A fire code inspector had an administrative warrant to inspect airplane hangers and found three vehicles parked inside. The inspector felt that something was awry, so he wrote down two of the VIN numbers which were visible from outside. As to the third, the VIN was obstructed, so the license plate number was written down. Later, it was determined that two of the vehicles were stolen. Defendant had an expectation of privacy in the hanger as the renter. Recording the VIN during an otherwise lawful search was not an unreasonable seizure under Hicks and Class. State v. McCammon, 250 P.3d 838 (Kan. App. 2011):

First, we must determine whether the officer’s observation of the VINs through the windshields of two vehicles was a search implicating the Fourth Amendment. We hold that it was not. The mere observation of anything that comes into view during an otherwise lawful search is not an independent search implicating the Fourth Amendment because it produces no additional invasion of privacy interests beyond those already jeopardized. See Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987); Illinois v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983). As noted by the Court in Hicks, if the officer had taken any action beyond mere observation—even a trivial movement of an item by only a few inches—we would be compelled to conclude that an independent search occurred implicating the Fourth Amendment. 480 U.S. at 325.

Next, we must determine whether the officer’s recordation of the VINs was a seizure within the meaning of the Fourth Amendment. Again, we hold it was not. The recordation of the VINs did not meaningfully interfere with any possessory interest in the vehicles and therefore did not amount to a seizure implicating the Fourth Amendment. See Hicks, 480 U.S. at 324; Maryland v. Macon, 472 U.S. 463, 469, 105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985). The officer was able to record these numbers without any intrusion whatsoever; in fact, she was unable to record a VIN from a third vehicle because it was obstructed, so she opted against further action to observe and record that VIN. We cannot conclude that the recordation of the VINs was a seizure implicating the Fourth Amendment. …

Finally, we note as an alternative analysis that the United States Supreme Court has made clear that there is no reasonable expectation of privacy in a VIN. [quoting New York v. Class.]

Defendant’s arrest by an officer other than the one who saw the misdemeanor violation was valid because the first officer who saw it was still present. Thus, the search incident to the arrest was valid. State v. Ortega, 159 Wn. App. 889, 248 P.3d 1062 (2011).*

The officer encountered defendant while looking for a wandering black bear, and saw marijuana in plain view. After arresting him, a further search of the car was not justified without a warrant under the Washington Constitution. State v. Swetz, 160 Wn. App. 122 (2011).*

Defendant’s vehicle completely crossed the centerline coming down a hill to a stop sign, and then two wheels later crossed the centerline. The stop was valid, and the motion to suppress was erroneously granted. People v. Geier, 407 Ill. App. 3d 553, 348 Ill. Dec. 552, 944 N.E.2d 793 (2011).*

[posted 3/2]

FL2 reaffirms (State v. Tamulonis, 39 So. 3d 524, 527 (Fla. 2d DCA 2010), cert. denied, No. SC10-1539, 2011 Fla. LEXIS 80 (Fla. Jan. 3, 2011)) that there is no right to a search warrant to obtain defendant’s pharmacy records in a drug investigation. State v. Albritton, 58 So. 3d 894 (Fla. App. 2d DCA 2011).*

A drug dog alerted on defendant’s car, but the drug search proved futile. “Here, the Court concludes that the troopers had probable cause to search the entire truck, including the toolbox. Thus, the cash and documentary evidence contained inside Defendant’s vehicle was properly seized and should be upheld.” United States v. Vaughan, 2011 U.S. Dist. LEXIS 20277 (M.D. Tenn. February 28, 2011).*

Officer’s mistake of law that a license plate frame could not cover words at the bottom of the license plate justified suppression of the evidence from the arrest. Also, in Massachusetts, when a stop is based on a statute or regulation that is alleged to be void, a motion to dismiss should be filed, not a motion to suppress, but this one can proceed. Commonwealth v. Miller, 78 Mass. App. Ct. 860, 944 N.E.2d 179 (2011).*

Officers had a report a specifically described man was on a particular city block with a quantity of drugs. Officers waited, and, as defendant approached, one with POLICE on a vest stepped from behind a parked van, and defendant immediately dropped the drugs he had in hand when he saw the officer. Defendant was not yet seized when he dropped the drugs. Curtis v. State, 15 A.3d 216 (Del. 2011):

