The IP address associated with a house and a subscriber is nexus for a search warrant for the house when child pornography is associated with the IP address. Also, there is no reasonable expectation of privacy in subscriber information under the Indiana Constitution, which has already been decided against him there. Rader v. State, 932 N.E.2d 755 (Ind. App. 2010):

Here, the probable cause affidavit explained that the subpoena return from Yahoo! revealed that the account for “monty20064” was registered in Monty Rader’s name, and further listed the IP address used to log in to the account on the dates in question. These assertions are supported by the record. The probable cause affidavit further explained that the subpoena return from the ISP for the relevant IP address indicated that the same IP address that had been used to log in to the monty20064 account was “associated with” the address 829 East Washington Street in Greenfield, which the affidavit further explained was Rader’s home address. Appellant’s App. p. 149. This too is supported by the materials in the record.

The defendant’s probation search was called an “administrative search,” so you know where the case was going. The merits of the search was not at issue. United States v. Gavin, 394 Fed. Appx. 643 (11th Cir. 2010).*

California holds that a cell phone text message folder can be seized incident to arrest, 90 minutes into the arrest finding “binding Supreme Court authority,” albeit cases from the ’70’s before cell phones were even imagined. The police arrested the defendant after listening to an ecstacy sale on a wire. The cell phone was removed from his person. At the police station, the officer manipulated the phone to find the text message folder which had incriminating messages. People v. Diaz, 51 Cal. 4th 84, 244 P.3d 501, 119 Cal. Rptr. 3d 105 (2011):

Resolution of this issue depends principally on the high court’s decisions in Robinson, Edwards, and Chadwick. In Robinson, a police officer arrested the defendant for driving with a revoked operator’s permit. (Robinson, supra, 414 U.S. at p. 220.) The officer conducted a patdown search and felt an object he could not identify in the breast pocket of the defendant’s coat. He removed the object, which turned out to be a crumpled up cigarette package. He felt the package and determined it contained objects that were not cigarettes. He then opened the package and found 14 heroin capsules. (Id. at pp. 222-223.) The high court held that the warrantless search of the package was valid under the Fourth Amendment. (Robinson, supra, at p. 224.) It explained that, incident to a lawful custodial arrest, police have authority to conduct “a full search of the [arrestee’s] person.” (Id. at p. 235.) This authority, the court continued, exists whether or not the police have reason to believe the arrestee has on his or her person either evidence or weapons. “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search [of the person] incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and … in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” (Ibid.) Applying these principles, the court held: “The search of [the defendant‟s] person … and the seizure from him of the heroin, were permissible under established Fourth Amendment law. … Having in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct. [Citations.]” (Id. at p. 236, fns. omitted.)

In Edwards, after lawfully arresting the defendant late one night for attempting to break into a post office, police took him to jail and placed him in a cell. (Edwards, supra, 415 U.S. at p. 801.) Ten hours later, suspecting that his clothes might contain paint chips from the window through which he had tried to enter, police made the defendant change into new clothes and held his old ones as evidence. (Id. at p. 802; see also id. at p. 810 (dis. opn. of Stewart, J.).) Subsequent examination of the old clothes revealed paint chips matching samples taken from the window. (Id. at p. 802.) The high court held that both the warrantless seizure of the clothes and the warrantless search of them for paint chips were valid as a search incident to lawful arrest. (Id. at pp. 802-809.) It expressly rejected the argument that, because the search occurred “after the administrative mechanics of arrest ha[d] been completed and the prisoner [was] incarcerated,” the search of the clothes was too remote in time to qualify as a search incident to arrest. (Id. at p. 804.) The court explained: “[O]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.” (Id. at pp. 807-808, fns. omitted, italics added.)

. . .

Under these decisions, the key question in this case is whether defendant’s cell phone was “personal property … immediately associated with [his] person” (Chadwick, supra, 433 U.S. at p. 15) like the cigarette package in Robinson and the clothes in Edwards. …

. . .

Moreover, in analogous contexts, the high court has expressly rejected the view that the validity of a warrantless search depends on the character of the searched item. …

. . .

Regarding the particular focus of defendant and the dissent on the alleged storage capacity of cell phones, for several reasons, the argument is unpersuasive. First, the record contains no evidence regarding the storage capacity of cell phones in general or of defendant’s cell phone in particular. Second, neither defendant nor the dissent persuasively explains why the sheer quantity of personal information should be determinative. Even “small spatial container[s]” (dis. opn. of Werdegar, J., post, at p. 3) that hold less information than cell phones may contain highly personal, intimate and private information, such as photographs, letters, or diaries.

