Defendant’s plea of guilty waived his claiming IAC against defense counsel for not raising a motion to suppress. The plea colloquy also shows he was satisfied with his lawyer. United States v. Johnson, 2011 U.S. Dist. LEXIS 53561 (E.D. Ark. May 6, 2011)*:

Petitioner indicates that he made a conscious decision to plead guilty in the face of the evidence against him. If he had been dissatisfied with his attorney’s representation, he should have made that known before entering his plea of guilty. At his change of plea hearing, I asked Mr. Johnson whether he was satisfied with his lawyer and informed him that if he were in any way dissatisfied, he should tell me at that time. He told me that he was satisfied with his lawyer. Additionally, at his sentencing hearing, I asked him whether there was any reason he should be allowed to withdraw his plea of guilty. He responded that there was not.

Petitioner’s search claim was already litigated and he can’t raise it in a § 2255, which is denied. Taylor v. United States, 2011 U.S. Dist. LEXIS 53127 (C.D. Ill. May 18, 2011).*

Defendant’s girl friend signed a consent to search, and it was never challenged until his § 2255 that her consent was invalid. Her post-conviction affidavit she did not consent was insufficient to raise the lack of consent as an IAC claim. United States v. Walker, 2011 U.S. Dist. LEXIS 52862 (E.D. La. May 9, 2011)*:

Petitioner has not demonstrated the likelihood that any newly discovered evidence pertaining to the search would exonerate him of any of the crimes to which he pled. Indeed, Petitioner has not even enumerated for the Court what the expected evidence is. As the Government points out, Petitioner’s girlfriend gave written consent to search her home at the time of the search, and she also signed a factual basis to this effect. The Court concludes that this argument has no merit.

Officers validly conducted a protective sweep on information based on information from an informant. Moving a computer bag and finding a gun was proper, but looking inside the bag was not. United States v. Martinez, 2011 U.S. Dist. LEXIS 53483 (D. Utah May 17, 2011):

As for the evidence the Government contends was in plain view, the court finds the United States’ argument only partially persuasive. The methamphetamine and money inside the main compartment of the computer bag were not in plain sight. Sergeant Burnett had to open the bag to see what was inside. That evidence must be suppressed. But the baggie in the side pocket was spotted visually by Sergeant Burnett as he justifiedly picked up the black bag to uncover the handgun. That is sufficient to satisfy the plain view doctrine. See United States v. Jackson, 381 F.3d 984, 989 (10th Cir. 2004) (holding that warrantless search of container was justified under plain view exception to warrant requirement when officer sees, within plain view, contents of a container and “it is apparent or a ‘foregone conclusion’ that such contents are contraband.”).

It is not required that the trial court make findings on a motion to suppress, and its general denial of the motion was supported by the record. Remand for findings was a vain act. State v. Pierce, 2011 Ohio 2361, 2011 Ohio App. LEXIS 2011 (5th Dist. May 17, 2011).

During investigation of a “botched home invasion,” officers concluded that a shot possibly had come from the house because of a bullet hole in a window, so the officer could conduct a protective sweep of the house, which here was limited. He didn’t talk to anybody before he did it, but, even if the resident said there was nobody inside, he would not have had to rely on that. State v. Martin, 2011 Ohio 2379, 2011 Ohio App. LEXIS 2027 (9th Dist. May 18, 2011).*

The defendant had no reasonable expectation of privacy in a package that did not show that it was sent from him or to him. Even if he did, there was probable cause for the warrant based on a dog sniff and the good faith exception would apply anyway. [The court just ignored the defendant’s argument that the reliability was not decided.] State v. Miller, 2011 Ohio 2388, 2011 Ohio App. LEXIS 2051 (8th Dist. May 19, 2011).*

The defendant was validly stopped because his vehicle license was not on file. The officer found from the defendant, however, that the vehicle was lawfully registered, and the officer handed the papers back, took two steps back and said he could go. Then he stepped forward to continue the conversation with the defendant. The ensuing consent was valid. United States v. Esquivel-Rios, 2011 U.S. Dist. LEXIS 53050 (D. Kan. May 17, 2011)*:

Here, Trooper Dean handed the documents back to defendant, and advised him to travel safely. Dean then stepped back from the van a few steps, then stepped forward and asked defendant if he could ask him some questions. Dean used a normal tone of voice, was not touching his gun or leaning on the van. Defendant responded yes, and Dean then explained that there were large amounts of illegal drugs being transported from the west coast and asked whether defendant had any drugs in the van. When defendant responded no, Dean then asked if he could search the van, and defendant assented three times as the search progressed.

