The law of misdemeanor strip searches not well settled in 2002, and so the jailers have qualified immunity from suit. But, there is a biting dissent. Bame v. Dillard, 09-5330 (D.C. Cir. March 25, 2011):

The named plaintiffs filed this class action suit for damages against Todd Walther Dillard, a former United States Marshal for the Superior Court of the District of Columbia, claiming that, after being arrested during a demonstration in September 2002, they were unconstitutionally strip searched by Deputy U.S. Marshals under Dillard’s direction. According to the plaintiffs, caselaw had by then clearly established that the Fourth Amendment to the Constitution of the United States prohibited strip searching a person arrested for a non-violent, non-drug related misdemeanor absent a particularized reason to suspect the arrestee was concealing contraband or weapons about his person. Dillard moved for summary judgment based upon qualified immunity, and when the district court denied that motion, brought this interlocutory appeal. We conclude it was not clearly established in 2002 that the strip search of a person being introduced into a detention facility violated the Fourth Amendment. Therefore, Dillard is entitled to qualified immunity and to summary judgment.

. . .

ROGERS, Circuit Judge, dissenting: Contrary to the principles underlying qualified immunity as a limitation on the occasions when liability for unconstitutional conduct by a public official will be excused, the majority holds the conduct is to be evaluated by recently articulated law and not, as the Supreme Court has instructed, by the clearly established law reflected in the consensus of persuasive authority at the time of the conduct. In so doing, this is the first time a circuit court of appeals has suggested that the protections of the Fourth Amendment to the Constitution against unreasonable searches do not extend to an individual arrested for a non-violent minor offense who is awaiting arraignment apart from the general population of detainees, and is subjected to a strip search in the absence of reasonable suspicion he is hiding contraband or weapons. This runs contrary to the consensus of ten circuit courts of appeals at the time of the challenged strip searches. To reach this result the majority tramples over Supreme Court precedent and gives short shrift to the protections of the Fourth Amendment. Accordingly, I respectfully dissent.

Irony alert: The majority opinion was written by the same judge who wrote the Maynard GPS case.

St. Louis police officers are suing in federal court concerning department efforts to get their cell phone records where some forwarded cell phone pictures of a police shooting victim who died when a U.S. Marshal was killed there. See St. Louis officers sue to block search of cell phones over body picture. A hearing is scheduled for Monday.

From an IT blog, itgrunts.com, almost certainly not from a lawyer, but still worth noting: Fourth Amendment Violation? Hard drive Search Warrants Legal?

AP: South Dakota man says police violated his rights by putting tracking device on his car.

Pennsylvania Considers Bill Requiring Pre-Trial DNA Testing by Stephen Clark on FoxNews.com:

Pennsylvania is considering a bill that would expand the authority of police to collect DNA from suspects arrested for serious crimes — to be used to find links to other open cases unrelated to the arrest.

A similar federal law has already been struck down by a district court, which declared it unconstitutional.

My own state has such a law, and it provides for taking DNA on arrest for certain crimes without ever showing probable cause to a judicial officer first. I spoke against the bill, but, the Arkansas legislature being the way it is, they don’t care whether it is constitutional if it is for crime control.

From OnPoint via PogoWasRight: Texas Teen Scores Legal First in ‘Sexting’ Privacy Case that a school official could not search her cell phone without reasonable suspicion.

Removing the person who should be asked for consent violates Randolph. Asking a least plausible person violated the Fourth Amendment. United States v. Butler, 2011 U.S. Dist. LEXIS 28871 (S.D. Tex. March 21, 2011):

Despite the legal nuances that are used to justify eroding the Fourth Amendment, a stop is an arrest. The word itself comes from un arrêt — the French word for stop. Once an officer turns on his car’s blue lights behind your car, you are not free to leave. This is obvious. If you do not stop and submit to the officer’s direction, he chases you and charges you with evading arrest — not evading a conversation.

Once the officers arrived at his house, Hornbeak had come to a stop. With more than ten armed men in his house and helicopters above, he was not free to leave. He had been arrested and arrested on a warrant.

. . .

The absence of a potentially objecting co-tenant must be natural and not contrived. The police may not remove all the co-tenants except the one whom they believe to be the most malleable. If the police have removed someone because they suspect he may object, the search is unreasonable. Georgia v. Randolph, 547 U.S. 103, 121 (2006).