Also note 6:

Given our conclusion, we need not address the People‟s argument that an exigency existed because a cell phone‟s contents “are dynamic in nature and subject to change without warning — by the replacement of old data with new incoming calls or messages; by a mistaken push of a button; by the loss of power; by a person contacting the cellular phone provider; or by a person pre-selecting the “cleanup‟ function on the cellular phone, which limits the length of time messages are stored before they are automatically deleted.” We note, however, that the People have offered no evidence to support this claim. Nor have they offered evidence as to whether text messages deleted from a cell phone may be obtained from the cell phone‟s provider. (See Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence (2010) 50 Santa Clara L.Rev. 183, 199 [“text messages are feasibly accessible for about two weeks from the cellular provider”].)

Also mentioned in note 12 was the use of disposable cell phones by drug dealers. In note 17, the court compares other decisions:

Only a few published decisions exist regarding the validity of a warrantless search of a cell phone incident to a lawful custodial arrest. Most are in accord with our conclusion. (See, e.g., United States v. Murphy, supra, 552 F.3d at p. 412 [citing Edwards in holding that “once [the defendant’s] cell phone was held for evidence, other officers and investigators were entitled to conduct a further review of its contents … without seeking a warrant”]; United States v. Finley (5th Cir. 2007) 477 F.3d 250, 260, fn. 7 [arrestee’s cell phone “does not fit into [Chadwick’s] category of „property not immediately associated with [his] person? because it was on his person at the time of his arrest”]; United States v. Wurie (D. Mass. 2009) 612 F.Supp.2d 104, 110 [upholding delayed search of cell phone, finding “no principled basis for distinguishing a warrantless search of a cell phone from the search of other types of personal containers found on a defendant’s person that” have been upheld under Edwards].)

In a closely divided (four to three) opinion, the Supreme Court of Ohio held otherwise, reasoning that “because a person has a high expectation of privacy in a cell phone’s contents,” police, after seizing a cell phone from an arrestee?s person, “must … obtain a warrant before intruding into the phone’s contents.” (State v. Smith (Ohio 2009) 920 N.E.2d 949, 955.) The Ohio court’s focus on the extent of the arrestee’s expectation of privacy is, as previously explained, inconsistent with the high court’s decisions.

The court seems handcuffed by its constitutional limitations on following SCOTUS cases. It is hard to believe this is the court that came up with the gay marriage case a few years ago.

I go with the dissent on this one because the Supreme Court’s cases all predate technology, and a cell phone is more like a computer than a mere “small spatial container”:

The potential intrusion on informational privacy involved in a police search of a person’s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects. A contemporary smartphone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents, as well as records of the user’s telephone calls and Web browsing. Never before has it been possible to carry so much personal or business information in one’s pocket or purse. The potential impairment to privacy if arrestees’ mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great.

Although the record does not disclose the type of mobile phone defendant possessed, I discuss smartphones as well as other mobile phones for two reasons. First, the rule adopted by the majority — that an electronic device carried on the person is for Fourth Amendment purposes indistinguishable from an individual’s clothing or a small spatial container — is broad enough to encompass all types of handheld electronic data devices, including smartphones such as iPhones and BlackBerry devices, as well as other types of handheld computers. While I disagree with the majority’s holding on the validity of the search here, I agree that the permissibility of a search incident to arrest should not depend on the features or technical specifications of the mobile device, which could be difficult to determine at the time of arrest. Second, smartphones make up a growing share of the United States mobile phone market and are likely to be pervasive in the near future. (See Gershowitz, The iPhone Meets the Fourth Amendment, supra, 56 UCLA L.Rev. at p. 29 [“It does not take a crystal ball to predict that such devices will be ubiquitous in the United States within a few years.”].) The question of when and how they may be searched is therefore an important one.

Hat tip to PogoWasRight. See Forbes Blog Why Your Cell Phone Is More Private in Ohio than in California.

Actually from last summer, is the failed argument of the summer:

From the carjacking capital of the United States, a claim that the carjacking was justified as their own extralegal drug investigation with probable cause, allegedly to steal drugs. United States v. Torres-Sobrado, 733 F. Supp. 2d 325 (D. P.R. 2009):

The arguments made by the defendants, first, that no property was unlawfully seized because the property in question consisted only of illegal substances and, second, that the defendants had probable cause to conduct the fateful traffic stop and therefore, presumably, that the resulting search and seizure were lawfully conducted is, quite simply, nonsense. Even if the property taken from the victim is property that is not constitutionally protected, and even if the movants were accompanied during the traffic stop by a “real” member of the Puerto Rico Police Department acting on a tip from a reliable source, the defendants’ stop, detention, and search of Andrades were illegal according to the allegations in Count Six. Defendants are charged with staging a false traffic stop, motivated not by any attempt on the part of real law enforcement officers to enforce real laws, but motivated by a goal to procure drugs for resale and profit. For the defendants to argue that they had probable cause for the actions they are charged with, despite the fact that they are charged with staging that stop, despite the fact that neither is a real law enforcement official, despite the fact that they allegedly dressed up as law enforcement officials, is stunningly irrational and baseless. The Court rejects these arguments outright.

