A search warrant for trace evidence of a homicide in a car was sufficient under the particularity requirement. How much more precise could it be? United States v. Burgos-Montes, 2011 U.S. Dist. LEXIS 47046 (D. P.R. February 28, 2011):

It is known that insofar as trace evidence of a homicide, no matter how much someone tries to clean up a crime scene, something is generally left behind, even if not always easily detected. Geared to find this evidence, forensics examines a particular crime scene for the so called trace evidence of a crime. Such evidence can be a number of things, from hair follicles, DNA samples, glass, dirt, plant, foreign objects to the particular site under examination or absence of certain objects that are expected to be found at the site, with consideration of any possible cross transfers that could have occurred from a person to person contact or a site to person contact. Although must forensic of a homicide would center on fingerprints, fibers, hair specimens or DNA samples of any bodily secretions, it could easily assist to find other items, as well, depending on the time frame and the nature of the offense.6

6 Trace evidence of a crime may be related to glass, paint, dirt or dust, pollen, leaves or roots, seeds, as well as a general category of trace evidence which in relation to other evidence may assist in identifying the commission of an offense, including tool marks and ballistics, surface indentations and particles subject to gas chromatography.

The particularity requested by defendant in regards to the trace evidence requested in the search warrant of the black Chrysler Sedan vehicle at issue may encompass residues of different kinds, marks, fabric, prints, grime or minute traces of elements which may subsequently be subject of forensic analysis. Still, it is not a generalized search, but one limited to a particular item, the Chrysler black sedan with license plates GIG-001, which examination may have required sampling of minute traces of evidence requiring further scientific analysis.

The warrant at issue cannot be invalidated as a general warrant for it does not vest the executing officers with unbridled discretion to conduct an exploratory rummaging through defendant’s property in search of criminal evidence. Rather, the warrant’s clauses describe in both specific and inclusive generic terms what is to be seized: “evidence or traces of evidence relevant to the homicide of Madeline Semidey Morales” in relation to a particular crime. By directing the searching officers to seize all of these items, the Magistrate Judge, rather than the officers, determined what was to be seized. Christine, 687 F.2d at 753.

As argued by the government relying on Atwell, it is “perfectly logical for the officers to search for items such as … blood, hair, fibers, fingerprints, items of identification, personal possessions, receipts or the like, since those items might well link [defendant] to [Morales-Semidey], at or near the time of [her] disappearance. Atwell, 289 F.Supp 2d at 636. The circumstances of this case and the nature of the crime being investigated limited the parameters of the relevant evidence.

Furthermore, Christine “made clear that search warrants and their supporting affidavits are to be judged ‘in a commonsense and realistic fashion.’” Atwell, 289 F.Supp.2d 629, 635. “The use of generic classifications in a warrant is therefore sufficient to delineate the categories of items to be seized when, due to the circumstances of the investigation, a more precise description is not feasible.” Christine, 687 F.2d at 753.

Related case: United States v. Montes, 2011 U.S. Dist. LEXIS 47141 (D. P.R. May 2, 2011).

LATimes today: State to double crime searches using family DNA: California’s success in using ‘familial searching’ spurs Atty. Gen. Kamala Harris to increase funding for the controversial genetic sleuthing technique in rape, murder and cold cases By Maura Dolan.

A young man followed a woman into a coffee shop as she prepared to open for business at 6 a.m. He put a knife to her throat, sexually assaulted her, barricaded her in a walk-in refrigerator and grabbed cash from the register before vanishing.

The March 2008 attack near the Santa Cruz Harbor in a low-crime neighborhood unnerved the community and spawned an intense police hunt.

“It is the kind of attack that communities most fear — a stranger attacking somebody who truly is just an innocent victim going about their lives,” said Santa Cruz Deputy Police Chief Steve Clark.

Police dogs, fliers containing a composite sketch of the suspect and a search of the DNA offender database failed to net a suspect — until the state earlier this year traced the suspect through the DNA of his father, a felon whose genetic profile was stored in the database.