The agents wanted to search Hornbeak’s house. The agents had grounds to get an arrest warrant. The government has offered no explanation for its not having sought a search warrant. Instead of getting a search warrant, they arrested Hornbeak. They pulled him away from his house and asked a casual guest for permission. Instead of asking Hornbeak to consent to a search as he stood in his bedroom surrounded by a dozen officers, the agents removed him. Once he was gone, they asked for Redding’s permission. She gave it. The conclusion is that the agents removed Hornbeak to avoid his objection. That is illegal.

[Note: This opinion is from USDJ Lynn N. Hughes, who I thank for his clarity and conciseness.]

By the time defendant’s stop was completed and the papers were being handed back to him, the officer likely had reasonable suspicion, but then the defendant volunteered why he took the exit he was stopped at, which made no sense. There was reasonable suspicion for additional questioning. United States v. Roberts, 2011 U.S. Dist. LEXIS 28591 (D. Mont. March 16, 2011).*

Defendant’s search warrant issue was litigated in the District Court before conviction, and counsel was not ineffective for not appealing it because it was clearly a losing issue. Brooks v. United States, 2011 U.S. Dist. LEXIS 28400 (S.D. W.Va. February 15, 2011).*

Florida Gov. Rick Scott orders random drug testing of state employees / Gov. Rick Scott’s executive order requires quarterly drug tests; ACLU says courts have already found similar attempts unconstitutional by David Royse from the Orlando Sentinel:

Gov. Rick Scott signed an executive order Tuesday that will require random drug testing of many current state employees as well as pre-hire testing for applicants.

“Floridians deserve to know that those in public service, whose salaries are paid with taxpayer dollars, are part of a drug-free workplace,” Scott said. “Just as it is appropriate to screen those seeking taxpayer assistance, it is also appropriate to screen government employees.”

The reference to taxpayer assistance referred to a push by Scott and legislative Republicans to require those who apply for state benefits under the Temporary Assistance to Needy Families program to submit to a drug test before getting benefits. That proposal (SB 556) was approved unanimously Tuesday by the Senate Criminal Justice Committee. It has another stop before the Senate floor.

[Update: There is a bill in the Arkansas legislature this year to drug test all candidates for office, contrary to Chandler v. Miller. While some people complain about “big government,” those same people want that government in our lives and have never read the Fourth Amendment or cases. The Arkansas bill failed in committee.]

Eugene Volokh, Four Justices on the Fourth Amendment, on Volokh Conspiracy:

An interesting statement respecting the denial of certiorari today in Huber v. N.J. Dep’t of Environmental Protection:

Statement of Justice Alito, with whom the Chief Justice, Justice Scalia, and Justice Thomas join, respecting the denial of certiorari.

Our cases recognize a limited exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.” See, e.g., New York v. Burger, 482 U. S. 691, 699–703 (1987) (internal quotation marks omitted). The thinking is that, other things being equal, the “expectation of privacy in commercial premises” is significantly less than the “expectation in an individual’s home.” Id., at 700. And where a business operates in an industry with a “long tradition of close government supervision” — liquor dealers and pawnbrokers are classic examples — the expectation of privacy becomes “particularly attenuated.” Ibid. (internal quotation marks omitted).

. . .

During a protective sweep on specific facts, a gun was seen in plain view. It was not seized, but a consent was obtained for the gun and it was retrieved. The consent was valid, too. “The facts in this case mirror, virtually precisely, the facts in [United States v. Gandia, 276 Fed.Appx. 10 (2d Cir. 2008)], and even more so.” United States v. Aguilar, 2011 U.S. Dist. LEXIS 23120 (E.D. N.Y. March 8, 2011).*

The officer developed reasonable suspicion after a valid traffic stop, and he called in a drug dog which alerted. This was not a search incident, but a search under the automobile exception. United States v. Riley, 2011 U.S. Dist. LEXIS 23394 (W.D. Mo. February 4, 2011), adopted 2011 U.S. Dist. LEXIS 23400 (W.D. Mo. March 8, 2011).*

Defense counsel was not ineffective for counseling defendant to plead guilty to get the three points for acceptance of responsibility when the defense was pretty much that the police were in a conspiracy to convict him and no viable motion to suppress existed. Herring v. United States, 2011 U.S. Dist. LEXIS 23657 (S.D. Ga. March 1, 2011).*

