Officers came to defendant’s property with a search warrant, and they found him asleep in the car. One officer tapped on the window with a gun to wake him up. Defendant was removed from the car and handcuffed face down on the ground. He refused to consent to a search of the car, and a drug dog was brought in and alerted on the car. It was searched finding 250g of methamphetamine. Defendant’s seizure and detention was valid under Summers as an occupant of the house, albeit outside at the time. United States v. Johnson, 2011 U.S. App. LEXIS 4330 (10th Cir. March 3, 2011) (unpublished):

In light of Summers and Muehler, Mr. Johnson’s first argument is unavailing. As long as a person is an occupant of the premises identified in a search warrant, officers have “categorical” authority to detain him or her for the duration of the search. Id. at 98. Whether the detention in fact facilitates one of the governmental interests acknowledged in Summers—-preventing flight, minimizing risk, or completing the search in an orderly manner—-is irrelevant.

That one officer intended to detain Mr. Johnson for investigative purposes is of no consequence. See Aplt. Br. at 14. The relevant question is whether the officers have the authority to detain a citizen—not their subjective intent in doing so. United States v. Lara-Garcia, 478 F.3d 1231, 1234 (10th Cir. 2007).

National Center for Justice and the Rule of Law has its tenth Fourth Amendment Symposium March 9-11 at the University of Mississippi, this year on digital evidence: The Fourth Amendment: Current Analysis, Views of the Future, And Digital Searches and Seizures. Agenda here.

Case note on People v. Weaver, posted here: Renée McDonald Hutchins, The Anatomy of a Search: Intrusiveness and The Fourth Amendment, 44 U. Richmond L. Rev. 1185 (2010)

Andrew Vahid Moshirnia, Separating Hard Fact from Hard Drive: a Solution For Plain View Doctrine in the Digital Domain, 23 Harv. J. L. & Tech. 609 (2010)

R. Bruce Wells, The Fog of Cloud Computing: Fourth Amendment Issues Raised by the Blurring of Online and Offline Content, 12 J. Const. L. 223 (2009)

Lily R. Robinton, Courting Chaos: Conflicting Guidance from Courts Highlights the Need for Clearer Rules to Govern the Search and Seizure of Digital Evidence, 12 Yale J.L. & Tech. 311 (2010)

The size and breadth of a document seizure does not mean that the warrant was general. United States v. Simpson, 2011 U.S. Dist. LEXIS 20752 (N.D. Tex. March 2, 2011):

Simpson primarily argues that the unprecedented volume of seized evidence supports his argument that the warrants are general warrants. But the unprecedented volume of seized evidence may instead reflect the scope of the alleged conspiracy and the criminal activities, which are factors the court can consider in determining whether the warrant meets the particularity requirement. See, e.g., United States v. Triumph Capital Grp., Inc., 211 F.R.D. 31, 57 (D. Conn. 2002); Andresen, 427 U.S. at 480-82 n.10 (considering complexity of alleged real estate scheme in holding that list of specific items was not general warrant). In short, the broadness or scope of a warrant does not of itself dictate that the warrant is an unconstitutional general warrant.

This warrant was broad, to be sure, but it was not “general.” The warrant was rather specific about what could be searched and seized. Although the description encompassed virtually all of the business records of the corporation, that does not mean that the warrant lacked particularity; it simply means that it was extremely broad.

United States v. Logan, 250 F.3d 350, 363 (6th Cir. 2001) (citation omitted); see also United States v. Smith, 424 F.3d 992, 1006 (9th Cir. 2005) (“The warrant’s Attachment B describes with sufficient specificity the types of documents and property sought. Potentially problematic is its breadth[.]”). Simpson’s argument is therefore misplaced. Particularity does not turn on the volume of what was authorized to be seized or what was seized pursuant to the warrant.

