This may be the first time I’ve heard of a foreskin search, via AOL News: Cops: Man Hid Crack in Penis. And just how did this search go down?

Remember the first episode of FX’s “The Shield”? In the opening scene, Vic Mackey yanks down a suspect’s pants and removes drugs from his genitalia.

The Ledger.com and NYT: Can You Frisk a Hard Drive? by David K. Shipler:

The chosen few — 6.1 million of the 293 million who entered the United States in the year ending Sept. 30, 2010 — get a big letter written on their declaration forms: A for an agriculture check on foodstuffs, B for an immigration issue, and C for a luggage inspection. Into the computer the passport officers type the reasons for the selection, a heads-up to their colleagues in the back room, where more thorough databases are accessible.

And there is where concerns have developed about invasions of privacy, for the most complete records on the travelers may be the ones they are carrying: their laptop computers full of professional and personal e-mail messages, photographs, diaries, legal documents, tax returns, browsing histories and other windows into their lives far beyond anything that could be, or would be, stuffed into a suitcase for a trip abroad. Those revealing digital portraits can be immensely useful to inspectors, who now hunt for criminal activity and security threats by searching and copying people’s hard drives, cellphones and other electronic devices, which are sometimes held for weeks of analysis.

On the Blog of the Legal Times: Suit Charges D.C. Police Executed Search Warrant at Wrong Apartment:

A man and his wife are suing the Metropolitan Police Department for $1 million in damages for allegedly barging into and searching the wrong apartment during a drug investigation last year in Southeast Washington.

The Man’s Best Friend / Drug dogs sniff at the Fourth Amendment by Greg Beato from the March 2011 of Reason magazine.

A letter from a reader, reprinted with permission, but redacted to remove identifiers:

I had an appeal in [my state], [citation omitted], concerning whether a seizure or a consensual encounter had occurred, and the law in [my state] on the subject was, well, not good. I found the XXXX decision on your site, and used it to cite several out of state decisions in support.

Surprisingly, we won, and the court even cited all of the out of state decisions. I may not have seen the decision without your blog, and your work has been essential in shifting the law in [my state]. The case is now cited both federally and around the state, and we are all thankful.

I look at your site on a daily basis, and keep up the good work.

In some areas of Fourth Amendment or state search and seizure law, you can find opposing cases on the same subject between states and sometimes in the same state. As a quote in the sidebar says:

“The course of true law pertaining to searches and seizures, as enunciated here, has not–-to put it mildly–-run smooth.”
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

It still doesn’t. After studying the Fourth Amendment in earnest for the last 35 years, yet still practicing law, I see cases several times a week that I find unfathomable, motivated by result oriented jurisprudence or just by a judge’s hatred for the right to privacy being granted to an accused criminal, thinking that the police should have near free rein over the citizenry.

I started spending the time on this blog, an average of 90 minutes a day, despite my day job, to educate lawyers and judges about this exceedingly arcane and complicated area of the law. I see pointless motions to suppress, but, hey, sometimes we have to file them. I also see overtly duplicitous decisions from courts involving creation of legal fictions, and, when I really disagree, I say so. Sometimes I just bite my tongue.

The website early became searchable. Not as good as Lexis or Westlaw, but something. I added a list of SCOTUS cases with citations over a year ago so lawyers could more readily find cases helping their cause, and over 250 SCOTUS cases cite the Fourth Amendment.

The original plan was to help me work on the Fourth Edition of Search and Seizure. For all the time I’ve spent here, I could have rewritten it four times. This blog is a job unto itself.

I average 50,000 visits a month. Letters like this prove that people actually benefit, and the law gets better, more uniform, somewhat. That makes it all worthwhile.

Today is the 249th anniversary of James Otis’ argument at the Boston Old State House against the writs of assistance in Paxton’s Case, heard Tuesday, February 24, 1761. (See this prior post from 2006). According to John Adams (see prior link), the issues and presentation in this writs of assistance case led to the adoption of the Fourth Amendment in 1791. Otis apparently was the first to say it in an American courtroom.

The argument is here, and it is stirring reading when one considers the abuse of the writs of assistance at the time.

Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and, when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware; so that these writs are negotiable from one officer to another; and so your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of the Sabbath-day Acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, “Yes.” “Well then,” said Mr. Ware, “I will show you a little of my power. I command you to permit me to search your house for uncustomed goods” – and went on to search the house from the garret to the cellar; and then served the constable in the same manner!