Defendant argues that the consent was the fruit of the illegal stop. Citing Brown v. Illinois, defendant argues that the consent given was not voluntary because there was insufficient attenuation or break in the causal connection between the illegal detention and the consent. Brown is not applicable to this case, however, as defendant’s consent was not given after an illegal stop. Because the Court has ruled that the initial stop was justified, there is no “poisoned fruit.”

. . .

Considering the totality of the circumstances, the Court finds that defendant’s detention was transformed into a consensual encounter when Trooper Dean returned defendant’s paperwork and told him to have a safe trip. Neither Trooper Dean’s testimony, nor the video of the stop, supports the finding that he made any “coercive show of authority” such that a reasonable person would not have felt free to leave. There is no evidence that the trooper used any force throughout the encounter, brandished his weapon, made any threats or commands, or physically touched defendant. Therefore, the Court finds that defendant’s consent to the search was voluntarily given and was not obtained in violation of the Fourth Amendment.

From The Bay Citizen: SF Public Defender: Surveillance Video Shows Police Officers Lied, Thousands of criminal cases could be affected, by Shoshana Walter:

San Francisco Public Defender Jeff Adachi released another series of surveillance videos Wednesday that he claims proves police officers are systematically violating suspects’ fourth amendment rights.

The video, which Adachi’s office obtained in March, shows plain clothes narcotics officers arresting Fernando Santana, 48, for cocaine possession at the Jefferson Hotel Dec. 30, 2010.

The detention here was without reasonable suspicion and was unduly extended with a prolonged “fishing expedition” of asking questions about the purpose of the trip in an effort to get inconsistencies. Only then was the drug dog brought out. The prolonging the stop was unreasonable. State v. Stover, 2010 Mo. App. LEXIS 1813 (December 14, 2010), modified May 3, 2011:

Here, there was an unnecessarily and unreasonably protracted detention before the officer tried to resolve his suspicions by direct confrontation about the suspicion, and summoning the drug dog. Our record suggests that this detention involved at least fifteen minutes of unnecessary compelled discussion that amounted to a “cat and mouse game,” conducted as though the travelers had “all the time in the world” to talk to the officer. In Maginnis, the officer lacked reasonable suspicion but engaged in the same kind of prolonged discussion detention, hoping to develop reasonable suspicion.

The Iowa constitution’s exclusionary rule does not apply to probation revocation proceedings, to further the remedial purposes of probation. State v. Shoemaker, 2011 Iowa App. LEXIS 305 (May 11, 2011).*

No case in the last three years has generated the number of internet and blog hits that came from Barnes v. State—posted here—the Indiana case holding that the common law rule that one could oppose an illegal entry into the home with force was essentially repealed by modern law.

I’ve read several (most could be discarded because of the tenor of the article, that the Fourth Amendment was repealed in Indiana or the end of America or something like that) and none were written about. They were from all over the country, but Indiana editorials were uniformly opposed to it. This article is more interesting: The Indiana AG has decided to ask for rehearing to scale back the decision, while still affirming Barnes’s conviction, in the interest of judicial restraint: Justices asked to review ruling, Attorney general opposes decision on police searches from the Ft. Wayne Journal Gazette.

