Margan at 70). The People offer no support for their position that the presence of codefendants’ counsel, whose clients’ interests they allege were aligned with defendant’s, was an adequate substitute. Evidence that defendant expressly agreed to the representation and waived any conflict, as would be required, is completely absent from this record (cf. People v Torres, 224 AD2d 269, 270 [1996], lv denied 88 NY2d 943 [1996]).

We also reject the People’s contention that the deprivation of counsel here was harmless. The Court of Appeals has held that, where a defendant is deprived of counsel at a suppression hearing, the error cannot be deemed harmless even if one can conclude that the outcome of the hearing would have been the same had counsel been present (see People v Wardlaw, 6 NY3d 556, 559 [2006]). …

On LegalMatch blog: Legislatures Grapple With New Police Technologies by Sonya Ziajaon:

My colleague wrote last month about the need for clear guidelines for using “new police technologies,” including GPS tracking darts and x-ray vans. He is not alone. Federal and state legislatures have been taking up this issue, even while courts are in the process of defining the limits of citizens’ Fourth Amendment right to privacy.

As Mr. Rivera noted, tracking devices have been very useful tools for law enforcement. At the same time the tools are invasive and used surreptitiously, raising significant privacy concerns. Still, no one is seriously considering banning any of these devices. The question legislatures are grappling with is whether or not law enforcement should be required to seek a warrant before employing invasive tracking technologies.

NPR: New Police Scanner Raises ‘Facial Profiling’ Concerns by Tovia Smith:

Beginning this fall, police officers across the nation will have a new weapon holstered onto their belts: A small attachment that weighs about 12 ounces turns an ordinary iPhone into a state-of-the-art biometric scanner.

Volokh.com: The Government’s Brief in United States v. Jones and the Four Models of Fourth Amendment Protection by Orin Kerr:

Thanks to Lyle Denniston, I learned today that the Justice Department has just filed its brief in United States v. Jones, the pending Supreme Court case on whether installing and using a GPS device to detect the location of a suspect’s car without a warrant violates the Fourth Amendment. The DOJ brief is an interesting example of how Fourth Amendment arguments are constructed, so I wanted to blog a bit about it. I’ll start with a bit of context from a recent law review article, and then break down the government’s arguments accordingly. I’ll then make some quick predictions about arguments the Respondent’s brief might make.

A warrant for “premises” includes vehicles located on it even though they aren’t specified. United States v. Perez, 2011 U.S. Dist. LEXIS 86820 (E.D. Pa. August 5, 2011):

The Third Circuit has not discussed the lawfulness of vehicle searches pursuant to “premises warrants” which do not specifically mention automobiles. Cf. United States v. Menke, 468 F.2d 20, 22 (3d Cir. 1972) (analyzing search of car as warrantless seizure where “area for search set forth” in agents’ warrant “was limited to the house and did not include the automobile”). A number of other courts, however, have concluded that a valid warrant for a “premises” generally permits the search of any vehicles owned by the resident that are located on the property. See, e.g., United States v. Reivich, 793 F.2d 957, 963 (8th Cir. 1986) (citing United States v. Percival, 756 F.2d 600, 612 (7th Cir. 1985)) (additional citations omitted) (noting that vehicles except for “the vehicle of a guest or other caller” are included within scope of a warrant authorizing a premises search); United States v. Silva, 593 F. Supp. 2d 316, 318 (D. Mass. 2009) (citing United States v. Patterson, 278 F.3d 315, 318 (4th Cir. 2002)) (additional citations omitted). In this vein, the Fifth Circuit has “consistently held that a warrant authorizing a search of ‘the premises’ includes vehicles parked on the premises.” United States v. Fields, 380 F. App’x 400, 404 n.22 (5th Cir. 2010) (quoting United States v. Singer, 970 F.2d 1414, 1418 (5th Cir. 1992)). The parties do not dispute that the 4Runner belonged to Perez. The search of the 4Runner was thus within the scope of the warrant if the vehicle was on the premises at the time.