Instead, to determine whether a warrant meets the particularity requirement, the court decides “whether an executing officer reading the description in the warrant would reasonably know what items are to be seized.” Kimbrough, 69 F.3d at 727. (citation omitted). In some situations, the Fourth Amendment is not violated by the use of generic language. “In circumstances where detailed particularity is impossible, generic language is permissible if it particularizes the types of items to be seized.” Id. “There is no requirement that the government agents know in advance the specific items of evidence to be seized or that the items seized do in fact evince a crime, so long as they are within the scope of a properly authorized warrant.” United States v. Cantu, 774 F.2d 1305, 1308 (5th Cir. 1985) (per curiam). A warrant does not need to specifically identify each document to be seized. See Triumph Capital, 211 F.R.D. at 57. The only relevant inquiry is whether, “in light of the nature of the activity under investigation, and the manner of storing the information, [the warrant was] as particular as it could be.” Logan, 250 F.3d at 363; see also Triumph Capital, 211 F.R.D. at 57 (“In determining whether the particularity requirement is satisfied, the court is entitled to place a great deal of weight on whether the warrant is as particular as reasonably could be expected under the circumstances.”). And “[t]he complexity of the crimes under investigation is a factor the court may consider in making this determination.” Triumph Capital, 211 F.R.D. at 57.

[Note: F.R.D. cases are not in Google Scholar.]

A third-party has Rule 41 standing to at least get a hearing on seizure of his property when he is not a target of a criminal investigation. United States v. Begolly, 2011 U.S. Dist. LEXIS 20755 (W.D. Pa. March 2, 2011):

We disagree that such a jurisdictional prerequisite exists before we can consider the merits of Mr. Begolly’s Motion. Rather, we find that where, as here, we have a pre-indictment seizure of property of a third party not under investigation, we must weigh the interests of the government in holding the property against the owner’s rights to use the property,” i.e. is the retention of Mr. Begolly’s property reasonable considering all circumstances. See United States v. Premises Known as 608 Taylor Avenue, Apartment 302, Pittsburgh, Pa., 584 F.2d 1297, 1302 and 1304 (3d Cir. 1978). See also Chaim v. United States, 692 F.Supp.2d 461, 467 (D.N.J. 2010) (when Rule 41(g) motion is filed and there is no pending criminal proceedings against either the movant or the property, then the standard is that set forth in 608 Taylor Ave: whether the government’s continued retention of the property is reasonable under all the circumstances.); Committee Note to 1989 Amendment to Rule 41 (“No standard is set forth in the rule to govern the determination of whether property should be returned to a person aggrieved either by an unlawful seizure or by deprivation of the property. The fourth amendment protects people from unreasonable seizures as well as unreasonable searches, United States v. Place, 462 U.S. 696, 701 (1983), and reasonableness under all of the circumstances must be the test when a person seeks to obtain the return of property. If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable. But, if the United States’ legitimate interests can be satisfied even if the property is returned, continued retention of the property would become unreasonable.”).

Defendant was stopped for no apparent reason and his ID was checked, finding a warrant for his arrest. Under established precedent, the warrant was an intervening circumstance justifying the further detention. State v. Moralez, 44 Kan. App. 2d 1078, 242 P.3d 223 (2010) (over a strong dissent):

In summary, we find the facts herein to be difficult to distinguish from the facts of Martin in any meaningful way. In both cases, the officers encountered a citizen with no suspicion of criminal activity. In both cases, the citizen was presumably unlawfully detained for a brief period of time. In both cases, there was nothing to suggest that the officers’ ultimate goal in contacting the citizen was to search the person for drugs. In both cases the officers requested the citizen’s identification and for no apparent reason decided to run a warrant check. In both cases, the officers detained the citizen until the warrant check was completed. In both cases, the officers discovered an outstanding arrest warrant and searched the citizen incident to the arrest which led to the seizure of evidence of a crime.

In Martin, the court held that the officers’ discovery of the outstanding arrest warrant was an intervening circumstance which sufficiently attenuated the taint of the unlawful detention so as to permit the admission of the evidence. 285 Kan. at 1005. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. … Based on Jones and Martin, we conclude the district court did not err by denying the motion to suppress the evidence.