Orin Kerr in Volokh Conspiracy: Gun Rights Groups File Amicus Brief in Fourth Amendment GPS Case Advocating Originalist Fourth Amendment of going back to property rights and not just privacy:

The amicus brief in support of DOJ’s cert petition in Jones is here. The brief doesn’t really have much to do with GPS surveillance, but it’s interesting that it advocates a rejection of privacy as a Fourth Amendment guide and a return to property as a guide — including back to the common law “mere evidence” rule, by which the government cannot get a warrant to obtain mere evidence. If I understand the brief, then, the amici are not arguing that a warrant should be required for GPS surveillance: Rather, they are arguing that GPS surveillance should never be allowed even if the police have probable cause and a warrant. (link in original)

Mr. Kerr does not mention that one of the lawyers for the amici is Joseph Miller, erstwhile Republican candidate for the U.S. Senate in Alaska last November.

On Blog of the Legal Times: In D.C. Circuit, DOJ Defends Secrecy Of Cell Phone Tracking:

Justice Department lawyers are fighting in a Washington federal appeals court to keep secret the case names and docket numbers of criminal prosecutions in which the authorities tracked defendants through cell phone data.

DOJ lawyers contend in the litigation in the U.S. Court of Appeals for the D.C. Circuit that the privacy interests of defendants outweighs any nominal public value of the information the American Civil Liberties Union wants to review. Judge James Robertson of Washington federal district court ordered the government to disclose the data in March 2010.

DOJ lawyers said, among other things, that disclosing information that a person has been tracked via a cell phone “can have a significant impact on an individual’s social relationships.” ACLU attorneys contend a person who has been publicly indicted “have nothing left to lose by being further identified as targets of warrantless cell phone tracking.”[link in original]

Defendant was the subject of an anonymous tip that she was selling ecstacy from her car in a store parking lot. Two officers approached to talk to her and her husband, and told her that she wasn’t going to get to leave until she submitted to a search. Thus, the search was not by consent. Dillon-Watson v. State, 2011 Fla. App. LEXIS 7203 (Fla. App. 4th DCA May 18, 2011):

In this case, the totality of the circumstances show that the “consent” to search the vehicle was not voluntary, if there was consent at all. After receiving a specific tip, the officers located a vehicle matching the description in the tip in the parking lot of a mall. The officers were in their marked sheriff’s vehicle. They got out of their vehicle and approached Dillon-Watson’s vehicle. Both were in full uniform. Deputy Abrams asked both appellant and her passenger why they were there. When they explained to him that they were exchanging their child in a neutral place, the officer told them he was investigating the tip which described both them and their vehicle. He then asked for their identification. He said, “I’d like to see your ID’s and I’ll just take a quick look at your vehicles and if everything checks out okay, you guys will be good to go.” Once he ran the identifications, which did not reveal any outstanding warrants, he then approached them again and said, “Let me just take a quick look at your vehicles, and then if you guys are good, you’ll be on your way.” The deputy said that they in some manner indicated that it was “okay.” In searching he found the drugs which formed the basis for the possession charge.

Based upon the totality of the circumstances, we cannot conclude that Dillon-Watson would have felt free to leave during this encounter. From the beginning, she was informed by two uniformed officers that they were investigating a tip of drug activity in her vehicle. This was not some vague allegation but contained details describing her vehicle and both herself and her ex-husband. They were focused on Dillon-Watson as a suspect in a criminal investigation. The officer asked for their identifications, but told them if they checked out and he could look in their vehicle, they would be “good to go.” In other words, until he was allowed to search the vehicle, they would not be “good to go.” Any reasonable person would consider that the officer would not let her go until the officer had searched the vehicle. Dillon-Watson was seized. The consent, such as it was, was not voluntary but an acquiescence to a show of authority. (emphasis in original)

This case is so compelling on the facts, I just can’t believe (1) the trial judge found this consent, and (2) that the state just did not concede error on appeal. The fact the trial judge found consent makes this worth posting at length.