In this case, Silvers testified that once Curtis looked in Silvers’ direction, Curtis dropped the drugs “within a fraction of a second.” Silvers did not even have the chance to ask to speak to Curtis before Curtis dropped the drugs. In that respect, this case is more straightforward than Ross. If Silvers, in his police vest with his hand on his Taser, had continued to walk towards Curtis and had restricted Curtis’s movement or had ordered Curtis to stop, a reasonable person in Curtis’s position arguably would have believed he was not free to ignore the police presence. Those, however, are not the facts of this case. In this case, the mere presence of Silvers for a fraction of a second—or even a few seconds—would not cause a reasonable person in Curtis’s position to believe he could not ignore the police presence. This conclusion is consistent with our holding in Woody.

Probation officers had justification for a probation search from defendant’s not reporting a police “contact.” His admission he had marijuana also justified the search. Jacklin v. State, 16 A.3d 938 (Del. 2011).

On the Cato Institute’s website: I Guess the ‘You Are All Criminals Act’ Didn’t Have the Same Ring, by Julian Sanchez:

If you thought it was the height of cynicism when legislators dubbed a massive expansion of government surveillance power the “USA Patriot Act” (recently extended—really!—under the heading of small business legislation), feast your eyes upon the Protecting Children from Internet Pornographers Act of 2011, on which the House Judiciary Committee is slated to hold a hearing next Tuesday. What kind of monster would dare be on the record opposing that bill?

As you may have already guessed, the handful of provisions in the bill that really deal specifically with child porn are a fig leaf for its true purpose: A sweeping data retention requirement meant to turn Internet Service Providers and online companies into surrogate snoops for the government’s convenience. Any provider of an “electronic communication” or “remote computing” service—meaning broadband providers like Comcast, but also companies like Google—would have to retain records of the “temporarily assigned network address” (such as an IP address) associated with each account for 18 months. Some of the other provisions in the act seem perfectly reasonable (though I don’t know enough to say whether they’re necessary), but as a hearing earlier this year made crystal clear, it’s the data retention requirement that the government really cares about.

Thanks to an unwise Supreme Court decision dating from the 70s, information about your private activites loses its Fourth Amendment protection when it’s held by a “third party” corporation, like a phone company or Internet provider. As many legal scholars have noted, however, this allows constitutional privacy safeguards to be circumvented via a clever two-step process. Step one: The government forces private businesses (ideally the kind a citizen in the modern world can’t easily avoid dealing with) to collect and store certain kinds of information about everyone—anyone might turn out to be a criminal, after all. No Fourth Amendment issue there, because it’s not the government gathering it! Step two: The government gets a subpoena or court order to obtain that information, quite possibly without your knowledge. No Fourth Amendment problem here either, according to the Supreme Court, because now they’re just getting a corporation’s business records, not your private records. It makes no difference that they’re only keeping those records because the government said they had to.

Defendant’s daughter used the family computer to search for music files, and she found a picture of her naked torso. She looked further and found child pornography. She printed it out and gave it to a friend for safekeeping. A search warrant was properly issued for the computer, and defendant’s Franks challenge fails because it didn’t matter on the probable cause question. The search was proper in scope for digital information. United States v. Jones, 2011 U.S. Dist. LEXIS 73369 (D. Nev. April 13, 2011)*:

Furthermore, the nature of digital information is different from other searchable items. The warrant affidavit explains:

As is the case with most digital technology, communications by way of computer can be saved or stored on the computer used for these purposes. Storing this information can be intentional, i.e., by saving an email as a file on the computer or saving the location of ones’ favorite website(s) in, for example, “bookmarks” files. Digital information can also be retained unintentionally, e.g., traces of the path on an electronic communication may be automatically stored in many places.

Computer hard drives and other removable storage media … are convenient items in which digital information can be stored for later retrieval.

Affidavit to Warrant at 7 ¶¶ 4, 5, Attached as Exhibit A to Defendant’s Motion (#24). In this context, the warrant was as precise as it could be in relation to searching for evidence of child pornography and child pornography related chats.