Search of a vehicle’s “black box” for data a year after an accident was without a warrant and without probable cause. The motorist retained a reasonable expectation of privacy in the data in the recorder even after a year. People v. Xinos, 192 Cal. App. 4th 637 (6th Dist. February 8, 2011):

In California v. Acevedo (1991) 500 U.S. 565 [111 S.Ct. 1982], the U.S. Supreme Court eliminated the warrant requirement for searching a closed container located in a vehicle where probable cause supports a search of the container but not a search of the entire vehicle. (Id. at pp. 573, 576, 579.) But the court emphasized that its holding did not expand the scope of searches permissible under the automobile exception. (Id. at p. 580.) Thus, in Acevedo, “the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana,” which justified a warrantless search of the paper bag. (Ibid.) But “the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.” (Ibid.) Thus, a warrantless search of a vehicle, or the containers within it, under the automobile exception continues to be circumscribed by probable cause. (Ibid.) Its holding indirectly confirms that vehicles continue to be protected by the Fourth Amendment.

We do not accept the Attorney General’s argument that defendant had no reasonable expectation of privacy in the data contained in his vehicle’s SDM. The precision data recorded by the SDM was generated by his own vehicle for its systems operations. While a person’s driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else. But we do not agree with defendant that a manufacturer-installed SDM is a “closed container” separate from the vehicle itself. It is clearly an internal component of the vehicle itself, which is protected by the Fourth Amendment. We conclude that a motorist’s subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle’s SDM.

. . .

The evidence at the suppression hearing established that the vehicle was still being held as evidence of a crime on May 11, 2007 but there had already been a disposition of the case based on “all of the [accident] reconstruction and eyewitness testimony.” The investigating officers had not accessed the data recorder prior to May 11, 2007 because they did not believe it held any relevant data since the airbags had not deployed during the collision. Officer Checke explained, “Prior to going in [on May 11, 2007], we did not believe there would be anything based on the fact that there were no air bags deployed.” Nevertheless, on May 11, 2007, more than a year after the fatal collision, they downloaded the data from the SDM at the request of the District Attorney’s Office. It was only some months later that Officer Checke learned that “a non-deployment event” may register even if air bags do not deploy.

As stated, the scope of a legitimate warrantless search of a vehicle under the automobile exception “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (U.S. v. Ross, supra, 456 U.S. at p. 824; cf. Michigan v. Clifford (1984) 464 U.S. 287, 294 [104 S.Ct. 641] [“If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched”]; Steagald v. U.S. (1981) 451 U.S. 204, 213 [101 S.Ct. 1642] [“A search warrant … is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place”].) The scope of a warrantless search authorized by the automobile exception is “no broader and no narrower than a magistrate could legitimately authorize by warrant.” (U.S. v. Ross, supra, 456 U.S. at p. 825.) Moreover, probable cause to conduct a warrantless search must exist at the time the warrantless search is executed. (See Dyke v. Taylor Implement Mfg. Co. (1968) 391 U.S. 216, 221 [88 S.Ct. 1472] [officers conducting warrantless search of automobile must have “‘reasonable or probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search”]; cf. Sgro v. U.S. (1932) 287 U.S. 206, 210 [53 S.Ct. 138] [Proof of probable cause to support issuance of a warrant “must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time”].)

In cases of fatal collisions between a vehicle and a pedestrian, the particular facts and circumstances may give rise to probable cause to believe the SDM contains evidence of a crime. But in this case, the prosecution failed to show that the objective facts known to the police officers at the time of the download constituted probable cause to search the SDM for evidence of crime. The download occurred long after the collision and criminal investigation. The officers who conducted the download were merely complying with an unexplained request of the D.A.’s Office and believed no relevant data would be found. The download of the data was not supported by probable cause.

Window tinting stop in Kansas was valid, and defendants had no valid state driver’s license. One had a Mexican ID card and the other had a Mexican DL. That justified detaining them to determine whether either could lawfully drive. Calling in a drug dog during the detention was not unreasonable. The window tint violation justified a search incident which was valid under the Tenth Circuit’s Gant good faith case, United States v. McCane, because this search incident predated Gant. (There was, however, no probable cause to arrest for not having a valid driver’s license, but that doesn’t matter in the end.) United States v. Beltran-Palafox, 731 F. Supp. 2d 1126 (D. Kan. 2010).*

Defendant’s guilty plea waived his search issue for appeal, and it was not cognizable in a § 2255 for IAC of defense counsel. His appeal to the Sixth Circuit was dismissed for the same reason. United States v. McCorkle, 2010 U.S. Dist. LEXIS 53844 (W.D. Mich. March 30, 2010).*