A protective sweep of a house where the defendant was arrested outside is not categorically prohibited in the Sixth Circuit, and it was proper here. United States v. Landolt, 2011 U.S. Dist. LEXIS 52983 (E.D. Tenn. May 17, 2011), R&R 2011 U.S. Dist. LEXIS 52871 (E.D. Tenn. March 15, 2011).* From the R&R:

Further, the Sixth Circuit has not limited protective sweeps to arrest situations only. In United States v. Taylor, 248 F.3d 506, 513-14 (6th Cir. 2001), the Sixth Circuit permitted a cursory search of the premises for people who threatened officers’ safety while the officers waited for a search warrant to be obtained. No arrest had been made at the time the protective sweep was conducted. However, the Taylor Court noted “the officers had acted properly to secure the premises and wait for a search warrant before conducting a search of Taylor’s apartment.” Id. at 514. Officers cannot create situations in which they may be placed in harm’s way in order to justify a protective sweep unless they have a valid reason to do so. United States v. Campbell, 261 F.3d 628, 633 (2001) (“It is well established that police officers are not free to create exigent circumstances to justify their warrantless searches.”) (citing United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir.1984)). Thus, the undersigned turns first to the question of whether Johnson had a constitutional basis to detain defendant at the time the protective sweep was conducted.

. . .

In the instant case, we are concerned with the second type of protective search. The agents had a reasonable basis to believe that firearms were in the house, and they knew that someone else was in the house because they saw a woman run into the house after she saw them outside the house. While the officers were relatively far away from the house, about 40 to 50 yards, a firearm can be discharged accurately from that distance. I conclude the agents had a reasonable basis to believe the house harbored an individual posing a danger to the agents on the scene. Accordingly, I will recommend defendant’s motion to suppress evidence discovered at his residence on August 21, 2009 be DENIED

Defendant was stopped for mere traffic offenses, so a search incident would be invalid under Gant. Nevertheless, the vehicle was properly subjected to an inventory even though it was not towed. The police started to tow it because defendant had a suspended DL, but he prevailed upon the officers not to tow it and, instead, move it to his grandmother’s house because he needed it for work. So, they helped move the car there. Still, it was subject to an inventory for weapons for safety purposes. United States v. Watson, 2011 U.S. Dist. LEXIS 52371 (S.D. Ill. May 17, 2011):

Thus, the officers established that it is their policy and routine to conduct inventory searches in circumstances such as those they faced in this case. In light of this policy, it is evident that a lawful inventory search hypothetically could have occurred at two different junctures of the arrest process, had the search not been performed directly after defendant’s arrest. Police would have searched the vehicle before moving it off the busy street, and they would have searched the vehicle before driving it to defendant’s grandmothers’ home. Furthermore, the Court FINDS that this type of search, which could be conducted for legitimate officer safety reasons, would have been reasonable in this case. Thus, under the inevitable discovery doctrine, the evidence still would have been found, and the evidence found during the search will not be suppressed.

In the LATimes today: State lawmakers weigh anti-piracy bill to allow warrantless searches of CD and DVD makers:

The Recording Industry Assn. of America is pushing the legislation, which wants to give law enforcement officials the power to enter manufacturing plants without notice or court orders. But U.S. constitutional law scholars say the proposal may violate the 4th Amendment.

Forgetting Payton v. New York?

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Should RIAA have more power than the police? Who has better lobbyists? It sure isn’t the people.

Justin F. Marceau, The Fourth Amendment at a Three-Way Stop, 61 Ala. L. Rev. No. 4 (2011).

Abstract:

There are three general litigation forums for persons aggrieved by constitutional violations – exclusionary rule litigation in a criminal case, habeas corpus challenges to the legality of one’s confinement, and civil litigation seeking damages or equitable relief. Over the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in each of these three fields, and the scope of such limitations has begun to compound exponentially in recent years. The stagnating impact on the development of Fourth Amendment law as a result of the increasingly emaciated constitutional-remedial regime is cause for concern and the subject of this Article.

Commentary criticizing recent curtailments of constitutional remedies has focused primarily on the way that limited remedial access might result in the under-enforcement of the Fourth Amendment and a corresponding under deterrence, or skewing of police incentives. This Article, in contrast, addresses the potential for under-announcement of Fourth Amendment law based on a skewing of judicial incentives. Procedural limitations on the development of the Fourth Amendment threaten to create a substantive three-way stop, a virtual freezing of search and seizure doctrine. The threat of a procedurally induced constitutional stagnation is particularly notable in view of the fact that the modern hallmark of Fourth Amendment law is the Katzian imperative of doctrinal evolution and the need for an ever evolving set of legal protections.