NECN.com, Ind. first to require drug tests for job training:

SOUTH BEND, Ind. (AP) — A new Indiana rule requiring drug tests for unemployed people participating in state-funded job training programs reflects a hard stance many states are taking regarding public assistance as they struggle with limited financial resources.

The U.S. Department of Labor says Indiana is the first state to require drug testing of people seeking job training. But at least 30 states have considered requiring drug tests for those receiving government assistance, including Florida, which began requiring drug tests of welfare applicants on July 1.

Workforce Development Commissioner Mark Everson says Indiana’s change reflects the state’s economic realities and also some frustration from business owners, who’ve questioned why drug users should be participating in the job training program when they won’t pass workplace drug screening.

These guys just don’t get it. I wish I could show you Chapter 31 of the Fourth Edition on this, but it won’t be out until December.

Orin S. Kerr, Good Faith, New Law, and the Scope of the Exclusionary Rule, 99 Geo. L. J. 1077 (April 2011):

Lower courts recently have divided on whether the good faith exception to the Fourth Amendment exclusionary rule applies to reliance on overturned case law. This Article argues that the Supreme Court should reject the good faith exception in this setting. A suppression remedy for new law creates necessary incentives for criminal defendants to challenge existing precedents. The exclusionary rule deters constitutional violations by creating an environment for appellate decision making in which constitutional errors can be corrected. The costs of the exclusionary rule for overturned law are comparatively minor, as other doctrines already limit the scope of the exclusionary rule. The benefits of the exclusionary rule for reliance on overturned case law exceed its costs, and the rule therefore should be retained.

Kerr argued for the losing citizen-accused and Fourth Amendment in Davis v. United States.

Since a person has the right to walk, even run, away from a “consensual encounter,” he cannot be arrested for not complying with what would have been a “consensual encounter.” State v. Joe, 2011 N.C. App. LEXIS 1396 (July 5, 2011).*

Leaving a known drug house that police had targeted, then going back in, coupled with nervousness and shielding one side of his body with a sagging coat that suggested a weapon in the pocket was reasonable suspicion. This started as a consensual encounter. United States v. Johnson, 2011 U.S. App. LEXIS 13852, 2011 FED App. 0451N (6th Cir. July 6, 2011)*:

However, in this case we have much more than mere presence in an area known by the officers to be prone to drug trafficking. First, the officers were directed to a particular address based upon information from a confidential informant. Second, shortly after their arrival, the officers saw defendant approaching that address and called out to speak with him. Rather than stop, which he had no legal obligation to do, defendant entered the building for fewer than five seconds before re-emerging. Third, even though defendant agreed when asked to produce identification, he “fumbled” when doing so and the officers observed that he appeared to shield one side of his body. And, fourth, Officer Morton noticed that defendant’s coat was sagging, which he believed might indicate a weapon. All of these factors support the district court’s conclusion that the officers had a reasonable, particularized suspicion to conduct a Terry stop followed by a pat-down. In our view, the critical factor is defendant’s hurried entrance into the very building that the officers planned to target followed by a remarkably quick exit. Because we must give “due weight” to the officers’ factual inferences in deference to their specialized training, Luqman, 522 F.3d at 616, it is hardly a stretch to conclude that they reasonably thought that defendant’s five-second visit was an attempt to warn drug traffickers of the police presence. At the very least, it is enough to justify the initial Terry stop. Thereafter, the manner in which defendant positioned his body while talking to the officers, coupled by his fumbling in an inside pocket, justified the pat-down that uncovered the weapon. See United States v. Ellis, 501 F.3d 958, 961 (8th Cir. 2007) (a protective frisk is justified if officer had reasonable suspicion that criminal activity is afoot).

Defendant’s general consent to search his house for cash and drugs included a safe and his wallet. United States v. Baldwin, 2011 U.S. Dist. LEXIS 73010 (N.D. Ga. June 17, 2011), adopted 2011 U.S. Dist. LEXIS 73034 (N.D. Ga. July 7, 2011):

Defendant contends that the “search of the safe and the wallet went beyond the scope of any consent [he] could be construed as having given.” (Def.’s Br. 10.) “A consensual search is manifestly reasonable so long as it remains within the scope of the consent.” United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992) (citing Florida v. Jimeno, 500 U.S. 248, 249 (1991)). “When a defendant gives a general statement of consent, the scope of the permissible search ‘is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass.’” United States v. Telcy, 362 F. App’x 83, 87 (11th Cir. 2010) (per curiam) (quoting United States v. Street, 472 F.3d 1298, 1308 (11th Cir. 2006)).