Defendants’ stop near the border was justified by reasonable suspicion because of their location in the desert and it being highly unlikely they would be up to anything else. When stopped, the smell of marijuana came from the car. United States v. Ramon, 2010 U.S. Dist. LEXIS 54360 (D. Ariz. May 13, 2010).*

The search of defendant’s car was unreasonable under Gant. While SCOTUS was silent on retroactivity v. applying a good faith exception, the court concludes it must be retroactive. People v. Mungo, 288 Mich. App. 167, 792 N.W.2d 763 (2010), on remand from People v. Mungo, 483 Mich. 1091, 2009 Mich. LEXIS 1343 (2009), appeal granted by People v. Mungo, 789 N.W.2d 666 (Mich., Oct. 29, 2010):

Whether reliance on case law can form a basis to invoke the good faith exception to the exclusionary rule is a significant legal question. The United States Supreme Court is silent on this issue. The Sixth Circuit and Tenth Circuit federal courts of appeal have expanded the good faith exception to apply to a law enforcement officer’s reliance on case law. In McCane and similarly in Lopez, however, it was the clear and established law of the circuit that law enforcement officers were vested with the right to search a vehicle incident to a recent occupant’s arrest. McCane, 573 F3d at 1041-1042 (citing several Tenth Circuit opinions upholding searches without regard to the nature of the offense and where the defendant was already restrained); Lopez III, 655 F Supp 2d at 726 (“Like its sister circuits prior to Gant, the Sixth Circuit recognized as lawful under Belton searches of vehicles conducted incident to an arrest even in circumstances where the arrestee did not have access to the passenger compartment of his car.”). See also Grote I, 629 F Supp 2d at 1205 (noting that at the time the defendant’s vehicle was searched it was “well accepted in the Ninth Circuit and elsewhere” that police could search a motor vehicle incident to a lawful arrest, “without regard to whether an arrestee was secured or unsecured, and without regard to whether evidence particular to the crime of arrest might be found in the vehicle.”).

Assuming without deciding that reliance on Michigan case law can form a basis to invoke the good faith exception to the exclusionary rule, we conclude that the exception does not apply in the present case. Unlike Lopez and McCane, where the case law in each circuit was established and clear, the instant case represented the first published case in Michigan to address the applicability and extension of Belton to a vehicle search solely incident to a passenger’s arrest. Indeed, this panel published our prior opinion in this matter because we concluded this issue presented a matter of first impression in Michigan. Given our conclusion that the law in this state on this point was not established and clear, the search and seizure of evidence from defendant’s vehicle could not, as a matter of law, have been premised on law enforcement’s good-faith reliance on case law. We therefore conclude that the good faith exception to the exclusionary rule has no application in the present case. Pursuant to the retroactivity doctrine, defendant is entitled to have the rule of law announced in Gant applied to this case.

Defendant consented to a search of his campsite for a shotgun by a nod of the head. The court declined to find the area around his campsite was curtilage and not open fields, notwithstanding that there is an expectation of privacy in a camp tent. United States v. Basher, 629 F.3d 1161 (9th Cir. 2011):

Classifying the area outside of a tent in a National Park or National Forest lands campsite as curtilage would be very problematic. A tent is comparable to a house, apartment, or hotel room because it is a private area where people sleep and change clothing. See Gooch, 6 F.3d at 677. However, campsites, such as the dispersed, ill-defined site here, are open to the public and exposed.

In United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), the Supreme Court found that curtilage is defined by reference to four factors: proximity of the area to the home, the nature of the uses to which the area is put, whether the area is included in an enclosure around the home, and the steps taken by the resident to protect the area from observation. Id. at 301. While these factors can be employed with reasonable certainty in the urban residential environment, the analysis does not necessarily carry over to most camping contexts. Parkland campsites often have layouts that are vague or dispersed, and individuals often camp in areas that are not predetermined campsites.

In the case at bar, Basher was staying in a dispersed, or undeveloped camping area. It appears that Basher’s camp was visible from the developed camping area where the officers had stayed the previous night. Therefore, we hold that there was no expectation of privacy in the campsite, and that the area outside of the tent in these circumstances is not curtilage. Accordingly, Struckman does not control the outcome of this case.

