The fact the officer had reasonable suspicion for five days did not mean that he could not stop the defendant. United States v. Gatewood, 2011 U.S. Dist. LEXIS 41477 (W.D. Tenn. April 15, 2011), R&R 2011 U.S. Dist. LEXIS 41433 (W.D. Tenn. March 8, 2011):

Under Sixth Circuit precedent, the “mere passage of time … does not negate the lawfulness of a stop” that is otherwise justified under the circumstances. United States v. Marxen, 410 F.3d 326, 330 (6th Cir. 2005). “Rather, the time between the commission of the crime and the subsequent stop is simply one factor … to consider in determining whether officers had specific and articulable facts which constituted a reasonable suspicion.” Id. “Hensley is not undermined where … police are not able to locate the suspect … immediately after the [felony] and during a time within which contraband and other fruits of the crime are more likely to be found.” Id. at 330 n.4 (explaining that “the difference in a traffic stop occurring eleven days—as opposed to one or two days—following the criminal activity is not dispositive”).

. . .

… Under the totality of the circumstances, that five days elapsed before Officer Tuznik stopped Gatewood, does not destroy that reasonable suspicion. See Marxen, 410 F.3d at 330. …

Defendant had possession of a vehicle owned by another, but that does not grant him standing, which he did not show. United States v. Varela, 2011 U.S. Dist. LEXIS 41684 (D. Ariz. February 17, 2011).*

Patriot Act Up for Extension: Our Liberties On the Line:

Currently there are nine different bills introduced in Congress, three in the House and six in the Senate, that would extend the provisions of the Patriot Act for one to three years. Four of the Senate bills are already out of committee and scheduled for a vote on the General Calendar. One that sees much press but has no co-sponsors is Sen. Patrick Leahy’s (D-Vt.) S. 193: USA PATRIOT Act Sunset Extension Act of 2011, and is a likely vehicle for furthering the dictates of the original Patriot Act.

All of the proposed measures would extend the most objectionable parts of the Patriot Act; the “lone wolf” provision that permits indiscriminate government surveillance of individuals for no reason; the “library records” provision; and the “John Doe roving wiretap” provision that ignores the Fourth Amendment’s guarantee of probable cause and proper court order.

If a defendant has a right to refuse to talk to an officer during an encounter, his walking away cannot be considered flight under Wardlow. United States v. Saroeuth, 2011 U.S. Dist. LEXIS 40018 (E.D. Pa. April 12, 2011):

The evidence concerning whether Defendant fled is material to the Court’s analysis, as Wardlow indicates that unprovoked flight constitutes evasive behavior, and is a factor in determining whether reasonable suspicion existed, however, mere refusal to cooperate with the police does not support reasonable suspicion. Defendant argues that he was not fleeing the scene, but was merely exercising his lawful right to ignore police questioning and proceed on his way. The Court finds Defendant’s position supported by the aforementioned evidence. As Officer Newell approached Defendant, Defendant opted to ignore Officer Newell and peddle away, which at that point constituted a mere encounter. Thus, the Court cannot factor the Defendant’s provoked flight into its analysis of whether reasonable suspicion existed, as such flight occurred after the officers’ actions which constituted detention of Defendant.

The events leading up to the pursuit included a dispersing crowd in a high crime area, however, the people were walking, and not running away. Thus, no criminal activity was afoot when the officers arrived at the scene. Officer Newell testified that at the time of the incident, it was still daylight.