As summarized above, defendant verbally consented to a search of the house in response to SA Mueller’s query whether there were weapons, cash, or narcotics in the house. In addition, defendant signed a form granting consent to search his property and vehicles. (Govt. Ex. 2.) Permission to search an area for narcotics “may be construed as permission to search any compartment or container within the specified area where narcotics may be found.” Martinez, 949 F.2d at 1119.

SCOTUSBlog: Review of the Court’s Fourth Amendment cases, Orin Kerr reviews the Fourth Amendment cases of OT10.

Warrantless Computer Searches and Fourth Amendment Rights by Sharon M. Porcellio, New York Law Journal, July 8, 2011 (sub. req.).

Defendant consented to a search of his computers for evidence of bank fraud. In the process, officers stumbled upon child pornography and obtained a search warrant. Thus, the scope of consent was not exceeded. United States v. Babb, 2011 U.S. Dist. LEXIS 71630 (W.D. Ky. July 1, 2011):

Defendant consented to having his computers searched for evidence of bank fraud. Part of a forensic examination for bank fraud involves browsing through images on the computer looking for fraudulent check images. Transcript of March 3, 2011 hearing, DN 48, pg. 168. In the process of viewing these images searching for checks, the forensic examiner encountered an image he suspected was child pornography. Id. The examiner immediately stopped his search. Id. at 169. A search warrant was obtained to search specifically for child pornography based on the image seen in plain view. Id.; see e.g., United States v. Lucas, 640 F.3d 168, 2011 WL 1775685 (6th Cir. 2011); United States v. Underwood, 2010 WL 5313766 (W.D.Ky. Dec. 20, 2010); United States v. Williams, 592 F.3d 511, 521-22 (4th Cir. 2010). Accordingly, the scope of the consent was never exceeded.

Defendants consented to a search of their airplane in Bowling Green, revealing 30 bricks of cocaine. Under 14 C.F.R. § 61.3(l), operators of airplanes are required to produce papers on demand. United States v. Garcia-Guillen, 2011 U.S. Dist. LEXIS 70330 (W.D. Ky. June 30, 2011):

The Officers did not use coercive measures, language, or tone, nor did they conduct a show of force by drawing their weapons, physically touching the Defendants or ordering them to move away from their plane. The two and a half minutes that the Officers retained the Defendants’ documents was a reasonable period of time that allowed the Officers to examine the documents. Under these circumstances, the Court finds that a reasonable person would have felt free to terminate the encounter and that the Defendants were not seized at the time consent to search the plane was granted.

However, assuming arguendo that the initial consensual encounter transformed into a seizure of Defendants prior to the granting of consent to search the plane, the Court finds that the evidence would still be admissible as a permissible stop under 14 C.F.R. § 61.3(l). This regulation states that “[n]o person may serve as a required pilot flight crewmember of a civil aircraft of the United States, unless that person … [h]as a pilot certificate or special purpose pilot authorization … and … a photo identification that is in that person’s physical possession or readily accessible in the aircraft when exercising the privileges of that pilot certificate or authorization.” Requirement for Certificates, Ratings, and Authorizations, 14 C.F.R. §§ 61.3(a)(1), (2) (2009). The regulation also states that “[e]ach person who holds an airmen certificate … or license required by this part must present it and their photo identification … for inspection upon a request from … [a]ny federal, state, or local law enforcement officer[.]” 14 C.F.R. § 61.3(l)(3).