The nine-month-old information about defendant having 40,000 pills and $900,000 in cash in his house was not stale, despite the fact there were no facts of anything from then until the warrant issued. United States v. Costa, 736 F. Supp. 2d 859 (D. Del. 2010):

Considering this authority in light of the record at bar, the court finds that the information in the affidavit is not stale. With respect to the “nature of the crime,” the factual allegations in the affidavit, along with the normal inferences that can be drawn from those allegations, demonstrate that defendant was engaged, over several months in 2009, in a significant illegal drug distribution operation involving over 40,000 pills and approximately $900,000. Accordingly, defendant’s continuous course of conduct in a large scale drug operation made it reasonable to conclude that the illegal drug sales would continue beyond September 2009.

The judge’s signing the search warrant as “p.m.” when it should have been “a.m.” was a fatal error under Tennessee law. The affidavit for the warrant was otherwise issued with probable cause, was not stale, and showed nexus. State v. Hayes, 2010 Tenn. Crim. App. LEXIS 729 (August 18, 2010).*

A Fourth Amendment violation can be a part of a malicious prosecution claim. Grider v. City of Auburn, 618 F.3d 1240 (11th Cir. 2010).*

A vehicle “frisk” under Long was impermissible here because the officer’s actions don’t support it. A search incident of the vehicle was valid at the time it was done, but not under Gant. Although the Sixth Circuit hasn’t yet spoken on Gant good faith, this court determines that there is no deterrence by making Gant retroactive, so the search is valid as a search incident. United States v. Bawgus, 2010 U.S. Dist. LEXIS 83084 (E.D. Tenn. May 4, 2010)*:

In addition, the validity of an officer’s protective conduct when evaluated under Terry is “the reasonableness in all circumstances of the particular governmental intrusion of a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S., at 108-109 (1977)(quoting Terry, supra, 392 U.S., at 19). As “the passengers are already stopped by virtue of the stop of the vehicle,” Wilson, supra, at 413-414, “the additional intrusion on the passenger is minimal.” Id. at 415. In this case, the officers did not act reasonably by conducting a “frisk search of the passenger compartment of the vehicle” while leaving the passenger in the vehicle. Asking the passenger to exit the vehicle would have been a minimal intrusion and would have been more likely to assure the safety of the officers if they suspected a weapon was in the vehicle or in the purse of the passenger. The fact that Officer Bowers left the passenger in the vehicle and walked back to talk to Officer Allman, after he had seen the passenger acting suspiciously in trying to retrieve her ID from her purse and after he suspected that she might have drugs or a weapon, flies in the face of assuring the safety of officers and is patently unreasonable.

Weighing all the factors of reasonable suspicion, which was found here, the fact defendants were coming from Phoenix was not indicative of anything, despite it being a “source city.” United States v. Avezov, 731 F. Supp. 2d 1194 (N.D. Ill. 2010).*

Defendant was not seized since he was not stopped by officers who got out of the car and walked up. His behavior became suspicious, and they had reasonable suspicion to frisk the car for a weapon under Long, including a lockbox. United States v. Wubbold, 394 Fed. Appx. 371 (9th Cir. 2010).

Defendant doctor indicted for death of patient by overprescribing consented to the search of his car, and that overcame both his and his wife’s interest in the car’s contents. United States v. Masih, 2010 U.S. Dist. LEXIS 91289 (N.D. W. Va. August 31, 2010).*

In a knock-and-talk (by U.S. Forest Service officers, no less) there is “no meaningful distinction between a request to ‘look around’ and a request ‘to search.’” Defendant consented to the search which was otherwise voluntary on the totality. United States v. Torres-Palomera, 2010 U.S. Dist. LEXIS 91451 (D. Ore. August 31, 2010).*

Defendant’s wife consented to entry of Customs officers in a child pornography investigation. She testified she believed they were looking into some national security offense, and they did not immediately disabuse her of belief. Defendant’s providing the password to the computer and then standing over the officer’s shoulder while the computer was perused was indicative of implied consent. United States v. Pollaro, 733 F. Supp. 2d 364 (E.D. N.Y. 2010):