Other apparent transcripts of the argument are here and here. It took me about a week on and off in Internet searches in 2006 to find the exact date in this, at the time, obscure website; all I knew was February 1761, and the Boston Statehouse Museum could not provide a specific date, either.

Today is also the seventh anniversary of this blog; 3900 posts, at least 15,000 cases read, and over 3,000,000 visits. The start date of this blog and Otis’s argument may have been coincidental.

Misinformation, inconsistencies, and lack of memory about travel plans is a strong factor in reasonable suspicion. Slight weight may be given to lack of luggage and nervous behavior. Consent following the stop was valid. United States v. Pulido, 2011 U.S. Dist. LEXIS 10877 (N.D. Okla. February 3, 2011).*

While dispatch told the officer that the driver of a car was possibly DUI and had expired tags, the expired tags alone were enough for the stop. United States v. Frashure, 2011 U.S. Dist. LEXIS 10851 (N.D. W.Va. January 20, 2011).*

During the course of a traffic stop, marijuana was found where defendant was seated, and then the officers searched further and found a gun. That was a legal search under the automobile exception. United States v. Dillard, 2010 U.S. Dist. LEXIS 141038 (D. Nev. December 16, 2010).*

Defense counsel was not ineffective for not challenging the search warrant on the grounds he did not consent under Randolph, since consent was irrelevant. United States v. Roche-Moreno, 2011 U.S. Dist. LEXIS 11519 (M.D. Pa. February 7, 2011).*

Defendant was stopped for lacking a rear license plate. When he got out of his car, he reached for a pocket, and the officer conducted a patdown, emptying the pocket. The emptying the pocket was unjustified by plain feel because it was obviously not a weapon. State v. Olding, 2010 Ohio 4171, 2010 Ohio App. LEXIS 3557 (3d Dist. September 7, 2010).

Defendant was not only cooperative, he was eager to cooperate, and he volunteered when stopped, “out of the blue” … “What you’re looking for is behind the seat.” He was asked “if he cared if his vehicle was searched, and Defendant responded, ‘No, go ahead.’” This was consent. He then consented to a search of his house for more marijuana. State v. Wright, 2010 Tenn. Crim. App. LEXIS 736 (September 3, 2010).*

Officers had a homicide suspect in custody on the street after a stop, and the defendant rolled by and was acting furtively in the car. An officer approached, and he was scrambling to hide something. One thing led to another, and the defendant assaulted the officer trying to flee. When the first contact occurred, defendant voluntarily had stopped and was approached to see why he was talking to the suspect when the incident occurred. It was not a stop. State v. Williams, 2010 Ohio 4277, 2010 Ohio App. LEXIS 3619 (2d Dist. September 10, 2010).*

NCIC report that car was associated with a fugitive was sufficient basis for stop. “The NCIC report indicated that the Cadillac was associated with a wanted fugitive, providing probable cause to believe that the car contained either evidence related to the alleged rape-robbery or evidence of the fugitive’s whereabouts in the event that Pace turned out not to be the wanted man.” Court does not reach standing and suggests that he might still have had standing because he was a short term borrower of the car. United States v. Pace, 2010 U.S. Dist. LEXIS 141131 (E.D. Pa. February 8, 2010).*

The officers here lacked reasonable suspicion for defendant’s stop in a high crime area because he was carrying a beer can and was walking, maybe a little faster, toward his house and ignored the police when they called to him as he tried to enter his house. A request for ID without RS is not obstruction rising to the level of probable cause. United States v. Millner, 2011 U.S. Dist. LEXIS 12111 (N.D. Ohio February 7, 2011).*

CI was credible because, before the search warrant was sought, a large quantity of marijuana was seized where he said it would be. United States v. Griesbeck, 2011 U.S. Dist. LEXIS 12046 (E.D. Mich. February 8, 2011).*

Trucks [even though this was merely a box truck] are a heavy regulated industry, so it was proper to stop the defendant’s truck and check his papers. It turned out he was a previously deported person here illegally. The stop was valid. “In conclusion, KRS § 281.755, taken as a whole, places adequate limits on the discretion of inspecting officers. It thus passes each of Burger’s three prongs. Accordingly, the Court finds that KRS § 281.755 is a constitutional statute permitting the warrantless administrative inspection of commercial vehicles.” United States v. Galvan, 2011 U.S. Dist. LEXIS 11841 (E.D. Ky. February 7, 2011)* [Note: Since when is a mere box truck heavily regulated? This is not an interstate commerce carrier.]