Further, despite the Officer’s contention that Defendant was agreeable during past interactions, it is unreasonable, and not “commonsense judgment”, as required by Wardlow, for officers to believe that Defendant should display the same agreeable nature under the circumstances on June 22, 2010. …

A typographical error on the issuance of the search warrant would be corrected and ignored. It is clear from the rest of the record when the warrant was issued, and it was before the search occurred, not after. There was a nexus between the heroin trafficking ring defendant was in and keeping drugs at his house. He was also denied a Franks hearing. United States v. Ugochukwu, 2011 U.S. Dist. LEXIS 40171 (N.D. Ohio April 1, 2011).* Also involving a typo on the same date is United States v. Ellis, 2011 U.S. Dist. LEXIS 39781 (N.D. Ga. March 4, 2011).*

While the CI said he saw marijuana plants a week earlier and there was no showing of when that information was received, that did not undermine the search warrant for a grow operation in defendant’s barn. The use of a dog to sniff defendant’s residence was valid under State v. Jardine from Fla. 3d DCA [which the Florida Supreme Court rejected six days later]. State v. Cook, 2011 Ohio 1776, 2011 Ohio App. LEXIS 1528 (5th Dist. April 8, 2011).* [If they had Shepardized Jardine, they would have known that the Florida Supreme Court had already had it under submission. Review was granted June 2, 2009.]

Defendant’s stop and subsequent search incident were lawful, but the officer’s use of defendant’s cell phone was not under State v. Smith, 2009 Ohio 6426, 124 Ohio St.3d 163, 920 N.E.2d 949 (2009). State v. Todd, 2011 Ohio 1740, 2011 Ohio App. LEXIS 1511 (2d Dist. April 8, 2011).*

It was reasonable for the police to conclude that defendant’s girlfriend had apparent authority to consent to a search of the premises. She had just gotten out of the shower, and she had clothes there. The question is not whether she lived there; “the court should have analyzed the evidence using the following legal standard: did the police have an objectively reasonable belief that Crane possessed the apparent authority to give consent to the officers to search the premises?” Since she stated she lived there, that was apparent authority. State v. Wallace, 2011 Ohio 1741, 2011 Ohio App. LEXIS 1518 (2d Dist. April 8, 2011).*

Whether the officer had reasonable suspicion or not, defendant’s flight and abandonment of a baggie of drugs in flight was a waiver of any expectation of privacy. State v. Wynn, 2011 Ohio 1832, 2011 Ohio App. LEXIS 1580 (2d Dist. April 15, 2011).*

A handcuffing is just a seizure and not necessarily an arrest. Commonwealth v. Garrison, 2011 Ky. App. LEXIS 69 (April 15, 2011):

Upon even a cursory review of the above-noted decisions, it becomes clear that our jurisprudence recognizes a distinction between a temporary detention (or “seizure”) and an arrest for purposes of the Fourth Amendment. In the case sub judice, the totality of the circumstances do not support the trial court’s ruling that Garrison was arrested at the moment he was placed in handcuffs.

Defendant was free to go (but not in the officer’s mind, fn. 5), but the officer kept him talking and the subsequent consent was valid. United States v. De Alba-Reyes, 2011 U.S. Dist. LEXIS 41201 (N.D. Ga. February 17, 2011).*

Typographical error as to the city where the property to be searched was located in the warrant was a technical violation since the face sheet had the correct address, which was searched. “Defendant’s motion to suppress because the affidavit and warrant in toto clearly contained sufficient information for the police officers to ascertain the correct address.” United States v. Scott, 2011 U.S. Dist. LEXIS 41633 (E.D. Pa. April 15, 2011).*

An officer who came to the trauma section of Grady Hospital in Atlanta could seize defendant’s clothing in plain view. Defendant had no reasonable expectation of privacy in the ER. United States v. Howard, 2011 U.S. Dist. LEXIS 41211 (N.D. Ga. April 14, 2011):