Getting no answer at defendant’s door, believing someone inside, the officer went down the driveway to the side door and saw a shell casing in plain view. This was not an illegal entry onto the curtilage. There was no privacy fence blocking anyone’s view. “Absent a warrant, police have no greater rights on another’s property than any other visitor has. Thus, it has been held that the only areas of the curtilage where officers may go are those impliedly open to the public.” State v. Tallent, 2011 Ohio 1142, 2011 Ohio App. LEXIS 947 (6th Dist. March 11, 2011).*

The trial court’s findings that there was no evidence of defendant’s bad driving was not supported by the record, so the suppression order is reversed. State v. Liscoe, 2011 Ohio 1054, 2011 Ohio App. LEXIS 904 (9th Dist. March 9, 2011).*

Defense counsel was not ineffective for not challenging the search of his vehicle that was clearly with probable cause after his admissions of meth use. State v. England, 2011 Ohio 1144, 2011 Ohio App. LEXIS 949 (6th Dist. March 11, 2011).*

Cracked windshield did not justify a stop where the state could not show with photographs that the crack impaired the driver’s ability to see to drive. Suppression affirmed. State v. McWhorter, 2011 Ohio 1074, 2011 Ohio App. LEXIS 933 (8th Dist. March 10, 2011).*

Defendant police officer had no reasonable expectation in a thumb drive that he left attached to a computer at the police station that had no identifying marks on it and was not encypted. He stored police reports on it. When the thumb drive was found in the computer, it was opened by another to figure out who owned it, and child pornography was found on it. Miller v. State, 2011 Tex. App. LEXIS 1752 (Tex. App.—Austin March 9, 2011):

The first factor supports Miller’s position. Miller testified that the thumb drive was his “private possession,” and the State did not dispute this fact. Thus, Miller had a possessory interest in the thumb drive. However, the other relevant factors weigh against a finding of objective reasonableness. Although Miller testified that he did not share his thumb drive with others, he also testified that he had given Lieutenant Corbett permission to return the thumb drive to his box if it was ever found. Miller had left the drive at work on multiple occasions, and the drive was returned to him on those occasions. The district court could have reasonably inferred that in order to return the drive to Miller, others must have taken temporary possession of the drive and possibly accessed it to ascertain whether it belonged to Miller. Thus, Miller did not exercise complete dominion or control over the drive, at least during the times he had misplaced it. The record also supports a finding that Miller did not take precautions to maintain his expectation of privacy. Again, Miller did not mark the drive with his name, badge number, address, or telephone number. And, despite his knowledge of computers, Miller did not protect his drive with a password or secure the drive in a locked case. Instead, on the occasion in question, Miller left the drive connected to the patrol-room computer where it was easily accessible to others. Furthermore, Miller also testified that he used the thumb drive for storing police activity reports, which the district court could have reasonably inferred was not a private use. Finally, Miller’s claim of privacy in a computer device that stores work-related data is not consistent with historical notions of privacy. See, e.g., Voyles v. State, 133 S.W.3d 303, 306 (Tex. App.—Fort Worth 2004, no pet.) (concluding that appellant “did not have a reasonable expectation of privacy with regard to his work computer and the materials stored in it” because, among other reasons, computer was used for work-related purposes).

Officers had reason to believe that defendant probationer lived where he had a key and was seen entering. His slamming the door on the officer’s arm also was probable cause that he was resisting. United States v. Asprilla, 2011 U.S. Dist. LEXIS 24861 (N.D. Cal. March 8, 2011).*

“In the present case, Detective Hunter’s affidavit in support of the search warrant reports that Agent Andrews had received information regarding a marijuana grow operation at the property, smelled raw flowering marijuana coming from an outbuilding on the property, observed black pots and pipes at the property, which appeared to be an inactive plant nursery, and therefore believed that the outbuilding and residence were being used to cultivate marijuana.” United States v. Williams, 2011 U.S. Dist. LEXIS 25503 (S.D. Ga. January 12, 2011).*

Defendant’s ineffective assistance claim about defense counsel’s handling of the search issue was unavailing. There was clearly probable cause for issuance of the warrant, the use of CI information was not deficient, and the officer’s failure to knock-and-announce, even if true, would not result in suppression. The IAC claim was essentially conclusory. Byrd v. United States, 2011 U.S. Dist. LEXIS 24938 (W.D. N.C. March 10, 2011).*