Defendant’s request for a COA of the denial of his § 2255 is denied. Reasonable jurists would not agree he had any chance of success on appeal for not citing cases not yet decided at the time of the suppression hearing or in failing to predict future developments in Fourth Amendment law. United States v. Jacquez, 10-2165 (10th Cir. February 11, 2011).

Defendant’s driving left of center was reasonable suspicion for his stop. Once stopped, his admission he had four or five beers just before driving was probable cause. State v. Hatfield, 2011 Ohio 597, 2011 Ohio App. LEXIS 506 (5th Dist. February 2, 2011).*

Defendant consented to the officer’s viewing of his call log on his cell phone. United States v. Yazzie, 2011 U.S. Dist. LEXIS 13360 (D. S.D. February 10, 2011), R&R 2011 U.S. Dist. LEXIS 13420 (D. S.D. January 25, 2011).*

Defendant’s stop was with reasonable suspicion, so the immediate use of drug dog did not prolong the stop, and that provided probable cause of the search of the car. United States v. Patton, 2010 U.S. Dist. LEXIS 141236 (E.D. Tenn. December 28, 2010).*

On Jonathan Turley’s website today: Canadian Woman Found With Undeclared Raspberries and Strip Searched and Barred From Country. She has a vacation home in Savannah that she now can’t get to.

Such is the strip search power at Customs.

The Senate approved a three month extension of the PATRIOT Act while the House approved a nine month extension. The Senate version goes back for a vote in the House. See Politico.com.

The court credits that the officers smelled raw marijuana in defendant’s car, and that was probable cause for a search under the automobile exception. United States v. Colon, 2011 U.S. Dist. LEXIS 14106 (S.D. N.Y. February 8, 2011).*

The stop of defendant’s semi-truck was justified and based on the regulation of the trucking industry. After the truck was stopped, the DOT number on it was wrong, and reasonable suspicion developed from there. The stop was not overlong. United States v. Luna, 2011 U.S. Dist. LEXIS 14348 (N.D. Ill. February 14, 2011).*

The probation officer’s search of defendant’s computer that revealed child porn was not unreasonable as a probation search either by cause or intensity. Trobee v. United States, 2011 U.S. Dist. LEXIS 14003 (D. S.D. February 11, 2011).*

The court credits the officer’s testimony that the defendant consented to a search. There was a minor error in his testimony that did nothing to discredit him. United States v. Coachy, 2011 U.S. Dist. LEXIS 13888 (E.D. Tenn. January 20, 2011).*

USA Today: Critics knock no-knock police raids by Ron Barnett and Paul Alongi:

In the instant he appeared, the video shows, three shots rang out and the man, Todd Blair, 45, fell to the floor, dead.

The Ogden incident was among a growing number of no-knock police raids last year, a tactic that has grown in use from 2,000 to 3,000 raids a year in the mid-1980s, to 70,000 to 80,000 annually, says Peter Kraska, a professor of criminal justice at Eastern Kentucky University who tracks the issue.

That increase has raised questions about the tactic, including whether the surprise element poses an unnecessary threat to people whose residences are invaded.

The search of defendant’s car was by consent, but after that, the search of defendant’s residence was not. He was trying to make a plane to his mother’s funeral and wasn’t going unless he consented, and he was transported to his house 19 minutes in handcuffs. That was inherently coercive, and the facts found by the trial court are supported by the record. State v. Dougherty, 2011 Iowa App. LEXIS 87 (February 9, 2011):

The district court credited that testimony in finding, “It was well known that going to his mother’s service was very important to the Defendant and that he had only a limited time within which he could make his flight.” Giving due deference to this implied credibility finding, we agree with the court that Dougherty’s consent was not voluntary because of the subtle coercion employed by the officers in this case. See Reinier, 628 N.W.2d at 469. But see United States v. Kolodziej, 706 F.2d 590, 593 (“Raised expectations and hopes for leniency do not amount to coercion or improper inducement.”).

