A city trash container next to defendant’s house in the city, not yet put at the curb for collection, was on the curtilage. There has to be curtilage in an urban area. Ousley v. Commonwealth, 2011 Ky. App. LEXIS 110 (June 24, 2011):

In answering this question, we are mindful of the unique circumstances attendant to modern urban living. In many modern urban communities, the outside property directly appended to a single family residence is frequently diminutive and readily open to public observation. In this modern urban reality, absolute privacy in the outside area surrounding a home is often illusory in its strictest sense. However, urban residents still expect certain areas of outside property surrounding their home to be regarded as private, and the public recognizes such expectation of privacy as reasonable.

In this case, appellant’s trash toter was located in an area only a few feet from his residence and was situated directly next to his storage shed. Both the trash toter and shed were located at the far end of appellant’s private driveway. This driveway extended back beyond the front of appellant’s residence and into an area appellant utilized for private storage needs. Considering the configuration of the homes in appellant’s neighborhood, the utilization of this area for private storage by appellant was reasonable. Appellant’s residence only had a small front yard and no adjacent side yard as the residence next door was built nearly upon the common boundary line and was only separated by each home’s respective private driveway.

Juxtaposing the factors set forth in Quintana to the facts herein, we conclude that appellant’s trash toter was located within the curtilage of his home. See Quintana, 276 S.W.3d 753. …

A 911 call about a dead body at one’s house is consent to enter the house. Mayes v. State, 2011 Mo. App. LEXIS 937 (Mo.App. July 13, 2011):

When Movant called 911 and requested emergency assistance, he consented to the entry of his home which, upon discovery of a dead body, became a crime scene warranting further investigation. [State v. Johnston, 957 S.W.2d 734, 742 (Mo banc. 1997).] The motion court cited a Texas case which made the same point:

[W]hen a homeowner makes a 911 call and requests immediate assistance because of an emergency, he is indicating his consent to (1) the arrival and entry of the responding officers to resolve that emergency and, (2) absent any evidence of the revocation of that consent, an objectively reasonable limited investigation by the responding officers into the emergency that the homeowner reported.

Johnson v. State, 226 S.W.3d 439, 444 (Tex.Crim.App. 2007). By making such a call, “surely the objectively reasonable homeowner envisions that the responding police will enter his home, view the scene, take pictures of that scene, and make a cursory search for relevant evidence directly relating to the homeowner’s emergency call.” Id. at 447.

Volokh Conspiracy: DC Circuit Holds That New Airport Screening Security Measures Comply with the Fourth Amendment by Orin Kerr:

The new airport screening measures involving millimeter wave technology and backscatter technology — together with the opt-out of a pat-down — have received a great deal of public attention. Back when the new measures were first widely introduced, I blogged about why a Fourth Amendment challenge to the new practices was an uphill battle. Today, the DC Circuit handed down an opinion in EPIC v. Department of Homeland Security holding that the new practices comply with the Fourth Amendment. I believe this is the first clear court ruling on the question, and it’s certainly the first from a federal court of appeals. The opinion is by Judge Douglas Ginsburg, and it was joined by Judges Henderson and Tatel.

…

That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” Edmond, 531 U.S. at 47–48, and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

Contrary to the EPIC’s argument, it is not determinative that AIT is not the last step in a potentially escalating series of search techniques. In Hartwell, from which the petitioners tease out this argument, the Third Circuit upheld an airport search that started with a walk-through magnetometer, thence to scanning with a hand-held magnetometer and, when the TSA officer encountered a bulge in the passenger’s pocket, progressed (according to the passenger) to the officer’s removing a package of crack cocaine from that pocket. 436 F.3d at 175–76. The court noted, however, that its opinion, while describing the search at issue there as “minimally intrusive,” did “not purport to set the outer limits of intrusiveness in the airport context.” Id. at 180 & n.10. Nothing in Hartwell, that is, suggests the AIT scanners must be minimally intrusive to be consistent with the Fourth Amendment.

It’s a bit surprising, given the public controversy, that the analysis here was so sparse. It seems that Judge Ginsburg didn’t even think it required any heavy lifting — just a quick paragraph or two. And notably, no one wrote separately. That’s particularly interesting given that this opinion is from a pretty Fourth-Amendment-rights-friendly panel: Note that Judge Ginsburg authored the recent Maynard decision holding that GPS surveillance requires a warrant, which also was joined by Judge Tatel.

On another note, Marian Paterson, 94-Year-Old Woman, Gets TSA Patdown, and I’m flying this evening.