Also linked at Volokh Conspiracy.

The use of night vision goggles by the police was not an unreasonable seizure. A metal shed near the driveway was visible from the street by anyone. People v. Lieng, 190 Cal. App. 4th 1213, 119 Cal. Rptr. 3d 200 (1st Dist. 2010).*

The officer tried to stop the defendant for missing a license plate and only one working headlight. Defendant did not stop and he made “gestures” toward the console while the vehicle was moving. Once stopped, the vehicle was subject to search for a weapon. State v. Breisch, 2010 Ohio 6113, 2010 Ohio App. LEXIS 5148 (2d Dist. December 10, 2010).*

Defendant was stopped for careless driving, and the officer put his hand in defendant’s pocket to search it, and the trial court properly suppressed it. State v. Watana, 50 So. 3d 92 (Fla. App. 4th DCA 2010).

Officer’s mistake of law denies the state application of a “good faith exception” to a warrantless stop and seizure. The court declines to follow its own federal circuit because that case law is now undercut and other circuits do not agree. State v. Louwrens, 792 N.W.2d 649 (Iowa 2010):

This case, however, presents a different question: May an officer’s mistake of law provide probable cause to authorize a traffic stop? We mentioned, but did not decide this question in Lloyd. 701 N.W.2d at 680 n.1. A majority of courts that have considered the issue have concluded a mistake of law cannot provide probable cause to justify a traffic stop. See United States v. McDonald, 453 F.3d 958, 962 (7th Cir. 2006); United States v. DeGasso, 369 F.3d 1139, 1144-45 (10th Cir. 2004); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2003); United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000); United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998).

The State, however, urges us to adopt the minority view held by the Eighth Circuit Court of Appeals. That court has concluded “the legal determination of whether probable cause or reasonable suspicion existed for [a] stop is judged by whether the mistake of law was an ‘objectively reasonable one.’ “ United States v. Washington, 455 F.3d 824, 827 (8th Cir. 2006) (quoting United States v. Smart, 393 F.3d 767, 770 (8th Cir. 2005)).

However, our review of the development of the Eighth Circuit’s position does not convince us to follow suit. In Smart, a case in which the officer “made neither a mistake of law nor one of fact,” the Eighth Circuit stated that “in our circuit the distinction between a mistake of law and a mistake of fact is irrelevant to the fourth amendment inquiry.” 393 F.3d at 769, 770 (citing United States v. Sanders, 196 F.3d 910 (8th Cir. 1999)). However, Sanders, the case cited by the court for this proposition, was not analyzed as a “mistake” case and did not discuss the distinction between a mistake of law and mistake of fact for Fourth Amendment purposes. See Sanders, 196 F.3d at 912-13. It was not until later that year that the Eighth Circuit applied the principle announced in Smart in a case actually involving a mistake of law. United States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005). It did so without any discussion of the competing view that a mistake of law cannot provide probable cause to justify a traffic stop. In a subsequent decision, the court acknowledged the development of a different rule in other circuits, but did not discuss the rationale supporting that rule. Washington, 455 F.3d at 827 n.1.

Even assuming that the search warrant in this case was invalid for lack of probable cause, it was not so lacking of probable cause or “bare bones” that good faith did not support the search anyway. It was reasonable to infer that the seized trash bag came from defendant’s house because it was the only one around at the end of a dead end street, and the marijuana clippings in the trash bag were fresh and indicated that a grow operation was ongoing. United States v. Silvey, 393 Fed. Appx. 301 (6th Cir. 2010).*

The USDJ rejects the USMJ’s denial of defendant’s suppression motion because there was not justification for stopping defendant’s minivan for objects hanging from the mirror in violation of Michigan law. The officer was really acting on a tip from the DEA anyway. United States v. Adams, 2010 U.S. Dist. LEXIS 89745 (E.D. Mich. August 31, 2010).*

The CI’s information in this case was sufficient to find reasonable suspicion as the facts unfolded and corroboration was made. United States v. Vargas, 2010 U.S. Dist. LEXIS 89999 (D. Utah August 30, 2010).*

When a park ranger sees a traffic offense occurring as the defendant is leaving the park, it is not a violation of the Fourth Amendment for the officer to stop the defendant outside the park, and, thus, outside of the officer’s jurisdiction under Virginia v. Moore. United States v. Snow, 2010 U.S. Dist. LEXIS 89521 (D. Mass. August 5, 2010).*