The court finds that the Agents accurately represented themselves from the beginning as DHS/ICE agents, and did not attempt to mask their identity. (Tr. 70). Although Mrs. Pollaro testified to have interpreted the Agents’ statements to mean there was an issue of national security at hand, the agents made no statements confirming or denying this presumption. (Tr. 71). Moreover, Mrs. Pollaro never testified regarding her suspicions regarding a potential national security issue aloud, giving the agents no reason to know of (or correct) her erroneous belief. Rather, the agents merely informed Mrs. Pollaro of the nature of their visit – to investigate suspicious activity on her home computer, including the possibility of child exploitation, — and the evidence is clear that she willingly assisted them in their undertaking. (Tr. 71).

Even if the court were to give Defendant the benefit of the doubt, finding that the Agents misrepresented their identities (which they did not), the use of trickery or deception in gaining entry into a dwelling does not by itself necessarily violate a defendant’s Fourth Amendment rights. See, e.g., Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966); United States v. Alejandro, 368 F.3d 130, 135 (2d Cir. 2004). In support of this motion, Defendant attempts to compare his situation to that in United States v. Montes-Reyes, 547 F. Supp.2d 281 (S.D.N.Y. 2008), where the court held consent to have been invalid. There, however, the court’s holding as to the invalidity of the consent was based upon the agent’s representation that entry was necessary in connection with the searching for a missing child. See Montes-Reyes, 547 F. Supp.2d at 287-91. The court was careful to distinguish between cases in which “the kind of extreme’ misrepresentation of investigatory purpose by which a person is ‘deprive[d]… of the ability to make ‘a fair assessment of the need to surrender his privacy'” and those in which “the deception in question was the use of an undercover agent who obtained otherwise voluntary consent through the use of his adopted identity.” Id. at 288 (citation omitted). Here, even assuming the validity of Mrs. Pollaro’s unspoken conjecture regarding any issue of national security and the presence of agents in her home, such circumstances would not rise to the level of the extreme deception required to render consent invalid. In sum, for the reasons set forth above, the court holds that the consent to enter the Pollaro’s house was valid.

. . .

Although not necessary to address, the court addresses Defendant’s argument that the search was unlawful because it was commenced before he signed the written consent form. Factually, the court finds Defendant’s version of the events to be highly unlikely, given the credible testimony of the Agents testifying at the hearing. Even if the court were to accept Defendant’s tenuous claim that the written consent form was signed after the search, Agent Handley’s testimony regarding Defendant’s action during the computer search, i.e., that Defendant turned on the computer for the Agent and stood over the Agent’s shoulder during the search, is conduct that a reasonable officer would interpret as implied consent. (Tr. 14). See Buettner-Janusch, 646 F.2d at 764 (“consent may be inferred from an individual’s words, gestures or conduct”).

911 call of a person stuffed in a trunk in Las Vegas in summer was reasonable suspicion because it meant a possible kidnaping. United States v. Chacon, 2009 U.S. Dist. LEXIS 128175 (D. Nev. March 23, 2009):

The touchstone of the Fourth Amendment is reasonableness. Terry-Crespo, 356 F.3d a 1176. Adults do not normally get into automobile trunks voluntarily. They especially do not engage in such conduct on a summer day in Las Vegas, Nevada. The 911 caller’s information that he had just seen a man put a woman in the trunk of a Cadillac therefore clearly raised reasonable suspicion that a kidnaping crime was in progress which required an immediate police response before the vehicle disappeared into traffic or the woman reported to be in the trunk suffered injury or further injury.

Gant retroactively applies, and this USMJ would apply the good faith exception. United States v. Amos, 733 F. Supp. 2d 907 (E.D. Tenn. 2010).*

Entry to retrieve a recently fired gun was either by consent from one with apparent authority or by exigent circumstances. United States v. Skeen, 2010 U.S. Dist. LEXIS 66746 (E.D. Tenn. June 10, 2010).*

Florida holds that state law requires exclusion of evidence obtained in violation of the knock-and-announce requirement. The court is not obligated to follow Hudson under the Fourth Amendment. State v. Cable, 51 So. 3d 434 (Fla. 2010), aff’g Cable v. State, 18 So. 3d 37 (Fla. 2d DCA 2009):