Five Atlanta police officers were fired for lying during an investigation into a raid on a gay bar where patrons’ Fourth Amendment rights were violated. Nine more were reprimanded, and over $1M paid out in settlements. See WSB2 Atlanta: 6 APD Officers Fired Over Eagle Raid:

“The reports conclude that most of the officers involved in the operation did not conform to the APD’s standard operating procedures,” the mayor’s office said.

Officers said they raided the bar on Ponce de Leon on Sept. 10, 2009, after they got a tip that drugs were being sold and that sex acts were taking place there. Police searched about five dozen patrons and arrested eight employees in the raid. Witnesses said officers used anti-gay slurs and roughed up customers.

The report said patrons were unnecessarily forced on the ground while background checks were run. When asked why, one officer said, “There’s a risk factor involved when you’re dealing with people you don’t know anything about. S&M, that has a stigma of some sort of violence,” according to the report.

Another officer is quoted as saying, “Seeing another man have sex with another man — I would classify that as very violent.”

The city paid 28 people $1,025,000 to settle the federal lawsuit.

The handling of the customers was clearly a violation of Ybarra, decided in 1979. How much notice do they need?

Boston.com: Travelers checks: Automatic License Plate Readers track your every move by Kade Crockford, On Liberty Blog:

Remember the furor this spring, when we learned that iPhones and other mobile devices were logging every move their users made? Automatic License Plate Readers (ALPRs) would do something similar to your car.

Late last year, the Commonwealth of Massachusetts advertised a $300,000 grant from the federal Department of Transportation for the purchase of ALPRs. Over 90 agencies in the state applied; 27 were given the grant money.

Many of these towns (see a full list here) have already implemented the technology. At least one, Brookline, is currently struggling with whether or not to accept the funds and implement an ALPR.

NYT re SF: Big Brother Rears Head In New Push For Cameras by Hadley Robinson:

When San Francisco installed surveillance cameras in high-crime neighborhoods in 2005, the city faced fierce opposition from residents and civil liberties groups.

Fast-forward six years: cameras that could provide crucial evidence in criminal investigations are everywhere. Seventy-one are owned by the city. The rest, an unknown number, are on people’s cell phones and installed in hotels, restaurants and businesses.

The San Francisco Police Department now wants even more.

Wired.com Danger Room: Senators Ask Spy Chief: Are You Tracking Us Through Our iPhones? by Spencer Ackerman:

Two key senators want to know if the leader of the vast U.S. intelligence apparatus believes it’s legal for spooks to track where you go through your iPhone.

In a letter that Sens. Mark Udall (D-Colorado) and Ron Wyden (D-Oregon) will send later on Thursday, obtained by Danger Room, the senators ask Director of National Intelligence James Clapper, “Do government agencies have the authority to collect the geolocation information of American citizens for intelligence purposes?”

Both senators are members of the panel overseeing the 16 intelligence agencies. In May, they sounded warnings that the Obama administration was secretly reinterpreting the Patriot Act to allow a broader amount of domestic surveillance than it had publicly disclosed.

Technorati: Facebook’s Privacy Settings Loosening Up With U.S. Law Enforcement by iLo Ivy:

According to Reuters, the FBI, DEA and ICE have found hope in federal judges, who are authorizing warrants to search individuals’ Facebook accounts, following up on investigations from rape to terrorism. Law enforcement agencies already have manuals on how to request data from Facebook, and the number of warrants – none of which have been challenged, in spite of violating a person’s Fourth Amendment protection against unlawful search and seizure – has almost doubled in 2011.

Although this isn’t entirely surprising – and could even seem irrelevant for the average Facebook user – anyone’s messages, status updates, links to videos and photographs, calendars, events, wall posts and even rejected friend requests could end up ‘entertaining’ “Big Brother”. Especially these days, in the (likely) event of identity theft by rogue crackers, who have made a sport out of hacking the websites of some of our favorite brands, local banks, top government agencies and even the network of some police departments.

Telling the defendant to essentially stay put while his DL was checked for wants or warrants did not turn a consensual encounter into a Fourth Amendment seizure. United States v. Lowe, 2011 U.S. Dist. LEXIS 74637 (S.D. Ga. June 16, 2011).*

Defense counsel’s failure to move to suppress the search of defendant’s house would not have changed the outcome because the bulk of the evidence came from his car, which he did not challenge. United States v. Perez, 2011 U.S. Dist. LEXIS 74506 (E.D. Pa. July 11, 2011).*