There was probable cause for a removal of a child from the home because of an alleged imminent danger. The caseworker’s own deposition did not help her on that point, but the court found the risk of danger sufficient. Siliven v. Ind. Dep’t of Child Servs., 2011 U.S. App. LEXIS 5140 (7th Cir. March 16, 2011).*

Defendant’s broad challenge to his search warrant after his guilty plea failed. State officers don’t have to comply with Rule 41, the failure to knock-and-announce was excusable here, and wouldn’t lead to suppression anyway. Usually, the failure to file a suppression motion is tactical. Here, it would have failed anyway. Hegmon v. United States, 2011 U.S. Dist. LEXIS 25873 (S.D. W.Va. February 18, 2011).*

In an immigration “sweep” at Omaha Steaks in Omaha, of all places, an undocumented worker who volunteered her documentation was in her car and walked with the police to the car showed voluntariness of consent. United States v. Gomez-De La Cruz, 2011 U.S. Dist. LEXIS 25603 (D. Neb. January 21, 2011).*

The officers’ first entry into defendant’s premises was without exigent circumstances since they were not articulated. Therefore, the entry was in violation of the Fourth Amendment. A second entry was valid. United States v. Medina, 2011 U.S. Dist. LEXIS 25965 (E.D. Wis. March 11, 2011), adopting R&R 2011 U.S. Dist. LEXIS 25597 (E.D. Wis. January 13, 2011):

The government also asserts that exigent circumstances existed because Agent Hale was concerned about officer safety, but does not elaborate on the basis for that concern. This is especially relevant because at the time of Special Agent Hale’s entry, all of the agents on the scene were on the street and not in the residence. They had already detained all the individuals on the street. According to the testimony, they were waiting for the arrival of the defendant’s vehicle and the defendant. Moreover, Agent Hale did not articulate a specific reason for his concern for officer safety when asked to expand upon this at the hearing. The exigent circumstances standard requires more than not knowing if an individual will cause harm or present a threat to officer safety. Rather, “an objective standard governs the reasonableness of law enforcement officials’ belief that exigent circumstances have arisen.” Patino, 830 F.2d at 1415. Given the facts in evidence, this court finds that the government has not established an objectively reasonable belief that exigent circumstances based on officer safety concerns warranted entering the defendant’s home.

DWI is sufficiently serious a crime, noting Welsh, that exigent circumstances are possible, but there are no bright line rules. A warrantless entry might be reasonable under the circumstances. State v. Nance, 2011 N.M. App. LEXIS 14 (March 15, 2011):

P19 Perhaps because reasonableness is the touchstone of the Fourth Amendment inquiry, courts have resisted fashioning per se rules authorizing warrantless home entry based only upon the dissipation of alcohol. For example, while the United States Supreme Court in Welsh stated that “a warrantless home arrest cannot be upheld simply because evidence of the petitioner’s blood-alcohol level might have dissipated while the police obtained a warrant,” it was careful to repeatedly qualify this statement as applying only in light of the fact that Wisconsin had chosen to classify a first offense DWI as a non-criminal civil forfeiture offense for which no imprisonment was possible. Welsh, 466 U.S. at 754. Similarly, while the United States Supreme Court in Schmerber approved of a warrantless blood test due to exigent circumstances, which included the dissipation of blood alcohol, 384 U.S. at 770-71, the Court explicitly limited the decision to the facts, noting that “[t]he integrity of an individual’s person is a cherished value of our society” and that the holding “that the Constitution does not forbid the State’s minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” Id. at 772; see also State v. Richerson, 87 N.M. 437, 441, 535 P.2d 644, 648 (Ct. App. 1975) (recognizing that, in addition to dissipation of alcohol, Schmerber also requires a valid arrest and probable cause before a warrant may be dispensed with).

P20 We have previously addressed the question of whether the metabolization of alcohol created an exigent circumstance. In Copeland, a drunk driver struck and killed a police officer in a hit and run accident. 105 N.M. at 29, 727 P.2d at 1344. Police developed a description of the vehicle from evidence found at the scene of the accident, and the vehicle was found at a nearby motel. Id. at 29-30, 727 P.2d at 1344-45. Officers traced the vehicle to a specific room, but nobody answered when the officers knocked on the door. Id. at 30, 727 P.2d at 1345. It had been about two-and-one-half hours since the accident, and officers were concerned that they might lose their opportunity to obtain evidence of whether the driver was intoxicated. Id. Police broke the chain lock on the door, entered the room, and arrested the defendant, who subsequently registered a blood alcohol level of approximately 0.20. Id.