We conclude that Hudson does not control the question of whether the exclusionary rule applies to statutory knock-and-announce violations in Florida because we deem the distinction between common law remedies and constitutional remedies stressed in Cable a meaningful one. As explained by the Second District in Cable:

The issue in the instant case, however, is not—as it was in Hudson-—whether the evidence is subject to suppression under the Fourth Amendment. Instead, the issue is whether suppression of the evidence is a remedy that must be applied for the violation of the statutory knock-and-announce provision. The Florida case law recognizes the common law and constitutional background for the knock-and-announce statute. See Benefield, 160 So. 2d at 710 (stating that section 901.19 “appears to represent a codification of the English common law which recognized the fundamental sanctity of one’s home”); State v. Loeffler, 410 So. 2d 589, 593 (Fla. 2d DCA 1982) (stating that the purpose of the knock-and-announce statute “parallels that of the constitutional guarantees against search and seizure”). But the case law does not support the conclusion that the statute has no force independent of the requirements of the Fourth Amendment. Under the Florida case law, it is by no means clear that the exclusionary rule has been applied to violations of the knock-and-announce statute only because Fourth Amendment knock-and-announce violations were subject to the exclusionary rule. Indeed, Benefield applied the exclusionary rule for violations of the knock-and-announce statute long before the United States Supreme Court decided in Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), that the common law knock-and-announce rule was also a “‘command of the Fourth Amendment.’” Id. at 931 (quoting New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985)).

Cable, 18 So. 3d at 39.

Under Hudson, it is clear that the exclusionary rule does not apply to Fourth Amendment knock-and-announce violations. However, Hudson is not automatically dispositive of the question of whether the exclusionary rule may be applied for violations of Florida’s knock-and-announce statute because, as explained in State v. Slaney, 653 So. 2d 422, 425 (Fla. 3d DCA 1995):

[T]he states are privileged under their state law to adopt higher, but not lower, standards for police conduct than those required by the Fourth Amendment. Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967) (state constitutional provision on search and seizure); Sibron v. New York, 392 U.S. 40, 61, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) (state statute). In Florida, these higher standards may not, as a matter of state law, be imposed under the state constitutional guarantee against unreasonable searches and seizures, Art. I, § 12, Fla. Const. (1982 amendments); Bernie v. State, 524 So. 2d 988 (Fla. 1988), but may be imposed by other provisions of Florida law, including a state statute.

(Emphasis added.) As a matter of state law, a state may provide a remedy for violations of state knock-and-announce statutes, and nothing in Hudson prohibits it from doing so. Benefield was based on state law grounds and not the Fourth Amendment.

Also, the court would not retreat from Benefield.

Singling defendant out in a group of four or five, two officers approached him and accused him of a crime. This was a seizure because a reasonable person would not feel free to disengage from it. Applying the Brown attenuation factors, defendant’s statement is suppressed. United States v. Williams, 615 F.3d 657, 2010 FED App. 0234P (6th Cir. 2010):

Finally, although Vass’s misconduct was not flagrant, his purpose weighs against attenuation. The Supreme Court has explained that the purposefulness factor is met when the unlawful action is investigatory, that is, when officers unlawfully seize a defendant “in the hope that something might turn up.” Brown, 422 U.S. at 605; Shaw, 464 F.3d at 630-31. The purpose of stopping Williams was to seek evidence against him, and toward that end Vass immediately asked several questions related to criminal activity other than trespassing. … Indeed, the warrant and firearm evidence came out only because Vass asked about it. …

P17 The totality of the circumstances, analyzed through the Brown factors, makes clear that there was no attenuation of the connection between Vass’s unconstitutional seizure of Williams and the incriminating evidence. Rather, this case calls for a straightforward application of the exclusionary rule and the related fruit-of-the-poisonous-tree doctrine. Because the incriminating evidence was “come at by exploitation of th[e] illegality” of the seizure, not “by means sufficiently distinguishable to be purged of the primary taint,” Wong Sun, 371 U.S. at 488, the district court correctly suppressed it.

Defendant was illegally arrested in his own home, and the situation was found coercive of his consent, also involving his “young son.” Suppression granted. United States v. Stokely, 733 F. Supp. 2d 868 (E.D. Tenn. June 17, 2010) (R&R), 2010 U.S. Dist. LEXIS 79303 (E.D. Tenn. August 5, 2010), Nunc Pro Tunc to July 16, 2010.