Officers had reasonable suspicion for a stop for defendant being in possession of drugs, but he also crossed the fog line three times while being followed. He was stopped and given a field sobriety test. In the meantime, a drug dog arrived and alerted, and that gave probable cause to search the car. The four minutes between the stop and the arrest was not unreasonably long. United States v. Sicairos-Sicairos, 2011 U.S. Dist. LEXIS 74557 (N.D. Ga. July 11, 2011), R&R 2011 U.S. Dist. LEXIS 74556 (N.D. Ga. June 20, 2011).*

Defendant previously litigated the search warrant in his case as an outrageous governmental conduct claim, not a Fourth Amendment claim. Thus, it is defaulted as a Fourth Amendment claim in his 2255. United States v. Holler, 2011 U.S. Dist. LEXIS 74139 (C.D. Cal. July 6, 2011).*

ABAJ: Cops to Get Facial Recognition Devices; Will They Need Warrants to Use Them? by Debra Cassens Weiss:

Police departments in several states are getting new high-tech devices that can scan irises, recognize faces and collect fingerprints.

The devices, made by BI2 Technologies, are attached to an iPhone for immediate searches of criminal databases, the Wall Street Journal (sub. req.) reports. The development is “raising significant questions about privacy and civil liberties,” the story says.

Currently the technology, called “Moris” for Mobile Offender Recognition and Information System, is used by the military to identify insurgents. But B12 has contracts to sell about 1,000 of the Moris devices to 40 police agencies, the story says.

The Wall Street Journal interviewed George Washington University law professor Orin Kerr about the legal implications. Generally, police can take pictures of anyone in a public space. But after an officer stops or detains someone, police need “reasonable suspicion” to take fingerprints.

Whether a warrant will be needed to use facial recognition or an iris scan is “a gray area of the law,” Kerr said. “A warrant might be required to force someone to open their eyes.”

We’re taking away your Fourth Amendment rights, and we have an App for that.

Thomson-Reuters: A new law-enforcement tool: Facebook searches:

U.S. law-enforcement agencies are increasingly obtaining warrants to search Facebook, often gaining detailed access to users’ accounts without their knowledge.

A Reuters review of the Westlaw legal database shows that since 2008, federal judges have authorized at least two dozen warrants to search individuals’ Facebook accounts. Many of the warrants requested a laundry list of personal data such as messages, status updates, links to videos and photographs, calendars of future and past events, “Wall postings” and “rejected Friend requests.”

Federal agencies seeking the warrants include the FBI, DEA and ICE, and the investigations range from arson to rape to terrorism.

The Facebook search warrants typically demand a user’s “Neoprint” and “Photoprint” — terms that Facebook has used to describe a detailed package of profile and photo information that is not even available to users themselves.

These terms appear in manuals for law enforcement agencies on how to request data from Facebook. The manuals, posted on various public-advocacy websites, appear to have been prepared by Facebook, although a spokesman for the company declined to confirm their authenticity.

The review of Westlaw data indicates that federal agencies were granted at least 11 warrants to search Facebook since the beginning of 2011, nearly double the number for all of 2010. The precise number of warrants served on Facebook is hard to determine, in part because some records are sealed, and warrant applications often involve unusual case names. (One example: “USA v. Facebook USER ID Associated with email address jimmie_white_trash@yahoo.com,” a sealed case involving a drug sale.)

On CNET news: DOJ: We can force you to decrypt that laptop By Declan McCullagh. The issue is a Fifth Amendment issue issue of privacy:

The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution’s Fifth Amendment, which broadly protects Americans’ right to remain silent.

Where a drug search warrant includes “electronic documents” for drug information, it authorizes seizure of a computer found in the house. United States v. Sutton, 2011 U.S. Dist. LEXIS 73582 (C.D. Ill. July 8, 2011)*:

The government argues that the face of the warrant, commanding officers to search for electronic documents relating to illicit drug trafficking, covered a search of the computer. The court agrees. “The Fourth Amendment requires that a warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging through one’s belongings. The description of the items to be seized limits the scope of the search to the area where those items are likely to be discovered.” United States v. Mann, 592 F.3d 779, 782 (7th Cir. 2010). The question then, is whether in light of the limitations in the warrant, the execution of the search warrant was reasonable. Mann, 592 F.3d at 782.

It is reasonable to suspect that a computer could contain electronic documents relating to the purchase or delivery of drugs, as covered in the warrant. Further, a computer could contain electronic records of residency. The warrant expressly authorizes a search for “documents tending to show identification and residency” and it is reasonable for a police officer to suspect that a computer would contain just such a document or record, even though the warrant itself did not explicitly list computers. Further, in an abundance of caution, the police sought an additional warrant to fully search the computer after it was seized and removed from the apartment. The court would also note Defendant did not point to any case law supporting his argument that the computer search exceeded the scope of the warrant. Therefore, Defendant’s Motion to Exclude Video Evidence (#38) is DENIED.