When police responded to a commotion call at a Wal-Mart, the officer’s touching plaintiff’s arm was “more exhortatory than commanding” in an attempt to defuse the situation, so it was not a seizure that was unreasonable under the Fourth Amendment, and the district court properly instructed the jury. Carlson v. Bukovic, 621 F.3d 610 (7th Cir. 2010).*

Pro se plaintiff did not state a claim for his strip search on movement from one jail to another, despite his claim it was “degrading.” There was no Eighth Amendment claim at all. Jackson v. Herrington, 393 Fed. Appx. 348 (6th Cir. 2010).*

Defendant’s stop was with probable cause under the collective knowledge of the police agencies involved. Alternatively, it was supported by reasonable suspicion, and consent developed. United States v. Lyons, 2010 U.S. Dist. LEXIS 89774 (E.D. Mich. February 22, 2010).*

Even if the CI was not fully believable, the surveillance of the defendant was enough for the search warrant to issue, so the suppression motion is denied without a hearing. A Franks claim fails because it is conclusory. United States v. Chiprez, 2010 U.S. Dist. LEXIS 90622 (E.D. Wash. July 26, 2010).*

A shots fired call brought the police to defendant’s house, and witnesses said the shooter was inside. That was a sufficient exigent circumstance for an entry and a protective sweep. State v. Thomas, 2010 Ohio 4627, 2010 Ohio App. LEXIS 3915 (5th Dist. September 24, 2010).*

“Enactment of a statute that permits self-help repossession does not amount to the significant state involvement necessary for the Fourth and Fourteenth Amendments to apply.” Ford Motor Credit Co. v. Ryan, 2010 Ohio 4601, 189 Ohio App. 3d 560, 939 N.E.2d 891 (10th Dist. 2010).*

Defendant who was under constructive arrest in the hospital after a DWI accident was subject to a taking of his blood, and it was reasonable in this case. State v. May, 2010 Ohio 4594, 2010 Ohio App. LEXIS 3879 (5th Dist. September 24, 2010).*

The fact defendant seemed nervous when two detectives walk into a bar and announce themselves is not reasonable suspicion for a patdown. There were no facts justifying a patdown. State v. Gilmer, 2010 Ohio 4631, 2010 Ohio App. LEXIS 3905 (5th Dist. September 27, 2010).*

Defendant’s attempting to go the wrong way out of a gated community was not a violation of any traffic law, so her stop was without reasonable suspicion. State v. James, 2010 Ohio 4556, 2010 Ohio App. LEXIS 3870 (11th Dist. September 24, 2010).*

Defendant was stopped for not using a signal as he left a known drug house. The officer saw cocaine in plain view. State v. Davis, 2010 Ohio 4636, 2010 Ohio App. LEXIS 3908 (9th Dist. September 29, 2010).*

Defendant was stopped because he was driving with a “Detroit Lean”, but that was indicative of nothing criminal. The stop was without reasonable suspicion. The officer thought it was to divert attention from himself, but it more likely was the opposite. Crosby v. State, 970 A.2d 894 (Md. 2009).

Officers went to defendant’s hotel room to do a knock and talk, and he saw them coming and tried to flush his drugs. The officers entered to get the evidence. They lacked probable cause for the entry. State v. Hoffman, 293 S.W.3d 633 (Tex. App. – San Antonio 2009).*

T.L.O. governs searches of cars on school parking lot, following State v. Best, 959 A.2d 243 (N.J. Super. 2008). State v. Schloegel, 2009 WI App 85, 319 Wis. 2d 741, 769 N.W.2d 130 (2009).

Evidence supported the trial court’s finding of consent. Floyd v. State, 297 Ga. App. 736, 678 S.E.2d 181 (2009).*

Police received an anonymous call of a weaving car, and the stop was unwarranted because there was not corroboration of the informant. State v. Peele, 2009 N.C. App. LEXIS 507 (May 5, 2009):

Similarly, in this case, the anonymous caller accurately described the car’s physical characteristics and location, but did not give the police any way to test the caller’s credibility. The record contains no information about who the caller was, no details about what the caller had seen, and no information even as to where the caller was located. The caller did not “predict defendant’s specific future action,” Hughes, 353 N.C. at 208, 539 S.E.2d at 631, other than that he was driving from one stoplight to the next. Id. at 210, 539 S.E.2d at 632 (holding that confirmation that defendant was heading in general direction indicated by tipster “is simply not enough detail in an anonymous tip situation”).