Defendant was suspected of planning home invasion robberies, and Miami-Dade officers surveilled his apartment for three days, with nothing happening. Then they decided to do a knock-and-talk, and one officer went to the roof to get a better view. The knock-and-talk was valid, and entry was consented to by someone with authority. However, the view from the roof was excessive for a knock-and-talk because it is not a part of the premises that people are invited to, such as the front door. From the roof, defendant was observed through a window handling several firearms. United States v. Pupo-Reynaldo, 2011 U.S. Dist. LEXIS 71171 (S.D. Fla. June 6, 2011):

Although the undersigned finds that Ms. Baguet invited law enforcement officers inside the defendant’s residence and voluntarily consented to the search of residence, observations made by Detectives Gonzalez and Adderly while on the rooftop of the defendant’s terrance must be suppressed. The detectives’ access to the rooftop of the defendant’s residence was not permissible. United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006) (officers are permitted to approach a residence in the same manner as any private citizen would approach a residence). Detectives Gonzalez and Adderly observed the defendant attempting to dispose of firearms from the second story window at the back of the residence. At the time, Ms. Baguet had not yet provided consent to search the residence. Accordingly, the undersigned recommends that these observations be suppressed.

[In the overall scheme of things, the prosecution goes forward, and one witness doesn’t get to testify.]

Following other states, Massachusetts holds that DNA profile John Doe indictment was constitutionally sufficient to toll limitations period in a rape case. After the indictment, the DNA profile was matched via CODIS. Commonwealth v. Dixon, 458 Mass. 446, 938 N.E.2d 878 (2010):

The John Doe indictments in this case, identifying Dixon primarily by his unique DNA profile, are an entirely different species. Where a general John Doe indictment, bereft of any particularity, must fail as generally anonymous, the converse is true of a DNA indictment: it prevails as precisely eponymous. A properly generated DNA profile is a string of code that exclusively identifies a person’s hereditary composition with near infallibility. …

In sum, the March 15 and July 11 indictments incorporating Dixon’s unique DNA profile, and bolstered by age, height, weight, and race descriptions, comport with art. 12 and, in this respect, were valid when rendered by the grand juries. Connor, supra at 576-578.FN18

18. In holding as we do, we are in accord with several other jurisdictions that have upheld the validity of accusatory documents that name a unique DNA profile. See People v. Robinson, 47 Cal.4th 1104, 1133-1135, cert. denied, 131 S.Ct. 72 (2010) (arrest warrant for thirteen-loci DNA profile, which also offered explanation that profile had random match probability essentially incapable of duplication in human population, complied with particularity requirements of Fourth Amendment to United States Constitution and California Constitution); State v. Belt, 285 Kan. 949, 960-962 (2008) (expressing agreement “in the abstract” with proposition that warrant identifying person to be arrested for sexual offense by person’s unique DNA profile can satisfy constitutional and statutory particularity requirements, but affirming dismissal where warrant and supporting affidavits did not incorporate unique DNA sequence, but rather DNA loci common to all people); People v. Martinez, 52 A.D.3d 68, 73 (N.Y.2008) (especially in light of prevalence of DNA data banks as criminal justice tools, “DNA indictment is an appropriate method to prosecute perpetrators of some of the most heinous criminal acts”); State v. Dabney, supra at 853, 854, quoting Scheer v. Keown, 29 Wis. 586, 588 (1872) (when name is unknown, complaint or warrant may issue if referencing “best description of the person prosecuted” and noting that “for purposes of identifying ‘a particular person’ as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible”).

[Note: Also, there is this point: There is no indiscriminate arrest of people on the DNA profile, as could happen on a John Doe warrant or a mere physical description. Here the arrest does not occur until the DNA profile has already been matched from some other source, so there is no general warrant problem.]

Democracy Now: FBI to Expand Domestic Surveillance Powers as Details Emerge of Its Spy Campaign Targeting Activists:

Civil liberties advocates are raising alarm over news the FBI is giving agents more leeway to conduct domestic surveillance. According to the New York Times, new guidelines will allow FBI agents to investigate people and organizations “proactively” without firm evidence for suspecting criminal activity. We speak to former FBI agent Mike German, who now works at the American Civil Liberties Union, and Texas activist Scott Crow, who has been the focus of intense FBI surveillance from 2001 until at least 2008. Using the Freedom of Information Act, Crow received 440 pages of heavily redacted documents revealing the FBI had set up a video camera outside his house, traced the license plates of cars parked in front of his home, recorded the arrival and departure of his guests, and observed gatherings that Crow attended at bookstores and cafes. The agency also tracked Crow’s emails and phone conversations and picked through his trash to identify his bank and mortgage companies. “It’s been definitely traumatizing at different points,” says Crow. “But if we don’t come out and be open about this, then they’ve already won, and the surveillance and the ‘war on terror’ wins against us.” [includes rush transcript]