On a related note, on Friday, May 13th is a CLE at the Cyril H. Wecht Institute of Forensic Science and the Law at Duquesne University:

The Changing Face of DNA: The Science, Law and Ethics of Familial Searches

In the wake of California’s Grim Sleeper case and amidst the deepening debate over the use of “familial DNA” searches, in which investigators look for close-but-not-exact matches between DNA evidence collected at crime scenes and data banks of DNA collected from convicted felons, the Institute and the Bayer School will convene legal, scientific and investigative experts to weigh the pros and cons of this controversial issue.

Confirmed speakers include Mark Perlin, M.D., Ph.D., CEO and chief scientific officer of DNA testing firm Cybergenetics; Rock Harmon, DNA evidence authority and former district attorney of Alameda County, CA; Lisa B. Freeland, Federal Public Defender, Western District of PA; Ronald Freeman, former commander of investigations for the Pittsburgh Bureau of Police; Pete Marone, M.S., director of the Virginia Department of Forensic Sciece; and Jay Aronson, Ph.D., professor of history at Carnegie Mellon University and author of Genetic Witness: Science, Law, and Controversy in the Making of DNA Profiling.

Additional speakers to be announced.

It is not ineffective assistance to not file a motion to suppress just because “it is ‘elementary to make motions to suppress.’” It is not. United States v. Gomez, 2011 U.S. Dist. LEXIS 48790 (S.D. Tex. May 1, 2011):

Gomez does not allege any basis for his claim that a motion to suppress should have been filed, other than it is “elementary to make motions to suppress.” His conclusory statements do not establish that the factual basis for the wiretap warrant was insufficient or that the federal agents relied on false or misleading statements to obtain the warrants. Counsel was not required to file a motion to suppress that had no legal basis. See Clark, 19 F.3d at 964 (counsel is not ineffective to failing to make frivolous objection).

Defendant was in front of a known drug house watching two others play cards on a trash can. Officers stopped to inquire and directed everybody to stop and not move. Defendant volunteered that he had a gun. The stop was reasonable and with reasonable suspicion considering the likely illegal card game and reputation of the house. United States v. Johnson, 2011 U.S. Dist. LEXIS 48662 (S.D. Ga. April 19, 2011).*

Police responded to a call about a child not breathing. After the child was taken to the hospital, the police reentered the house and searched, finding weapons and drugs. The reentry violated the Fourth Amendment because the exigency dissipated. State v. Laprairie, 2011 Ohio 2184, 2011 Ohio App. LEXIS 1863 (2d Dist. May 6, 2011):

[*P60] We glean from [Michigan v.] Fisher and the authorities it cites that, when relying on the emergency aid exception to the warrant requirement, the state assumes the burden to prove by clear and convincing evidence that officers were presented with a compelling need to enter a home or other private premises in order to provide immediate aid to persons inside who were either seriously injured or threatened with such injury. Furthermore, the officers must have had an objectively reasonable basis for believing that such a need to enter presently exists. A mere nexus to a need that formerly did exist is insufficient.

On Politico: Apple tells [Rep.] Markey it doesn’t track users:

Apple made it clear to Congress: We don’t track users’ locations.

That’s the message Apple had for Rep. Ed Markey (D-Mass.) in a letter responding to the lawmaker’s concern about information the company collects about consumers.

The popular tech company asserts that it has never tracked users’ locations and “has no plans to ever do so.”

On Forbes.com: Here’s What The GPS Devices Used By The FBI To Track Your Car Look Like:

With GPS tracking all over the news after it was reported that iPhones, smartphones, and other mobile devices were tracking user’s movements, fix-it-yourself website ifixit added their grain of salt by performing one of their now-famous teardowns on an FBI tracking device mounted on animal rights and environmental activist’s car by federal agents calling her a “left-wing anarchist.”

The interesting teardown of the FBI’s tracking device comes amid a heightened debate on privacy laws and organizations’ capacity to track users and citizens’ movements. Beyond the GPS tracking scandal that hit Apple and the continued debate over Google’s location information, the issue has gone onto federal forums with the Obama administration pushing to get law enforcers cleared of the need for a warrant to track citizens, according to Wired.