So, law enforcement officers can put in a search warrant application that they want “electronic documents” for drug information, and that means that any drug warrant can turn into a computer search? That’s essentially what this case holds.

Déjà vu all over again:

Defendant’s proffer in an affidavit in support of the motion to suppress from his girlfriend, apparently to distance him from the contraband, completely undermined his standing, even though the trial court found standing. The appellate court finds no standing. Commonwealth v. Holley, 79 Mass. App. Ct. 542, 947 N.E.2d 606 (2011):

As noted, the girlfriend’s affidavit does not establish any reasonable expectation of privacy in the basement area or in the box. The defendant’s affidavit adds nothing to the privacy calculus. Indeed, the defendant’s affidavit says nothing about the Flint Street apartment and the basement area, which would establish any connection to that place by the defendant. In any event, it is clear from the record — specifically from the date of the defendant’s arrest on April 21, 2005, and his being held in custody continuously thereafter — that the defendant never was present at the Flint Street apartment, much less resided there.

Living with a probationer reduces one’s expectation of privacy. There must be reasonable suspicion to believe that the object at issue was under the control of the probationer for a search to occur. People v. Seiler, 406 Ill. App. 3d 352, 943 N.E.2d 708 (2010):

The question then becomes whether Kelly violated defendant’s fourth-amendment rights by removing the container from defendant’s possession and opening it after defendant grabbed the container on a table in a common area of the house. Both parties agree this appears to be a question of first impression in Illinois. Both parties also agree on the proposition that, in order to search a particular item during a warrantless probation search, the probation officer must have reasonable suspicion the item in question is owned, controlled, or possessed by the probationer. See United States v. Davis, 932 F.2d 752, 758 (9th Cir. 1991); People v. Boyd, 224 Cal. App. 3d 736, 744-45, 274 Cal. Rptr. 100, 105-06 (1990) (parole search); Milton v. State, 879 P.2d 1031, 1034-35 (Alaska App. 1994). We agree with this standard.

In this case, an objectively reasonable probation officer could have reasonably suspected this container was owned, controlled, or possessed by Owen. Defendant lunged toward a table in the common area of the residence and made a grabbing motion. The only item in defendant’s hand was the bullet-shaped container. Defendant and Owen were both in the same area of the residence. The police had information both defendant and Owen had been using methamphetamine at the residence. Defendant either could not or would not identify the object in his hand. As a result, we cannot say defendant’s fourth-amendment rights were violated by the search of the container.

Thus use of handcuffs on defendant was not justified by Terry but there was probable cause, so it was justified by his arrest. People v. Johnson, 408 Ill. App. 3d 107, 945 N.E.2d 2 (2010)* [This case has an excellent discussion of handcuffing and Terry under Illinois law.]

The forced warrantless entry into defendant’s camper was not justified by exigent circumstances. The assault on the deputies, however, was not justified by their illegal entry. A motion to suppress will not be granted over an independent criminal act. State v. Browning, 2010 Ohio 5417, 190 Ohio App. 3d 400, 942 N.E.2d 394 (4th Dist. 2010), discretionary appeal not
allowed, 2011 Ohio 1049, 128 Ohio St. 3d 1426, 943 N.E.2d 573 (2011).

After a traffic stop, a furtive movement toward the dashboard was justification for a frisk of the car under the dashboard. State v. Gillenwater, 2010 Ohio 5476, 2010 Ohio App. LEXIS 4609 (8th Dist. November 10, 2010).*

DUI stop resulted in a valid plain view of a vial in a compartment in the door of PCP. State v. Wilson, 2010 Ohio 5478, 2010 Ohio App. LEXIS 4606 (8th Dist. November 10, 2010)

The police knew the informant, and they were able to corroborate his information. This gave probable cause for the search of defendant’s car, and the issue of consent did not have to be decided. State v. Duffus, 125 Conn. App. 17, 6 A.3d 167 (2010).*

DNA taken in Illinois of a prison inmate doing time for a murder was not inadmissible in Missouri in a cold-case murder prosecution. The Illinois Genetic Privacy Act does not govern—the Fourth Amendment does, and the Fourth Amendment was not violated. State v. Bowman, 337 S.W.3d 679 (Mo. 2011):

Illinois Genetic Privacy Act

Bowman argues that the IGPA, 410 ILCS 513, restricts law enforcement from using information generated in a criminal investigation to investigate a separate crime. Bowman concludes that the IGPA extends the right of privacy and protections afforded by the Fourth and Fourteenth amendments by further restricting when genetic information can be released.