Defendant’s consent was not “coerced” by any alleged agreement not to disclose his infidelity to his girlfriend. Defendant’s consent was underscored by his putting limits on the search. United States v. Ng, 2011 U.S. Dist. LEXIS 70501 (E.D. N.Y. June 30, 2011):

While Defendant asserts that the agents agreed not to disclose his infidelity “on the condition that [Defendant] consent to the searches,” Defendant’s Memo at 10, this assertion is unsupported by the evidence. It was Defendant who set the conditions for his consent, telling the agents that he would agree to the search of the cell phones in exchange for the promise not to return them to the girlfriend. Similarly, it was Defendant who set the conditions for the search of the apartment, telling the agents that he would consent only if they agreed to let him alert the girlfriend in advance and accompany the agents during the search. There is no evidence whatsoever that the agents either explicitly or implicitly threatened to expose Defendant’s infidelity.

In this § 2255, the argument that defense counsel failed to attack the search warrant as a general warrant was frivolous. It hardly was. United States v. McClellan, 2011 U.S. Dist. LEXIS 70031 (W.D. Pa. June 29, 2011).*

Defendant’s consent to taking DNA for identification is not involuntary merely because the defendant is not informed that the identification will be used in other investigations. Defendant’s sample was taken in Missouri and was a cold case hit to a case in Colorado. People v. Collins, 250 P.3d 668 (Colo. App. 2010), cert. denied 2010 Colo. LEXIS 825
(Colo., Nov. 8, 2010).*

Defendant’s stop by the officer was justified because he was the first nervous looking black male he saw responding to the scene of an alleged fight involving black males. State v. Addai, 2010 ND 29, 2010 N.D. LEXIS 24 (February 17, 2010).*

Defendant alleged his search was invalid but presented no argument so it is waived. United States v. Aleman, 2010 U.S. Dist. LEXIS 13910 (D. Minn. February 17, 2010), USMJ R&R, 2010 U.S. Dist. LEXIS 14043 (D. Minn. January 8, 2010).*

Defendant’s car was not subject to a search incident where he was being chased by the police and bailed from the car and ran across a drainage ditch before he was captured. The car was left in gear, and an officer put it in gear, turned it off, and removed the keys. State v. Grib, 152 Wn. App. 885, 218 P.3d 644 (2009).* (Is this based on Washington law? Why no abandonment of the car? Virtually every other court would have held that.)

The court “ha[s] significant doubt whether the affidavit here establishes the crucial link between the illegal activity and the victim’s home. However, we need not reach that issue directly because we conclude that the ‘good faith’ exception to the exclusionary rule is applicable in these circumstances.” Objectively, the police acted reasonably and in reasonable reliance on the search warrant. People v. Hagos, 250 P.3d 596 (Colo. App. 2009), cert. denied 2011 U.S. LEXIS 2325 (U.S., Mar. 21, 2011).*

Defendant’s premises were subjected to a probation search when he wasn’t there. The officer had been looking for him for lack of contact, and the officer was admitted by defendant’s girlfriend. In the kitchen, he found boxes of ammunition, and that justified a complete search of the premises, and a gun was found. State v. Marks, 28 So. 3d 342 (La. App. 5th Cir. 2009).*

Officers had RS for the investigative detention of the defendant from surveillance of a controlled buy they knew was going down. The frisk of defendant was justified by his past record. United States v. Rafus, 2009 U.S. Dist. LEXIS 100902 (D. Nev. August 24, 2009).*

Although not a “search case” for purposes of this website, of interest is United States v. Sanchez, 586 F.3d 918 (11th Cir. 2009), where the defendants twice burglarized a hydroponic grow operation to steal the marijuana. The government got consent to search the premises from the grow operator. Unanswered is whether the grow operator was immunized or whether he even reported the burglary. Also an issue is cellphone records which were “frivolous[ly]” objected to on an alleged inadequate business record foundation.