Officers saw 8-10 men congregated on a closed grocery store parking lot, and it was reasonable to approach them to see what was going on. The officer asked for defendant’s ID and gave it back. That de-escalated the stop. Defendant finally consented to a search of his car, and it was not an involuntary consent. United States v. Tuggle, 2011 U.S. Dist. LEXIS 16874 (W.D. Tenn. February 18, 2011).*

While pretextual stops violate Washington law, speeding through a residential neighborhood was sufficient basis for a stop. State v. Weber, 159 Wn. App. 779, 247 P.3d 782 (2011).*

The stop and search of defendant’s car was based on the fact it was apparent that he was doing counter surveillance for a vehicle carrying drugs. He was watched as he paced the other car, stopping when it did. United States v. Slone, 636 F.3d 845 (7th Cir. 2011).*

Defendant was properly denied a hearing in his § 2255 on his IAC search claim because he had no standing to question the search. Edmonds v. United States, 2011 U.S. Dist. LEXIS 17054 (M.D. Ga. February 22, 2011).*

The issue under the automobile exception is “inherent mobility,” not “probable mobility.” See United States v. Howard, 489 F.3d 484 (2d Cir. 2007), and United States v. Navas, 597 F.3d 492 (2d Cir. 2010). The fact the officers had time to get a warrant was essentially irrelevant. United States v. McKreith, 708 F. Supp. 2d 216 (D. Conn. 2010).*

The officer’s observing defendant’s hand-to-hand sale from a baggie of apparent crack was reasonable suspicion for a stop. Then the defendant admitted that he had a gun on him. United States v. Baker, 750 F. Supp. 2d 921 (W.D. Tenn. 2010).*

Defendant’s [lame-ass] excuses for his lawyer’s alleged lack of performance at his suppression hearing were hardly relevant and did not show that he received ineffective assistance. United States v. Moran, 2010 U.S. Dist. LEXIS 116416 (W.D. Va. November 2, 2010).*

Defendant’s search claim was raised and litigated to conclusion pretrial and on appeal, so he can’t relitigate it via § 2255. United States v. Mitchell, 2010 U.S. Dist. LEXIS 116155 (D. Kan. October 31, 2010).*

In a GPS case, where all the right things were argued, Ohio’s 12th District Court of Appeals rejects NY’s Weaver (2009) and Washington’s Jackson (2003) because the Ohio Supreme Court says that the state constitution is to be interpreted like the Fourth Amendment. The opinion glaringly omits reference to the D.C. Cir’s Maynard (2010). State v. Johnson, 2010 Ohio 5808, 190 Ohio App. 3d 750, 944 N.E.2d 270 (12th Dist. 2010).*

The officer here was parked on the street in front of a house, and the defendant parked nearby and walked up to the officer to ask why he was parked there and to see what was going on. The defendant smelled strongly of alcohol and had bloodshot eyes. The officer had reasonable suspicion to perform a field sobriety test. Commonwealth v. Cauley, 2010 PA Super 217, 10 A.3d 321 (2010).*

As long as the officer has probable cause for some offense to stop defendant’s car, it does not matter that defendant was arrested for a different offense. Here, the existence of probable cause made Gant inapplicable, and search incident was not preserved below anyway. State v. Louthan, 158 Wn. App. 732, 242 P.3d 954 (2010).*

Officer observed what he thought was a hand-to-hand drug sale, and he approached the defendant, the alleged buyer, to talk about it. Defendant said that he got a cigarette but he did not have it. The officer patted down the defendant and felt a bag in the pocket. He handcuffed then searched the defendant. The motion to suppress was improperly granted without consideration of “special circumstances” that would justify handcuffs without a seizure. Reversed and remanded for further consideration of that issue. State v. Carrouthers, 200 N.C. App. 415, 683 S.E.2d 781 (2009).*