Here, to the extent Defendant had an actual expectation of privacy, that expectation was unreasonable in light of case law on point and in light of evidence tending to show that Detective Fries was lawfully present in the trauma room where he observed Defendant’s clothing in plain view. Courts in numerous jurisdictions have held that a defendant does not have a reasonable expectation of privacy in an emergency, operation, or—directly on point—trauma room that the defendant shares with other patients and in which medical staff administers critical treatment. See, e.g., Dombrovski v. State, Nos. A-7238, A-4253, 2000 Alas. App. LEXIS 106, 2000 WL 1058953, at *1, 3 (Alaska Ct. App. Aug. 2, 2000) (no reasonable expectation of privacy when police trooper entered a “temporary holding room for emergency treatment,” its door open, and questioned and tested defendant, who was sitting on a hospital gurney while medical personnel walked into and out of the holding room); People v. Torres, 144 Ill. App. 3d 187, 494 N.E.2d 752, 755, 98 Ill. Dec. 630 (Ill. App. Ct. 1986) (no reasonable expectation of privacy in hospital emergency room because the “record contains no suggestion that the defendant was in a position to either permit or deny anyone, including a police officer, access to the emergency room”); State v. Cromb, 220 Ore. App. 315, 185 P.3d 1120, 1122, 1126 (Or. Ct. App. 2008) (no reasonable expectation of privacy in a “curtained off” area of the emergency room that was not open to the general public); State v. Rheaume, 179 Vt. 39, 889 A.2d 711, 714 (Vt. 2005) (no reasonable expectation of privacy in a hospital’s trauma room, located within the emergency room, which was a “freely accessible area over which a patient has no control” (internal quotation marks omitted)).

The Court agrees with these jurisdictions and with Magistrate Judge Brill that Defendant did not have a reasonable expectation of privacy in the Grady Hospital trauma room. Despite the holdings of these courts, Defendant argues that a hospital trauma room “is perhaps more intrusive for third parties to insert themselves there” than in a private hospital room and that only medical personnel should be present [Doc, 4 7 at 15]. This argument is not only foreclosed by the holdings of these courts, but also by the sound reasoning upon which these courts relied, which the Court adopts.

The question is not really Apple having this app on a product. The real question is what the government can do about it. Can the police now search the phone for this information?

On Daily Tech: Apple is Tracking iPhone, iPad Users’ Location; Easily Mapped With OS X App:

Apple users — big brother Jobs is watching you

Pete Warden and Alasdair Allan, a pair of security researchers, have made a discovery about Apple Inc.’s (AAPL) popular iPhone and iPad devices. According to an in depth study they performed, Apple not only tracks its iPhone and iPad users’ every move, but it stores that information in a local file.

According to the researchers, the feature popped up with the release of iOS 4.

It has been known for some time that the iPhones collect data on their user’s position and uses it to target iAds at them. Apple had received a great deal of criticism for doing that. But nobody knew just how far Apple had gone in violating its users’ privacy — until now.

LATimes: iPhone and iPad can track a user’s location history / Security researchers find a hidden data file in the Apple devices that can contain detailed records of user whereabouts.

From Techland: Are Police In Michigan Stealing Cellphone Info? by Graeme McMillan:

Are Michigan State Police breaking the law and illegally obtaining private information from cellphones? Apparently, it’ll cost somewhere around $500,000 to find out.

The Michigan chapter of the American Civil Liberties Union has accused the MSP of using devices to extract information from the cellphones of drivers they’ve pulled over without the owner’s knowledge, thereby violating Fourth Amendment rights. Mark Fancher, an ACLU attorney told reporters that cellphones “can contain information that many people consider to be private, to be beyond the reach of law enforcement and other government actors… There is great potential for abuse here by a police officer or state trooper who may not be monitored or supervised on the street.”

In response, the MSP has issued a statement saying that it will provide information about the devices and what they’ve been used to capture, “in accordance with the Freedom of Information Act,” but added that “there may be a processing fee to search for, retrieve, examine and separate exempt material.” That fee, according to Fancher, has been estimated around $500,000.

When I first read the title of the article, I thought it was a paranoid delusion. Then I see the police admit doing something nefarious. It is in Popular Mechanics, too.

Junichi P. Semitsu, From Facebook to Mug Shot: How the Dearth of Social Networking Privacy Rights Revolutionized Online Government Surveillance, 31 Pace L. Rev. 291 (2011).

Abstract:

Each month, Facebook’s half billion active users disseminate over 30 billion pieces of content. In this complex digital ecosystem, they live a parallel life that, for many, involves more frequent, fulfilling, and compelling communication than any other offline or online forum. But even though Facebook users have privacy options to control who sees what content, this Article concludes that every single one of Facebook’s 133 million active users in the United States lack a reasonable expectation of privacy from government surveillance of virtually all of their online activity.