Moreover, Sergeant Sullivan “did not seek to establish the reliability of the assertion of illegality.” Id. at 209, 539 S.E.2d at 632. He observed defendant at the stoplight and making the turn. He then followed him for no more than a tenth of a mile. During that time, he saw defendant one time “float[]” over to touch the dotted line and then move over to touch the fog line. The officer agreed that he “never saw any operation at all [of defendant’s vehicle] that was consistent with careless or reckless operation of the vehicle[.]” The officer thus did not corroborate the caller’s assertion of careless and reckless driving. We, therefore, do not believe that this case can be meaningfully distinguished from McArn and, consequently, the anonymous tip lacked sufficient reliability standing alone to provide reasonable suspicion for the stop.

A Utah statute that required that sex offenders register their Internet identifiers with the state violates neither the First nor the Fourth Amendment. As to the Fourth Amendment, there is no high privacy interest in the identifiers that a person uses on the Internet because it is voluntarily provided to third parties. It also does not violate the ex post facto clause. Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010).*

Four officers show up at defendant’s house and seek admittance. He lets them in, and they Mirandize him and then ask for consent. That is acquiescence to a show of authority, and the “consent” is invalid. State v. Ojeda, 2010 Fla. App. LEXIS 16275 (3d DCA October 27, 2010).*

Defendant failed to file a motion to suppress, so the search of his car by search incident or impoundment was not preserved for appellate review. The trial record alone is insufficient. State v. Roberts, 240 P.3d 1198 (Wash. App. 2010).*

An obvious hand to hand drug sale on the street surveilled by officers was probable cause. Donaldson v. State, 416 Md. 467, 7 A.3d 84 (2010).*

Defendant was arrested for no DL and insurance, and his car was towed subject to a standardized procedure. While the officer could not testify to what mandated this requirement, the appellate court notes that state law makes it unlawful to drive an uninsured vehicle, and that supported the mandate. The inventory the officer described was reasonable. Gant did not supplant inventory cases. People v. Mason, 403 Ill. App. 3d 1048, 935 N.E.2d 130, 343 Ill. Dec. 490 (2010).*

Defendant was staying at his wife’s home for the night when a parole entry occurred under a parole warrant for his arrest. A judicial warrant was not required. When the officers asked about a jacket so he could be clothed when they left, he said the jacket was not his. He did not have standing to challenge the search of the jacket. United States v. Viserto, 2010 U.S. App. LEXIS 18621 (2d Cir. September 3, 2010) (unpublished).*

The officers clearly had probable cause to make a vehicle stop and search of defendant’s vehicle based on the product of wiretaps. United States v. Mainor, 393 Fed. Appx. 10 (3d Cir. 2010),* certiorari denied by 2011 U.S. LEXIS 678 (U.S., Jan. 18, 2011).

The government’s claim of defendant’s abandonment came as a result of defendant’s disavowal of ownership of a duffle bag full of cash after it was illegally seized. That is not abandonment, and the motion to suppress is granted. The exclusionary rule needs to apply to deter such actions. United States v. Templeton, 2010 U.S. Dist. LEXIS 87616 (D. Ariz. August 2, 2010):

An “abandonment must be voluntary, and an abandonment that results from [a] Fourth Amendment violation cannot be voluntary.” United States v. Stephens, 206 F.3d 914, 917 (9th Cir. 2000). Here, the officers conducted an illegal search of the vehicle and duffle bag and then asked whether the evidence found during that search belonged to Templeton. Templeton stated it did not, but that abandonment was involuntary as a matter of law. See United States v. Nicholson, 144 F.3d 632, 640 (10th Cir. 1998) (finding abandonment involuntary as a matter of law when the abandonment occurred after officers’ Fourth Amendment violations). It would undermine one of the core purposes of the exclusionary rule if the government could conduct illegal searches, confront individuals with the fruits of those searches, and then rely on the illegally obtained evidence if the individual stated the evidence did not belong to him. See Crawford, 372 F.3d at 1054 (purpose of exclusionary rule is to deter police misconduct). Accepting the United States’ position would, in effect, provide an incentive for the government to conduct illegal searches in the hopes that a suspect will disclaim ownership of the evidence illegally discovered. 2The Court cannot encourage such actions. See Herring v. United States, 129 S. Ct. 695, 700, 172 L. Ed. 2d 496 (2009) (exclusionary rule should be applied when it will deter future Fourth Amendment violations).