A nighttime search was justified under state law because the CI told the officer that the defendant was “cleaning up” the crime scene by “tending to” a burn barrel to get rid of evidence of a meth lab. Fowler v. State, 2011 Ark. App. 321, 2011 Ark. App. LEXIS 350 (May 4, 2011).*

Police had information of a marijuana grow, and they approached the defendant’s property, but they were deterred by dogs. Instead, they procured a National Guard helicopter for a flyover seeing marijuana plants. [Without discussion,] Defendant’s wife consented to a search of the property. Populis v. State, 2011 Ark. App. 334, 2011 Ark. App. LEXIS 358 (May 4, 2011).*

Defendant’s traffic stop was justified for swerving, as shown by the video. He unequivocally consented to a search after the stop. United States v. Sierra, 2011 U.S. Dist. LEXIS 48440 (M.D. Ala. April 19, 2011).*

In the Senate today: Lawmakers look at phone tracking:

Tech companies such as Apple and Google are hoping the tracks of millions of mobile device users will lead to billions of dollars in revenue.

But where they see dollar signs, lawmakers see red flags.

The revelation last month that Apple’s iPhones collected location data and stored it for up to a year — even when location software was supposedly turned off — has prompted renewed scrutiny of the nexus between location and privacy.

If information exists, and law enforcement knows about it, they will seek. “If you build it, he will come.”

The government succeeded in showing that the mistake on the date on the warrant was an accidental misdating by the issuing judge, and the warrant was actually served after it was issued, not before. Typographical or scrivener’s errors in dates are correctable at the suppression hearing. United States v. Bigi, 2011 U.S. Dist. LEXIS 47757 (S.D. Ohio April 29, 2011):

The Government characterizes the dating confusion as a “comedy of errors.” The Court sees no comedy. Nevertheless, while the numerous dating issues comprising the “comedy of errors” are unprofessional, the evidence presented at the reopened hearing, including the documentary evidence corroborating the time-line of events, credibly demonstrates that all the affidavits and warrants were all executed on July 24, 2009, and those affidavits and warrant which are dated July 29, 2009, were actually executed on July 24, 2009, and the mis-dating is the result of clerical error by Judge Moore. As set forth in the Court’s previous Order, mere clerical errors do not render unconstitutional the search conducted pursuant to the mis-dated warrants. See Knott v. Sullivan, 418 F.3d 561, 569 (6th Cir. 2005) (citing United States v. Durk, 149 F.3d 464, 465 (6th Cir. 1998)). Moreover, upon the testimony at the re-opened hearing, Detective Brown’s July 29, 2009 narrative entry does not negate the truth underlying the Court’s fundamental conclusion that all the affidavits and warrants were executed on July 24, 2009.

Search warrant for premises in a child pornography case was particular enough and not subject to suppression under the good faith exception. While there was an “in-law suite” inside, that was unknown to the officers from their investigation that the house was in a neighborhood of single family dwellings, the mailbox did not indicate multiple occupants, and a public records search did not reveal multiple occupants. Even once inside, it was not apparent because of unlocked doors to the suite. United States v. Axelrod, 2011 U.S. Dist. LEXIS 47586 (D. Md. April 29, 2011).*

From NPR’s Science Friday: Are Your Gadgets Spying On You?

Your smart phone and your car’s GPS may know where you are and where you’ve been–what happens to that data once it’s collected? Ira Flatow and guests discuss consumer privacy and electronic devices. What data can companies legally collect and with whom can they share it?