SCOTUSBlog: Davis v. United States Argument recap: Selling complexity / The Court explores a professor’s complex argument to protect the integrity of the Court’s Fourth Amendment precedents:

It was a complex argument, all about the Court preserving the integrity of its constitutional decision-making, that professor Orin S. Kerr offered to the Justices in Davis v. U.S. (09-11328). And its complexity stood out in quite vivid contrast to the simple — even simplistic — argument that a Justice Department lawyer would make.

While Kerr was at the lectern, the skepticism about his theme ran back and forth across the bench. Still, he was making his points and, as the argument moved on, it became evident that Kerr had stirred some interest, perhaps even sympathetic interest — from several Justices, perhaps most notably Justice Anthony M. Kennedy, often the holder of a decisive vote. He also heard, from Justice Elena Kagan, a compromise way that he could win.

The Davis case is about the so-called “exclusionary rule,” a judge-made doctrine that bars evidence from criminal trials if police got it while violating the Fourth Amendment. Davis focuses specifically on whether the Court will benefit police by expanding one significant exception to that rule: the doctrine that the evidence can be used anyway, if police got it in “good faith,” believing at the time that what they did was legal.

Running a dog around defendant’s car before the purpose of the traffic stop was even complete was not unreasonable. State v. Latona, 2011 Ohio 1253, 2011 Ohio App. LEXIS 1065 (5th Dist. March 16, 2011):

[*P27] We also find that at the time Trooper Norman walked his dog around Appellant’s vehicle, Trooper Norman had not fulfilled the purpose of the initial stop in that Trooper Norman was waiting for the information to return from the dispatch and he had not cited Appellant for the marked lanes violation. The United States Supreme Court has stated that a dog sniff does not constitute a search. United States v. Place (1982), 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110. Thus, because a dog sniff is not a search, “an officer need not have formed a reasonable suspicion that drug-related activity is occurring in order to request that a drug dog be brought to the scene or to conduct a dog sniff of the vehicle.” Guckert, supra [2000 WL 33226314] citing State v. Keller (Jan. 14, 2000), Montgomery App. No. 17896. Thus, when a motorist is lawfully detained pursuant to a traffic stop and when the purpose of the traffic stop has yet to be fulfilled, the Fourth Amendment is not violated when the officer employs a trained narcotics canine to sniff the vehicle for drugs. Guckert, supra.

[So, in Ohio, it apparently is permissible to use a dog during any traffic stop.]

Defendant’s arrest was for criminal trespass, so a search incident was invalid under Gant. Defendant’s car was legally parked, so impounding the car and inventorying it was unreasonable. A general claim the good faith exception should apply was also rejected. State v. Dent, 2011 Ohio 1235, 2011 Ohio App. LEXIS 1069 (8th Dist. March 17, 2011)*:

[*P16] In the instant case, Lasker testified that he arrested Dent for criminal trespass and inventoried the Pontiac prior to the tow. However, the Pontiac was legally parked at the time of Dent’s arrest and would have been legally parked until 3:00 a.m. “‘This court has held that police may not seize a defendant’s car and conduct an inventory search following a defendant’s arrest where it was legally parked and no public concern existed which required the removal of the car from its legally parked place.’” State v. Clay, Cuyahoga App. No. 91942, 2009 Ohio 2725, ¶26, quoting State v. Ross (May 20, 1993), Cuyahoga App. No. 62215. See, also, State v. Thomas, Cuyahoga App. No. 91891, 2009 Ohio 3461. Furthermore, Dent was secured in the back of the police cruiser and no longer posed a risk to officer safety when Lasker searched the Pontiac, and there is no evidence in the record that Lasker reasonably believed that the vehicle contained evidence of criminal trespass (entering or remaining on the land of another).

[*P17] Based on these circumstances, we find the search of the vehicle was not permitted under Gant. Thus, the trial court properly granted Dent’s motion to suppress.

[*P18] In the alternative, the State argues that even if the inventory search was improper, the search is saved by the good-faith exception to the exclusionary rule. We disagree. …