Defendant’s right wheels briefly touching the fog line was not a violation of Nebraska law, so the stop was invalid. United States v. Magallanes, 730 F. Supp. 2d 969 (D. Neb. 2010).*

On an arrest of co-conspirators two blocks away from defendant’s house, officers returned to the house to conduct an immediate warrantless entry. They had probable cause for the search, and, although a search warrant had not been issued, “[t]he facts in this case present a textbook example of the proper application of the independent source doctrine.” United States v. Martinez, 2010 U.S. Dist. LEXIS 88282 (S.D. Fla. August 26, 2010).*

Based on these same circumstances, and as per Murray, the independent source doctrine applies. We will assume that the agents’ entry into the apartment following the defendants’ arrest was illegal under the Fourth Amendment. Nevertheless, paraphrasing the Supreme Court, knowledge that the cocaine and paraphernalia were inside the apartment was assuredly acquired at the time of the unlawful entry. But it was also later acquired at the time of entry pursuant to a lawfully issued warrant, and if that later acquisition was not the result of the earlier entry there is also no reason here why the independent source doctrine should not apply.

The officer had no reasonable suspicion to detain the defendants, and the court discounts all of the [lame] justifications or indicators given by the officer as being meaningless, individually and collectively. However, the stop was justified by speeding, and the court is “regrettably” reluctant to grant suppression of the dog sniff that occurred reasonably promptly. United States v. Sepulveda-Sandoval, 729 F. Supp. 2d 1078 (D. S.D. 2010)*:

Regrettably, this is a case where the defendants may not avail themselves of the remedy of suppression as a result of Trooper Oxner’s Fourth Amendment violation. The court leaves for another day and a higher court Chief Justice Marshal’s observation that every right has a remedy or it is no right at all. Marbury v. Madison, 1 Cranch 137, 163-64 (1803).

Putting a GPS on defendant’s vehicle during a drug investigation was not a violation of the Fourth Amendment. United States v. Jesus-Nunez, 2010 U.S. Dist. LEXIS 76107 (M.D. Pa. July 27, 2010).*

Defendant’s IAC claim is not proper in a direct appeal; he has to do it through a § 2255. United States v. King, 388 Fed. Appx. 194 (3d Cir. 2010).*

The drug dog sniff of defendant’s car was justified during his stop with reasonable suspicion, and that developed from a wiretap on somebody else’s telephone, and defendant refused consent [not a factor in RS; they tried that before the dog was called in]. United States v. Scott, 2010 U.S. Dist. LEXIS 75687 (D. Kan. July 27, 2010).*

There was probable cause for issuance of the search warrant in this case, and, even if there wasn’t, the good faith exception would make the evidence admissible. United States v. Wright, 2009 U.S. Dist. LEXIS 129240 (S.D. Ga. May 5, 2009).*

A state judge’s inadvertent failure to sign the search warrant was not fatal to the search. It was apparent after the hearing that the officer appeared before the judge and the judge considered whether there was probable cause. United States v. Martin, 2011 U.S. Dist. LEXIS 17639 (M.D. Fla. February 4, 2011):

Here, the initial question presented by the Defendant is whether Judge Green “issued” the search warrant after she made a probable cause determination, but inadvertently failed to sign the search warrant. A number of lower courts have examined the issue of whether an unsigned search warrant is “issued” within the meaning of the Fourth Amendment with varying results, and this Circuit is silent as to the effect of an unsigned warrant. See e.g., United States v. Evans, 469 F.Supp.2d 893 (D. Mont. 2007) and U.S. v. Jackson, 617 F.Supp.2d 316 (M.D.Pa. 2008). A review of the text of the Fourth Amendment itself reveals that there is no requirement that the issuing authority sign the search warrant. U.S. Const. amend. IV. Further, Rule 41 of the Federal Rules of Criminal Procedure also does not require the issuing judicial authority to sign the search warrant when the search warrant is applied for in person. However, a judicial officer’s signature on a search warrant is the surest and likely best method for indicating that the search warrant was issued upon a finding of probable cause by a neutral and detached authority. But the issuance of a search warrant under the Fourth Amendment is not synonymous with a judicial officer’s signature. See United States v. Hondras, 296 F.3d 601, 602 (7th Cir.2002) (stating that issuance is “not synonymous with signing”). In the absence of a signature, courts have looked at other evidence to determine if a search warrant was issued, to include: “(1) an indication on the warrant of the date before which the search must be conducted, (2) the presence of a case number indicating that the warrant has been filed, (3) the presence of the issuing authority’s initials or other imprimaturs of judicial authority on the warrant, and (4) an in-person acknowledgment by the issuing authority to the affiant that probable cause has been found.” Jackson, 617 F.Supp.2d at 320-21 (citations omitted).