The burden of proof and persuasion in the suppression hearing was not shifted against the defendant. While the defense called all the witnesses, the state retained the burden. The defense concession that the defendant was still on probation (indefinite with a three year minimum) at the time of the search made the state’s case. State v. Marshall, 239 P.3d 1286 (Ida. App. 2008), Review denied 2008 Ida. LEXIS 213 (Idaho, Dec. 12, 2008), later proceeding at State v. Marshall, 149 Idaho 725, 239 P.3d 1286 (App. 2008).*

Plaintiff stated a claim for relief for defendants’ failure to have a warrant that was particular enough. Halliday v. Spjute, 2008 U.S. Dist. LEXIS 77080 (E.D. Cal. September 23, 2008)*; Booth v. Spjute, 2008 U.S. Dist. LEXIS 77141 (E.D. Cal. September 23, 2008).*

DUI roadblock was validly set up by the police. Officer’s testimony at the suppression hearing that they were there also to generally “enforce the law” was neither adverse to this conclusion nor determinative. Britt v. State, 294 Ga. App. 142, 668 S.E.2d 461 (2008).*

A probation search term is a judicial act, and the probation officer is not expected to question it. Moreover, the breadth of the search term is subject to the good faith exception. One person has no standing to challenge a search term of another’s probation. People v. Rios, 193 Cal. App. 4th 584, 122 Cal. Rptr. 3d 96 (5th Dist. 2011):

Furthermore, any illegality in the probation condition itself would be attributable to the court that imposed the condition, and not to the probation officers. (See People v. Miller (2004) 124 Cal.App.4th 216, 224 [21 Cal. Rptr. 3d 13].) “[W]hether a search is reasonable must be determined based upon the circumstances known to the officer when the search is conducted.” (People v. Sanders (2003) 31 Cal.4th 318, 334 [2 Cal. Rptr. 3d 630, 73 P.3d 496].) As far as the officers in the present case knew, R.R. was subject to numerous terms and conditions, including search. Since R.R. was on an early release program and not some form of minimal supervision, we would not expect a probation officer to question the judgment of the court that imposed a search condition. (See Illinois v. Krull (1987) 480 U.S. 340, 349–350 [94 L. Ed. 2d 364, 107 S. Ct. 1160].) Under such circumstances, application of the exclusionary rule to suppress evidence would be unwarranted. (See ibid. [no application of exclusionary rule where officer acted in objectively reasonable reliance on statute later declared unconstitutional]; United States v. Leon (1984) 468 U.S. 897, 920–922 [82 L. Ed. 2d 677, 104 S. Ct. 3405] [no application of exclusionary rule where officer acted in objectively reasonable reliance on search warrant later found to be invalid]; People v. Miller, supra, 124 Cal.App.4th at pp. 222, 223–225 [evidence seized by law enforcement officers not to be suppressed if officers relied on objectively reasonable justification at time of seizure; facially-valid, court-imposed probation condition justifies search even if guilty plea resulting in probation grant vacated subsequent to search]; but see People v. Willis (2002) 28 Cal.4th 22, 35, 38–39 [120 Cal. Rptr. 2d 105, 46 P.3d 898] [exclusionary rule applies where source of error that led to unconstitutional search was part of law enforcement team].)

Defendant’s vehicle was properly impounded and inventoried because it was being driven without proper registration and proof of insurance. Also, there was no one to whom the vehicle could be released. The state has the burden of proving a valid inventory, and they did so. Moskey v. State, 333 S.W.3d 696 (Tex. App. – Houston (1st Dist.) 2010).*

Defendant’s IAC claim fails as to his search issue, too. He had the burden of showing something that the search warrant was improper, and he put on nothing at the hearing. Hanebutt v. State, 2010 Tenn. Crim. App. LEXIS 938 (November 9, 2010).*

The police received a 911 call from a woman who gave her first name and number complaining that the defendant offered marijuana for sex and described his car and that he had a gun and she felt threatened. When the police pulled up on the car matching the description, defendant fled. There was reasonable suspicion for the stop. United States v. Hairston, 402 Fed. Appx. 84, 2010 FED App. 0700N (6th Cir. 2010) (unpublished).*

Defendant was stopped in a park at night, and his car was searched. He argued that the search was invalid under Gant, and the state argued pre-Gant good faith. Instead, the court found the search valid under the automobile exception. Under the totality of circumstances, it was apparent that defendant was up to no good when he was in the park, likely there to commit a robbery or worse because he had the accouterments for it, and this was not just a guy violating the city ordinance of being in the park after hours. He was convicted of attempted rape. State v. Newman, 149 Idaho 596, 237 P.3d 1222 (App. 2010).*