Based on Facebook’s own interpretations of federal privacy laws, a warrant is only necessary to compel disclosure of inbox and outbox messages less than 181 days old. Everything else can be obtained with subpoenas that do not even require reasonable suspicion. Accordingly, over the last six years, government agents have worked the beat by mining the treasure trove of personal and confidential information on Facebook.

But while Facebook has been justifiably criticized for its weak and shifting privacy rules, this Article demonstrates that even if it adopted the strongest and clearest policies possible, its users would still lack reasonable expectations of privacy under federal law. First, federal courts have failed to properly adapt Fourth Amendment law to the realities of Internet architecture. Since all Facebook content has been knowingly exposed to at least one third party, the Supreme Court’s current Fourth Amendment jurisprudence does not clearly stop investigators from being allowed carte blanche to fish through the entire site for incriminating evidence. Second, Congress has failed to meaningfully revise the Electronic Communications Privacy Act (ECPA) for over a quarter century. Even if the ECPA were amended to cover all Facebook content, its lack of a suppression remedy would be one of several things that would keep Facebook a permanent open book. Thus, even when the government lacks reasonable suspicion of criminal activity and the user opts for the strictest privacy controls, Facebook users still cannot expect federal law to stop their private content and communications from being used against them.

This Article seeks to bring attention to this problem and rectify it. It examines Facebook’s architecture, reveals the ways in which government agencies have investigated crimes on social networking sites, and analyzes how courts have interpreted the Fourth Amendment and the ECPA. The Article concludes with an urgent proposal to revise the ECPA and reinterpret Katz before the Facebook generation accepts the Hobson’s choice it currently faces: either live life off the grid or accept that using modern communications technologies means the possibility of unwarranted government surveillance.

This title link is the article on the Pace Law Review website.

The district court just does not find credible one officer’s assertion that he smelled marijuana after his fourth trip up to the passenger window. Moreover, no marijuana was found in the car. The automobile exception did not support the search. United States v. Crain, 2011 U.S. Dist. LEXIS 40959 (D. Ore. April 14, 2011)*:

A careful review of the totality of the circumstances regarding defendant’s traffic stop fails to support Sergeant Passadore’s assertion that a strong odor of marijuana was detectable on his fourth visit to defendant’s car near the passenger-side window. Sergeant Passadore’s claim that he could smell a strong odor of marijuana is not corroborated by Officer Chastain’s testimony. Officer Chastain never reported a marijuana smell and did not note any odors in his report, even though he was near the passenger-side window during much of the traffic stop. Sergeant Passadore never asked Officer Chastain to confirm the alleged strong odor of marijuana. Additionally, the car windows had been open for at least ten minutes before the strong odor of marijuana was allegedly noticeable to Sergeant Passadore.

Moreover, no significant amount of marijuana was found in the car. Sergeant Passadore admitted that the trace amounts found in the floor boards could not produce a strong odor. He also testified that the alcohol smell did not constitute probable cause for the search, and that he did not smell alcohol on defendant’s breath.

According to AP and the WSJBlog, the Solicitor General has petitioned SCOTUS for cert in the D.C. Cir.’s GPS tracking case. AP’s story:

WASHINGTON (AP) — The Obama administration on Friday asked the Supreme Court to take up an important privacy case for the digital age, whether the police need a warrant before using a global positioning system device to track a suspect’s movements.

The administration is appealing a lower court ruling that reversed a criminal conviction because the police did not obtain a warrant for the GPS device they secretly installed on a man’s car.

The federal appeals court in Washington said that officers violated the Fourth Amendment prohibition against unreasonable searches. Other appeals courts have ruled that search warrants aren’t necessary for GPS tracking.

Prior posts on the speculation about a cert petition are here and here. The case was first posted here.