Bowman’s argument fails because state law privacy protections do not extend the protections afforded by the Fourth Amendment as applied to the states via the Fourteenth Amendment. For instance, in Virginia v. Moore, 553 U.S. 164, 171-174, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2007), the Court held that violation of a Virginia state law pertaining to the legality of an arrest did not impact the constitutional analysis of the reasonableness of the search incident to the arrest. Likewise, even if the IGPA barred the sharing of genetic information in unrelated criminal cases, a violation of those provisions would not support a finding that a defendant’s Fourth Amendment rights were violated.

The defendant was encountered in a high crime area, and the officer put her in the police car for “mere convenience,” and patted her down. She was not given the opportunity to identify herself, so no violation of the law occurred. Suppression order affirmed. State v. Habel, 2010 Ohio 3907, 190 Ohio App. 3d 393, 942 N.E.2d 389 (2d Dist. 2010).*

The officer saw defendant in a high crime area jaywalking (a non-arrestable offense), and he stopped him. The officer frisked him because he kept his hands in his pocket [it was cold] finding heroin. The frisk was lawful. State v. Lovins, 2010 Ohio 3916, 2010 Ohio App. LEXIS 3319 (2d Dist. August 20, 2010).*

Officers responding to an armed burglary call encountered the defendant in the place with a door open, with body armor at his feet. The search of defendant’s person was justified. State v. Tucker, 2010 Ohio 3920, 2010 Ohio App. LEXIS 3318 (2d Dist. August 20, 2010).*

An officer responded to a silent alarm at a child development center in the night and encountered the defendant walking way from the building with a duffle bag. The silent alarm is not treated like a CI. A frisk was justified. State v. Brandon, 2010 Ohio 3901, 2010 Ohio App. LEXIS 3303 (2d Dist. August 20, 2010).*

The tasering of plaintiff was unreasonable on these facts because it was unjustified and excessive force. As of the date of the occurrence, there was no case definitively holding that tasering was unreasonable under facts like these. Therefore, the officer is entitled to qualified immunity. Bryan v. Macpherson, 630 F.3d 805 (9th Cir. 2010).*

Defendant’s arrest was based on probable cause, and he had no standing to challenge the discarded evidence from the person of a codefendant. United States v. Acon, 2010 U.S. Dist. LEXIS 125552 (D. Minn. November 15, 2010), adopted 2010 U.S. Dist. LEXIS 125680 (D. Minn. November 29, 2010).*

The CI’s in this case were arrestees seeking favorable treatment, so they had no presumption of reliability. They were corroborated, so probable cause was shown. United States v. Williams, 2010 U.S. Dist. LEXIS 125717 (E.D. Wis. November 2, 2010).*

The video does not overcome Officer Madison’s testimony and is not enough to demonstrate that the record preponderates against the trial court’s findings of fact. State v. Hewitt, 2010 Tenn. Crim. App. LEXIS 1005 (November 29, 2010).*

The record supports the fact finding and the conclusion there was reasonable suspicion for defendant’s stop. The stop being valid, his confession is too. Peralta v. State, 338 S.W.3d 598 (Tex. App. – El Paso 2010).*

Hot pursuit for a fleeing misdemeanant (discarding an apparent joint in public in front of officer) into his home was reasonable under the Fourth Amendment. State v. Bell, 28 So. 3d 502 (La. App. 4th Cir. 2009), released for publication February 12, 2010, writ denied by State v. Bell, 2010 La. LEXIS 533 (La. Mar. 5, 2010).

Questions to the defendant amounted to a seizure because he was not free to go. The emergency aid exception argued by the state fails because there was no concern expressed by the officer for defendant’s well-being. State v. Montano, 2009 NMCA 130, 147 N.M. 379, 223 P.3d 376 (2009).*

Defendant as a mere possessor of a cell phone did not have standing to contest the state’s production of records from the cell phone. He did not show a connection to the cell phone. State v. Stitt, 201 N.C. App. 233, 689 S.E.2d 539 (2009).*

Defendant was reasonably ordered out of his car because of a window tint violation because the officer could not see through the windows. It was not unreasonable for the officer to shine his flashlight into the vehicle and see the butt of a gun that led to the seizure of the gun. State v. Hunt, 25 So. 3d 746 (La. 2009).*

Apparent hand-to-hand transaction and defendant’s flight was reasonable suspicion. State v. McMillan, 30 So. 3d 36 (La. App. 5th Cir. 2009).*