Officers continued to detain the defendant after his information came back “good” and he had no wants or warrants. The officers were still unsure that he was correctly identified, and that made the continuation reasonable. He consented during the continuation. Jones v. Commonwealth, 279 Va. 665, 691 S.E.2d 801 (2010).*

Threats to get a warrant for urine did not make defendant’s consent to breath test involuntary. State v. Hays, 234 Ore. App. 713, 228 P.3d 731 (2010).*

The collective knowledge doctrine under the Fourth Amendment and Virginia v. Moore is not limited to felonies; it applies to misdemeanors and traffic offenses, too. United States v. Wilkinson, 633 F.3d 938 (10th Cir. 2011). The last paragraph of that dicussion:

It is therefore unremarkable that courts have applied the collective-knowledge doctrine to stops for misdemeanors without any discussion about whether the doctrine applies in that context. See Pasiewicz v. Lake Cnty. Forest Pres. Dist., 270 F.3d 520, 521, 524 n.2 (7th Cir. 2001) (knowledge of officers who ordered arrest was imputed to arresting officers in public-indecency case); City of Maumee v. Weisner, 87 Ohio St. 3d 295, 1999 Ohio 68, 720 N.E.2d 507, 509-11 (Ohio 1999) (DUI in violation of municipal ordinance); State v. Pratt, 286 Mont. 156, 951 P.2d 37, 43-44 (Mont. 1997) (DUI); State v. Myers, 490 So. 2d 700, 701-03 (La. Ct. App. 1986) (hitting a traffic sign). And the two opinions that we have found that do consider whether the collective-knowledge doctrine applies to misdemeanors both hold that it does. See United States v. Watkins, 243 F. App’x 356, 358 (10th Cir. 2007) (unpublished); State v. Boatman, 901 So. 2d 222, 223-24 (Fla. Dist. Ct. App. 2005). We hold that the collective-knowledge doctrine is not limited to felonies and applies in this case. Poff’s stop of Defendant’s pickup was permissible because Palmer, who requested the stop, had reasonable suspicion of an equipment violation.

[Note: A stop for a traffic offense that did not happen in the officer’s presence may not support the traffic offense under state law if it is separately prosecuted, but, if probable cause for a felony develops, the Fourth Amendment would permit the actual arrest or a search under the search incident or automobile exception, and that would still be valid under Virginia v. Moore.]

Search warrant for defendant’s house and person authorized the search of his person when he was stopped in his car away from the house. State v. Sharp, 281 Neb. 130, 795 N.W.2d 638 (2011):

Based upon this language, we conclude that the search warrant was not narrowly focused on Sharp’s presence at the residence, but was more broadly applicable to the illicit drug activity which he was alleged to be conducting from that residence. The warrant identified three sources of concealed contraband: the residence, the person of Sharp, and the person of Hicks. The use of the phrase “and/or” connecting the place and persons to be searched authorized a search of the residence, both named persons, or any one of the three. And we agree with the district court that there is no language in the search warrant which required that the search of the named persons be conducted at the identified premises. The language of the warrant distinguishes this case from People v. Green and People v Kerrigan, on which Sharp relies. It is closer to the language of search warrants which were held to authorize an off-premises search of named persons in People v Carter, People v. Velez, and People v. Gonzalez. We conclude that the search warrant was personal to Sharp and authorized a search of his person on or off the premises identified in the warrant.

Defendant’s cell phone was validly searched incident to his arrest under Fifth Circuit authority. United States v. Curtis, 635 F.3d 704 (5th Cir. 2011)*:

In United States v. Finley, we held that the police can search the contents of an arrestee’s cell phone incident to a valid arrest. In Finley, the police arrested the defendant after a reverse-sting drug sale. They searched his person following the arrest and seized a cell phone they found in his pocket. The police then transported the defendant to a different location for questioning. During the questioning, the arresting officer scrolled through the text messages on the defendant’s phone. The officer discovered some incriminating text messages that were admitted against the defendant at trial.12 We concluded that the search of the cell phone’s contents was incident to the defendant’s arrest and affirmed the decision not to suppress the text messages.13 The Fourth,14 Seventh,15 and Tenth16 Circuits have reached the same conclusion on similar facts.