Officers were in defendant’s house with an arrest warrant for another. Defendant was seen in bed and told he could leave. He asked for pants, and the officer picked up a pair and found a baggy protruding from the pocket in plain view. That was not an unreasonable seizure. Cauls v. Commonwealth, 55 Va. App. 90, 683 S.E.2d 847 (2009).*

Defendant’s guilty plea waived any Fourth Amendment issues. McAplin v. United States, 2009 U.S. Dist. LEXIS 97077 (W.D. N.C. August 15, 2009).*

Defendant’s ex-wife was a sufficient source of hearsay for a search warrant because of corroboration. Her information, although 11 months old, did not make the warrant stale because there was other information from other sources more timely. United States v. Modena, 2009 U.S. Dist. LEXIS 97920 (W.D. Mich. October 21, 2009)*:

“It is enough, for purposes of assessing probable cause, that ‘corroboration through other sources of information reduced the chances of a reckless or prevaricating tale,’ thus providing ‘a substantial basis for crediting the hearsay.'” Gates, 462 U.S. at 244-45 (quoting Jones v. U.S., 362 U.S. 257, 269, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960)). The information defendant’s ex-wife contributed in paragraph 13 was corroborated by Miller, which reduced the chances of a “reckless or prevaricating tale” and provided a substantial basis for crediting the hearsay.

Albuquerque PD policy giving officers limited discretion to tow or not tow a vehicle does not violate the Fourth Amendment. United States v. Kelly, 2010 U.S. Dist. LEXIS 127394 (D. N.M. November 17, 2010):

Moreover, officers cannot perform an inventory search unless they are authorized to tow a vehicle in the first place. Allowing an officer to change his or her mind will not expand the scope when an inventory search is permitted; rather, it will allow an officer to abort a plan to have a vehicle towed, which will produce less of an interference with an individual’s rights, not more. It makes little sense to come up with a bright-line constitutional rule that requires a further invasion of property rights and deprivation of property — and requires towing — when practical circumstances change or no longer dictate relocation of a vehicle. The Constitution should not be in conflict with common sense. Mapp v. Ohio, 367 U.S. at 657 (“There is no war between the Constitution and common sense.”). If an officer decides not to tow an individual’s vehicle, then the individual’s deprivation of his or her vehicle is lessened because the vehicle is seized to a lesser degree than if it were towed. Regardless, an inventory search would be permitted even if the officer were not allowed to change his mind once it was performed. “[I]n forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical ‘all or nothing’ fashion.” Florida v. Wells, 495 U.S. at 4 (addressing whether “[a] police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself).

The search warrant for defendant’s vehicle was properly issued for firearms, but drugs were included in the particularity clause for which there was no probable cause. That did not make seizure of the drugs invalid because they would have been found in plain view during the execution of the warrant. United States v. Walker, 403 Fed. Appx. 803 (4th Cir. 2010) (unpublished)

Probable cause existed to detain plaintiff for something; here, driving a prohibited vehicle on a public road; so his claim that he was framed for DUI to justify his arrest was rejected. A false arrest claim requires a showing that there was no probable cause. Jackson v. Parker, 627 F.3d 634 (7th Cir. 2010).*

Plaintiff had nude pictures of herself on her cell phone, which she loaned to her boyfriend and was seized by the police when he was arrested. Several police officers viewed the pictures [can you imagine?]. She had no reasonable expectation of privacy in her cell phone from this kind of intrusion when she loaned it to her boyfriend. Casella v. Borders, 404 Fed. Appx. 800 (4th Cir. 2010) (unpublished).*

To undermine the trial court’s conclusion on credibility of witnesses on a search issue requires that the findings be “inherently implausible,” and here they aren’t. United States v. Miser, 403 Fed. Appx. 994, 2010 FED App. 0759N (6th Cir. 2010) (unpublished).*

While the renter of the hotel room rented under an alias did not have a key on him, he could always get another key from the front desk. That gave him control over the room to consent to a search. United States v. Randall, 2010 U.S. Dist. LEXIS 132385 (D. S.C. December 14, 2010).*