The police did a “knock and talk” and then did a protective sweep without reason. The protective sweep was invalid. United States v. Hassock, 631 F.3d 79 (2d Cir. 2011):

In this case, it is not necessary to determine whether the protective sweep exception is limited to situations involving the execution of legal process (as was the case in Miller) or extends (as the government urges) to any situation where police are lawfully on the premises for a legitimate governmental reason antecedent to the sweep. Certainly the agents here had no legal process and, although they went to the Hassock apartment with a legitimate purpose — the questioning and possible arrest of Hassock — when Hassock did not answer the door, that purpose could not be pursued until Hassock was found. Under these circumstances, the sweep cannot be viewed as a reasonable security measure incident to Hassock’s interrogation or arrest. Instead, the “sweep” itself became the purpose for the agents’ continued presence on the premises insofar as they thereby searched the location for Hassock. As the district court found, it may have been objectively reasonable for agents to think that Hassock’s presence on the premises posed a danger to their safety. See United States v. Hassock, 676 F. Supp. 2d at 158-59. But a protective sweep is reasonable only to safeguard officers in the pursuit of an otherwise legitimate purpose. Where no other purpose is being pursued, a sweep is no different from any other search and, therefore, requires a warrant, exigency, or authorized consent, none of which were present here. Specifically, it was not apparent to the agents of the task force that the young woman who admitted them to the apartment was clothed with any authority that would allow her to consent to a search of the premises. Her discussion with the agents was very brief — she said she had just awakened, that she did not know who was present in the apartment, and answered in the affirmative in response to an agent’s request to “look around.” It was not until after the search was complete that the agents spent some time with the woman, learned her identity, her relationship with the co-tenant of the apartment, and other information. And so it was that, with the limited information available and without ascertaining the woman’s authority to consent, the officers pressed forward in a search for Hassock. (The government concedes that there was no authority of any kind to enter Hassock’s bedroom). The original purpose of the “knock and talk” thereupon became an illegitimate search for Hassock incident to no other lawful police conduct, which cannot be characterized as a protective sweep.

In a Medicaid fraud investigation, the affidavit showed probable cause for search of defendant’s house for evidence of the crime. The search for records could be intensive to look for the incriminating nature of the documents which would be readily apparent to a trained Medicaid fraud investigator. United States v. Gil, 2011 U.S. Dist. LEXIS 20638 (S.D. Fla. January 12, 2011)*:

Here, the federal agents inside defendant’s residence satisfied all three requirements for seizure of the subject documents under the “plain view” exception. First, they were lawfully inside defendant’s residence with a properly obtained search warrant as explained above. Second, the subject documents, including insulin logs, weekly visits/time records, and patient evaluation forms, were discovered inadvertently in files and in other locations where a passport might be found. Third, and most critically here, the “incriminatory character” of the subject documents was immediately apparent to Special Agent Shimpeno based on her extensive experience with identical documents in other Medicare investigations. Special Agent Shimpeno testified that she came across these documents while looking for defendant’s passport in files located in the residence and immediately recognized their relevance as evidence merely by “glancing” at the documents and noting that they were incompletely filled out and lacked required information. In the agent’s experience, such documents with missing information are frequently used to submit false Medicare claims. Special Agent Shimpeno did not need to read or closely examine the documents to determine their incriminatory character. Rather, she knew “from a glance” that the items were evidence relevant to this particular Medicare investigation.

Defendant’s Fourth Amendment claim as to his arrest was barred in § 2255 because of his guilty plea and Stone v. Powell. Castillo-Perez v. United States, 2011 U.S. Dist. LEXIS 20492 (M.D. Fla. February 17, 2011).*

Defendant’s motion to suppress consent to recordings was denied without prejudice. The government claims that the motion should be denied because the CI was hidden by it and this was a mere fishing expedition, but the defense has to file a motion to suppress before trial. Crediting that there is some fear for the witness, the issue can be brought up at trial. United States v. Speciale, 2011 U.S. Dist. LEXIS 20187 (N.D. W.Va. February 14, 2011).*