12 Finley, 477 F.3d at 254.
13 Id. at 259—60.
14 United States v. Murphy, 552 F.3d 405, 410 (4th Cir.), cert. denied, 129 S. Ct. 2016, 173 L. Ed. 2d 1109 (2009); United States v. Young, 278 F. App’x 242, 245 (4th Cir. 2008) (per curiam) (unpublished).
15 United States v. Pineda-Areola, 372 F. App’x 661, 663 (7th Cir. 2010) (unpublished); see also United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996).
16 Silvan W. v. Briggs, 309 F. App’x 216, 225 (10th Cir. 2009) (unpublished).

Finley forecloses Curtis’s argument that the district court should have suppressed the text messages that were recovered from his phone. Curtis concedes that he was arrested pursuant to a valid Texas arrest warrant and that Edwards recovered the phone from an area that was within Curtis’s reaching distance at the time he was arrested. It is also undisputed that Curtis was still being processed when Edwards scrolled through the text messages.

Defendant ditched his car and ran, so it was abandoned. United States v. Vasquez, 635 F.3d 889 (7th Cir. 2011)*:

The search issue is a dead-bang loser. For one thing, the Bonneville was abandoned, and it’s hard to see, under the circumstances here, how Vasquez could argue with a straight face that he maintained an expectation of privacy in it after he ditched it and bolted off on the run. On top of that, it’s clear that the pursuing police had abundant probable cause to believe that drug money was in the car. What was the probable cause? Well, (1) Cruz told Diaz that Vasquez and Perez had the money with them; (2) no money was found during the searches of Vasquez and Perez; and (3) two drug-detection dogs indicated that there were narcotics in the passenger-side dashboard of the car. The motion to suppress was properly denied.

The police said defendant was in a high crime area, but it was an area with bars and restaurants, and a lot of people walked around there. “Moreover, police did not provide any link between the location and time of night with any alleged criminal activity by defendant. On the whole, the location and timing of where police observed Defendant are not particularly strong facts in support of reasonable suspicion.” United States v. Fox, 2011 U.S. Dist. LEXIS 23949 (D. V.I. March 8, 2011).*

Defendant’s motion to reconsider is denied. Factually, the USMJ was correct on the merits of this alternative ground to sustain the search, and it is, after all, an alternative ground. United States v. Baldenegro-Valdez, 2011 U.S. Dist. LEXIS 24446 (W.D. Mo. March 10, 2011).*

Additional questions adding two minutes to the stop did not make it unreasonable. Defendant conceded that he was stopped validly and that he consented; he argued that the stop was unreasonably extended. United States v. McBride, 635 F.3d 879 (7th Cir. 2011).*

Defendant was belligerent and approached the police on the street, and the officer could see the bulge of a gun under his shirt. Defendant was not detained when he approached the officers first. Then he fled, and he was not detained until they caught up with him. United States v. Jordan, 635 F.3d 1181 (11th Cir. 2011):

Officer Paige got out of his car to investigate further. As he approached Jordan, he noticed a gun-shaped bulge in the defendant’s pocket. With that the officers moved to detain Jordan, but notably, before they could touch him, Jordan took off running. Officer Backmon pursued Jordan on foot, while Paige followed him in the patrol car. Paige, along with some other patrol units, caught up with the defendant, and Paige grabbed him. Paige wrestled with Jordan, who had the firearm in his hand. The officers ultimately wrestled the gun from the defendant, who was then arrested.

First, the officers knew going into the encounter that Jordan was present in an area known for crime. Second, and more significantly, Jordan became suspiciously defensive when confronted about walking in the middle of the street, belligerently yelling that he had not done anything wrong. Third, and most importantly, Officer Paige saw a gun-shaped bulge in Jordan’s pocket. Once the officers became aware of these facts, they had the requisite reasonable suspicion to conduct a Terry stop concerning a potential firearms offense. See Hunter, 291 F.3d at 1306; Reeh, 780 F.2d at 1545.