Update and a brief comment: The petition is not yet on the Solicitor General’s website. I suspect (make that a near certainty), with the split in the circuits, that this case will be taken for review and be the biggest privacy case since Katz and Payton. At least four states have determined that they will go their own way under their state constitutions, likely having no confidence in the Supreme Court to find warrantless GPS tracking unreasonable. With four states already saying a warrant is required, will this motivate SCOTUS their way to avoid a deepening federalism problem or create forum shopping? Forum shopping already happens where evidence would be suppressed under state law but not federal. My clients have lost on that twice.

Add this to the calculus: Privacy and technology issues are running rampant in the lower federal courts over cell phone tracking orders and the like coupled with the failure of statutes passed when technology moved slower and more deliberately to just keep up. Hopefully this case landing in the Supreme Court will at least give Congress something to talk about that is constructive for a change; i.e., the future of electronic privacy in America.

More update: Orin Kerr provided me the link to the Government’s cert petition in his post on Volokh Conspiracy yesterday.

From MIT Press: Surveillance or Security? The Risks Posed by New Wiretapping Technologies by Susan Landau. MIT’s summary:

Digital communications are the lifeblood of modern society. We “meet up” online, tweet our reactions millions of times a day, connect through social networking rather than in person. Large portions of business and commerce have moved to the Web, and much of our critical infrastructure, including the electric power grid, is controlled online. This reliance on information systems leaves us highly exposed and vulnerable to cyberattack. Despite this, U.S. law enforcement and national security policy remain firmly focused on wiretapping and surveillance. But, as cybersecurity expert Susan Landau argues in Surveillance or Security? , the old surveillance paradigms do not easily fit the new technologies. By embedding eavesdropping mechanisms into communication technology itself, we are building tools that could be turned against us.

Such attacks have already happened. Law-enforcement wiretapping capabilities built into the Greek Vodafone network were subverted and used to listen in to communications at the highest levels of the Greek government; a system built for wiretapping Internet-based communications was shown to have serious flaws that would allow a similar subversion. Landau argues that in embarking on an unprecedented effort to build surveillance capabilities deeply into communications infrastructure, the U.S. government is opting for short-term security and creating dangerous long-term risks.

Landau describes what makes communications security hard, warrantless wiretapping and the role of electronic surveillance in the war on terror, the economic threats posed by electronic spying, and the risks created by embedding wiretapping into communications networks. How can we get communications security right? Landau offers a set of principles to govern wiretap policy that will allow us to protect our national security as well as our freedom.

It’s actually cheaper on Amazon.

Officers had a photograph of a suspect they were looking for with an arrest warrant, and they objectively, albeit mistakenly, believed that defendant was the person they were looking for. When they attempted the arrest, defendant fled. The stop was still reasonable. United States v. Phillips, 2011 U.S. Dist. LEXIS 39315 (N.D. Iowa April 11, 2011).*

Defendant did not receive ineffective assistance from defense counsel’s failure to file a motion to suppress a private search of his computer for child pornography authorized by his wife. Price v. United States, 2011 U.S. Dist. LEXIS 39500 (W.D. Mo. April 11, 2011).*

The smell of burnt marijuana on defendant’s person during a traffic stop authorizes a search of the vehicle under the automobile exception, not Gant and search incident. United States v. Kolaczowski, 2011 U.S. Dist. LEXIS 39361 (D. Neb. March 18, 2011).* Essentially the same is United States v. Martinez, 2011 U.S. Dist. LEXIS 39242 (D. Minn. March 17, 2011).*

Search incident to arrest was justified for riding a bicycle without a helmet in violation of city ordinance. State v. Portillo, 2010 Tex. App. LEXIS 3929 (Tex. App. — El Paso April 30, 2010).