In this case, the Court is satisfied that there is more than sufficient evidence to establish that the search warrant was issued. First, although the Search Warrant was unsigned, the face of the warrant does reveal a number of other imprimaturs of judicial authority to be included: (1) the Search Warrant was required to be executed and returned “within ten (10) days of the date hereof,” (2) the Search Warrant reflects Judge Green’s handwritten date of May 27, 2010, as the date which started the ten day period for the warrant to be executed and returned, and (3) the Search Warrant indicates based upon Judge Green’s handwritten information that the Search Warrant was authorized by a “Judge of the County/Circuit Court In and for Polk County, Florida.” Gov. Ex. 1 at 23. 8 Additionally, the Application for Search Warrant also exhibits a strong indicia of issuance because it is signed and executed by both Deputy Hill and Judge Green, and it is also dated May 27, 2010. Id. at 22. More notably, the Application for Search Warrant also contains a stamp and the signature of Judge Green’s Judicial Assistant indicating that the warrant had been returned on June 2, 2010, and each page of the Application for Search Warrant packet is imprinted with “Filed Polk County Clerk of Court 2010-09-03 14:33,” indicating that the documents were filed in the ordinary course of the court’s business. Gov. Ex. No. 2. 9 Further, beyond the face of the documents contained in the application for search warrant packet, Judge Green, after reviewing the entire packet in the presence of Deputy Hill, verbally acknowledged to Deputy Hill that she found sufficient probable cause to authorize the requested search of the Defendant’s residence. This fact is magnified by Judge Green’s testimony during the January 19th hearing, and her December 6, 2010 Affidavit (Dkt. No. 38, Att. 2), both in which Judge Green stated in no uncertain terms that although she inadvertently failed to sign the Search Warrant, she did review the entire application for search warrant packet, and did authorize/issue the Search Warrant for the Defendant’s residence.

Entry onto defendant’s rural property to both turn around and then investigate a crime that occurred nearby was an entry onto the curtilage, but it was reasonable. “No Trespassing” sign alone was not completely determinative. Once there, the officer saw a vehicle of interest. United States v. Conyers, 2011 U.S. Dist. LEXIS 16872 (E.D. Tenn. January 21, 2011):

As sacred as the home is, society is not willing to accept as reasonable an expectation that a police officer may not question a resident of a dwelling to ascertain if that resident has any information regarding the commission of a criminal act that occurred nearby, or evidence of a criminal act which was discovered nearby. Stated another way, it is not unreasonable for a police officer to come upon private property, even in the face of a no trespassing sign, to ask if the resident has any information that will aid in the investigation of a crime.

Further, the somewhat arcane issue of curtilage comes into play. Although the court does not recall if there was any testimony regarding the distance from the gate to the house, it clearly was a significant distance as shown by the aerial photographs filed as exhibits. In determining the extent of the curtilage, “the primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home.” United States v. Dunn, 480 U.S. 294, 301, fn. 4, 107 S. Ct. 1134, 94 L. Ed. 2d 326. (italics supplied). Defendant’s Keep Out-No Trespassing Sign does not, in and of itself, establish the extent of the curtilage; if it did, there are ranches in Texas containing thousands of acres that could be entirely encompassed within a home’s curtilage merely by the erection of a “keep out” sign at the perimeter. Id., 304. To state it succinctly, defendant’s curtilage did not start at his gate, and neither did it start until a point long after Detective Woods was able to see the Jeep which was in plain view.

So, when Detective Woods went upon defendant’s property on September 28, he was (1) looking for a place to turn his vehicle around, and (2) seeking anyone who might have knowledge of the evidence found in the woods alongside Nations Road. This was not entry upon defendant’s property that violated defendant’s reasonable expectation of privacy. Additionally, Detective Woods was well outside the curtilage when he was able to observe the Jeep. For either of these reasons, Detective Woods’ entry was not a violation of the Fourth Amendment.

The police responded to a 911 call about a “break-in” and a shooting. They found the defendant outside the house, confused and under the likely influence of drugs. They did a “protective sweep” on exigency and found drug stuff. They proceeded to search. The USMJ recommended suppression for lack of a warrant, and the USDJ agreed. The proper recourse was to get a search warrant and not rely on an alleged consent from a man they admit was hallucinating. Motion to suppress granted for lack of a warrant. United States v. Einerson, 2011 U.S. Dist. LEXIS 15633 (D. Neb. February 16, 2011):

The officers testified that the defendant appeared to be under the influence of a drug and was acting erratic, excited, nervous, paranoid and fidgety. Id. at 53-55. The defendant was pacing in the middle of the street and scratching his face. Id. He later made statements that led the officers to believe he was hallucinating. Id. at 55. At the time the second search was conducted, the defendant had been handcuffed and placed in the police cruiser. Id. at 38. He was later arrested on an outstanding warrant for driving under suspension and failure to appear and was transported to the police station and booked. Id. at 40.

. . .