Anonymous 911 call did not justify stopping the defendant juvenile just because he was in a high crime area. State v. Eric K., 2010 NMCA 40, 148 N.M. 469, 237 P.3d 771 (2010).*

A protective sweep of the house and garage was justified because the officer had reason to believe that seven people were in the house but only three were accounted for. In the garage were drugs in the truck bed in plain view. United States v. Flores, 380 Fed. Appx. 921 (11th Cir. 2010) (unpublished).*

An employee had no reasonable expectation of privacy in his personnel files against their being used against him in an employment discrimination case. He had to expect the employer would use them. Roberts v. Mentzer, 382 Fed. Appx. 158 (3d Cir. 2010) (unpublished), cert. denied 2010 U.S. LEXIS 8578 (U.S., Nov. 1, 2010).*

The probationer officer’s presence at the police search was subordinate to a police search and made it unreasonable. State v. Bolin, 2010 NMCA 66, 148 N.M. 489, 238 P.3d 363 (2010), Certiorari Denied, No. June 21, 2010, No. 32,416:

[*18] But for the police seeking Valdez on the outstanding warrant and their investigation, probation officers Guy and Carter never would have appeared at Defendant’s doorstep. No home visit had been scheduled for that day and, once at Defendant’s home, police actively participated in questioning Defendant, not only about Valdez’s whereabouts, but about whether Defendant had herself been dealing drugs. Indeed, as Defendant’s arrest warrant makes clear, police had Defendant in custody and were interrogating her while probation officers conducted the first search. When the probation officers’ search revealed contraband, it was Sergeant Rains, not the probation officers on site, who ordered a halt while he could procure a search warrant.

A landlord had an expectation of privacy from a fire marshal’s administrative search, but the case is remanded for a hearing on the scope of the search of a common area. People v. M. Santulli, LLC, 2010 NY Slip Op 20328, 2010 N.Y. Misc. LEXIS 3836 (2d Dept. August 10, 2010).*

Admission of jail telephone calls while the defendant was in pretrial confinement was not a violation of the Fourth Amendment, the state constitution, or the state Abuse of Privacy Act. State v. Johnson, 2010 NMSC 16, 148 N.M. 50, 229 P.3d 523 (2010).*

Defendant was not restrained, and his actions showed her that she wasn’t. State v. Maxie, 235 Ore. App. 49, 230 P.3d 69 (2010)*:

After [Officer] Pontius had written down defendant’s information, he closed his notebook and put it in his pocket, thanked defendant, and walked away. Pontius did not communicate to defendant his intention to make any use of the information, instruct her to remain while he ran a warrant check, or run the warrant check in her presence.

Based on the totality of the circumstances, we conclude that Pontius’s interaction with defendant was a mere conversation and did not impose a restraint on defendant’s liberty or freedom of movement. Because the evidence that defendant sought to suppress was not the product of an unlawful stop, the trial court did not err in denying defendant’s suppression motion.

Defendant’s motion to reconsider the prior unpublished opinion’s conclusion that Gant did not apply because marijuana was the subject of the search is denied. This was an automobile search. State v. Wright, 155 Wn. App. 537, 230 P.3d 1063 (2010).*

Nighttime searches are dangerous and must be limited. However, in this case, the police emptied the house while they waited for a search warrant which arrived at night, so the prohibition on nighttime searches should not apply. State v. Santiago, 2010 NMSC 18, 148 N.M. 144, 231 P.3d 600 (2010):

[*11] As a general proposition, a nighttime search implicates special concerns of privacy and safety–especially when the search is of a home. See Monroe v. Pape, 365 U.S. 167, 210 (1961) (“Searches of the dwelling house were the special object of this universal condemnation of official intrusion. Night-time search was the evil in its most obnoxious form.” (footnote omitted)), overruled on other grounds by Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 658-59 (1978); Jones v. United States, 357 U.S. 493, 498 (1958) (“[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home.”); see also Gooding v. United States, 416 U.S. 430, 464 (1974) (Marshall, J., dissenting) (“[S]earches conducted in the middle of the night … involve a greater intrusion than ordinary searches and therefore require a greater justification.” (internal quotation marks and citation omitted)).

[*12] Chief among these concerns are the “peculiar abrasiveness of official intrusions at such periods,” United States v. Ravich, 421 F.2d 1196, 1201 (2d Cir. 1970), and the heightened “possibility of terror and gunplay which may arise from forcible nighttime entries,” State v. Brock, 653 P.2d 543, 545 (Or. 1982). Courts are aware that a person is especially vulnerable in “the privacy of his place of repose during the nighttime hours,” if he is forced “to face a nocturnal confrontation with the police.” United States v. Jerez, 108 F.3d 684, 690 (7th Cir. 1997) (citing Monroe, 365 U.S. at 210 (Frankfurter, J., dissenting)). Consequently, our Rules of Criminal Procedure require law enforcement to obtain special permission from the issuing judge to serve a warrant after 10:00 p.m.

Defendant here actually got to a Franks hearing on inaccurate statements in the affidavit for the search warrant. The USMJ and District Court concluded that the inaccurate statements were the product of the officer being pressed for time to get the search warrant application together, and it was only a misstatement and not intentional or reckless. Moreover, even if the false statement was intentional or reckless, after purging it from the affidavit, probable cause remains, so the motion was properly denied. United States v. Ross, 400 Fed. Appx. 730 (4th Cir. 2010) (unpublished).* [My view is: if in doubt, give the defendant a Franks hearing. It doesn’t take that long, and it makes resolution of the motion and the appeal far easier. And, based on what I see from the cases, probable cause will usually be found on the remainder of the affidavit for search warrant anyway because Gates makes the question of probable cause so ephemeral anyway.]

Appellant’s Fourth Amendment claim that DHS workers illegally entered or stayed in her house on a home visit that led to a claim of unfit parenting was not within a final appealable order. Bryant v. People, 2010 V.I. Supreme LEXIS 66 (January 15, 2010).*

Defendant’s motion to suppress was denied and appealed, so it cannot be relitigated in a § 2255. United States v. Lopez-Mendoza, 2010 U.S. Dist. LEXIS 117318 (D. Neb. November 3, 2010).*

A tip that the defendant was wanted and was at a particular location with a car was sufficient for a stop when defendant was surveilled, got into the car in the driveway, was followed, and the officer checked and there was, in fact, warrants for the defendant. That is certainly cause for a stop. Sidney v. Commonwealth, 2009 Va. App. LEXIS 600 (August 19, 2009).*

Odor of burnt marijuana in the car was probable cause for its search. [Also, defendant’s reverse 404(b) argument that a prior owner of the car had a bunch of cocaine on him in the car was not relevant because it didn’t have any effect on whether he had marijuana on the day in question.] United States v. Ushery, 400 Fed. Appx. 674 (3d Cir. 2010) (unpublished).*

Defendant’s handing a joint to the officer was probable cause to believe that there was more marijuana in the car. Probable cause is not certainty. United States v. Conerly, 2010 U.S. Dist. LEXIS 120410 (E.D. Mich. October 8, 2010).*

Daughter’s claim of sexual abuse was probable cause for charges to be filed against the plaintiff. He was acquitted at trial. His § 1983 claim that a further investigation was required did not satisfy the “shock the conscience” standard. Livingston v. Allegheny County, 400 Fed. Appx. 659 (3d Cir. 2010) (unpublished):

No genuine issue exists in this case as to whether Appellees’ actions “shocked the conscience.” Appellees’ investigation certainly may have benefitted from additional interviews and evidence collection. Dr. Nathan recommended a forensic interview of B.W. and none was conducted. Appellees did not collect N.W.’s or B.W.’s school and hospital records, or CYF files. Evidence from these records and files would have revealed B.W.’s previous false allegation of physical abuse, CYF’s prior findings of no abuse in the Livingston house, and N.W.’s recent suicide attempt and emotional state. Yet, these failures do not rise to the required culpability standard that their behavior “shocked the conscience.”

The record supports the conclusion that defendant’s wife had actual and apparent authority to consent to the search of their home, and there was no question as to voluntariness of consent. United States v. Stone, 399 Fed. Appx. 684 (2d Cir. 2010) (unpublished).*