The court agrees with the magistrate judge’s conclusion for the reasons stated in his opinion. The court finds the government’s reliance on Colorado v. Connelly, 479 U.S. 157, 164 (1986), for the proposition that “a Defendant’s mental condition, by itself and apart from its relation to official coercion, should never dispose of the inquiry into constitutional voluntariness” is misplaced. See Filing No. 47, Government Brief at 2. That case involves the voluntariness of a confession in the context of Fourteenth Amendment/Fifth Amendment [*5] Due Process rights and the Fifth Amendment’s protection against self-incrimination. Connelly, 479 U.S. at 167, 170. Coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. Id. at 167 (emphasis added). The voluntariness of a waiver of the privilege against self-incrimination has always depended on the absence of police overreaching, not on “free choice” in any broader sense of the word. Id. at 170 (stating that “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that”). The case has no application to the voluntariness of a consent to search under the Fourth Amendment. See, e.g., United States v. Montgomery, 621 F.3d 568, 573 (6th Cir. 2010) (noting that Fifth Amendment waiver and Fourth Amendment consent-to-search inquiries are not the same and that one difference is that the involuntariness prong of a Miranda waiver requires coercive police activity as a necessary predicate, something generally not required in Fourth Amendment consent cases).

Thomas P. Crocker, The Political Fourth Amendment, 88 Wash. U. L. Rev. 303 (2010). Abstract:

The Political Fourth Amendment builds on Justice Ginsburg’s recent dissent in Herring v. United States to argue for a “more majestic conception” of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to the Constitution’s protections for political liberty, and not simply as an invitation to regulate police practice, we must take seriously the fact that the Fourth Amendment’s textual purpose is to secure a “right of the people,” which places it textually alongside the First, Second, and Ninth Amendments that similarly seek to protect the “right[s] of the people.” Narratives focused on regulating police or protecting privacy each risk blinding us to the Fourth Amendment’s broader constitutional setting. By looking at the historical origins of the Fourth Amendment in relation to substantive First Amendment concerns, and examining the textual significance of protecting a “right of the people,” this Article argues that the two dominant narratives overlook a central political purpose of the Fourth Amendment. The political Fourth Amendment seeks to protect the political liberties of the sovereign “People.” Focused exclusively on protecting privacy by regulating police practice, current Fourth Amendment doctrine offers no protection to anything a person knowingly exposes to others, a hazard in an era of electronic social networking. Reading the Fourth Amendment back into the Constitution makes available new grounds for the Constitution’s relevance in an age of pervasive electronic surveillance.

The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment ‘Search and Seizure’ Doctrine by Thomas Y. Davies, Journal of Criminal Law & Criminology, Vol. 100, No. 3, pp. 933-1041 (2010), Abstract on SSRN.

Package bombs, footlockers, and laptops: what the disappearing Container Doctrine can tell us about the Fourth Amendment in Journal of Criminal Law and Criminology, Fall, 2010 by Cynthia Lee.

Swinging for the fences: how Comprehensive Drug Testing, Inc. missed the ball on digital searches in Journal of Criminal Law and Criminology, Fall, 2010 by Vincent Angermeier

Defendant gave a false name during his unlawful arrest, but the seizure of shotgun shells and a crack pipe from his person was valid by independent source. Jackson v. State, 1 So. 3d 273 (Fla. App. 1st DCA 2009).*

Defendant’s “observing our presence in a nervous fashion,” watching officers conducting a traffic stop, was not cause for an investigative detention. He also fled when they looked back at him. State v. Alvarez, 2009 La. App. LEXIS 57 (5th Cir. January 13, 2009).*

Chambering a round into a gun while driving with no hands on the wheel is reasonable suspicion for a stop. [One has to agree that this is mildly suspicious activity.] State v. Anderson, 2009 La. App. LEXIS 64 (5th Cir. January 13, 2009):

In the present case, Detective Peterson, a law enforcement officer with approximately 10 years experience, observed the defendant chambering a round into a firearm while driving with no hands on the wheel. Detective Peterson testified that, although he did not witness the defendant committing a specific crime, he stopped the defendant to investigate because “[he] did not know if a crime had been committed or was about to be committed.”

We cannot say that the trial court erred in finding that Detective Peterson had sufficient reasonable suspicion that a crime was being committed, had been committed, or was about to be committed to justify an investigatory stop. Detective Peterson did not have to observe what he knew to be criminal behavior before investigating but rather behavior he reasonably suspected may become criminal activity.

Extracting defendant’s blood after an accident complied with Schmerber and state law. While some factors under state law were not met, the state supreme court has cautioned that exclusion is not required if the extraction is otherwise reasonable. State v. Bowman, 327 S.W.3d 69 (Tenn. Crim. App. 2009), 130 S. Ct. 559, 175 L. Ed. 2d 388 (U.S. Nov. 9, 2009).*