We reach this conclusion though there is other evidence that tends to support finding Dougherty’s consent was voluntary, such as his signing of the written consent form and an officer’s statement to him that he could possibly go to jail that night. See Reinier, 628 N.W.2d at 469 (reaching similar conclusion). However, that statement and the execution of the written consent form followed the coercive tactics detailed above, which also included a nineteen-minute car ride in the back of a squad car to the house in Tiffin during which Dougherty remained handcuffed. Upon examining the totality of the circumstances, we agree with the district court that Dougherty did not voluntarily consent to the search of his residence. 5 Our inquiry does not end here, however, as the State asserts Dougherty’s probation agreement provided an alternative ground for the officers’ search of the residence.

While the government cannot use an IRS civil audit to investigate an IRS criminal case, that does not make a later criminal case automatically a violation of the Fourth or Fifth Amendment. Defendant’s cooperation was not induced by trickery just by not telling him that a criminal case could result. United States v. Koning, 2010 U.S. Dist. LEXIS 141148 (D. Neb. December 17, 2010):

There is no showing Baisden was detained, mandated or forced to attend any meetings with the IRS or to produce documents. Although “a consent search is unreasonable under the Fourth Amendment if the consent was induced by deceit, trickery or misrepresentation of the Internal Revenue agent,” (U.S. v. Powell, 835 F.2d 1095, 1098 (5th Cir. 1988)), the defendant has made no showing of IRS misconduct. Baisden consented to cooperate with the IRS by producing the documents requested by that agency. His Fourth Amendment rights were not violated. See, United States v. Irvine, 699 F.2d 43, 46 (1st Cir.1983) (records obtained during an IRS interview were not suppressed under the Fourth Amendment where the agent made no affirmative misrepresentations); United States v. Sclafani, 265 F.2d 408, 414-415 (2d Cir.1959) (holding that to obtain valid consent under the Fourth Amendment to review records for a civil audit, the taxpayer need not be told the government may commence criminal rather than civil proceedings with the records disclosed); U.S. v. Kaatz, 705 F.2d 1237, 1243 (10th Cir. 1983) (holding suppression of evidence obtained during a civil audit was not warranted where nothing in the record showed the defendants were misled by anything the IRS agent did or said. “Failure to warn that a criminal investigation may ensue is not fraud, deceit, or trickery.”).

There was a substantial basis for concluding that defendant was involved in drug transactions and that drugs would be found. The good faith exception would also apply. United States v. Estrada, 2010 U.S. Dist. LEXIS 141143 (D. Minn. December 17, 2010).*

Surveying the case law [well worth reading], the court concludes that Caballes did not bar the use of a dog inside the home during the execution of a search warrant did not expand the warrant. Also, the occupants were present and the dog did not menace anyone. United States v. Jones, 2011 U.S. Dist. LEXIS 10820 (E.D. Wis. January 26, 2011):

Ultimately, as Caballes and the other cases cited above confirm, the touchstone is reasonableness, and I find that the officers acted reasonably in the present case. The dog was present inside the home for just fifteen minutes and thus did not extend the duration of the search; he “searched” only those areas in which the items listed on the warrant could be found and thus did not exceed the authorized scope of the search; and he remained leashed and did not bark at or otherwise menace Haley and her child or damage property inside the home. In sum, the presence of the dog did not in any way elevate the level of the intrusion. Further, the evidence shows that use of the dog was not pre-planned. Officer Smith and Emo traveled to the residence and offered to assist on their own initiative, not based on a request by Osowski. And, Osowski decided to employ the dog only after he observed a scale and drug residue in plain view during his initial sweep of the residence.

Even if the officer’s questions to the passengers were about why statements were erroneous and not just to clarify, an open issue in the Tenth Circuit, it was all based on reasonable suspicion. United States v. Pulido, 2011 U.S. Dist. LEXIS 10877 (N.D. Okla. February 3, 2011).*

Just because a suspect is moved slightly during his stop, it is not turned into an arrest: “We conclude, therefore, that when required for the safety of the officer or suspect, a suspect may be moved a short distance during an investigatory detention if that is consistent with the purposes of the investigation, does not unduly prolong the duration of the detention, and does not otherwise turn the situation into the equivalent of a formal arrest.” State v. Barriger, 44 Kan. App. 2d 648, 239 P.3d 1290 (2010).*

Seeing defendant on school property without a school uniform was reasonable suspicion of trespassing on school property. When she opened her purse, a knife was in plain view. State in the Interest of K.M., 2010 La. App. LEXIS 1305 (4th Cir. September 29, 2010).*

Defendant was arrested after an entry by the SWAT team, and he was in his underwear. The entry was lawful, as was recovery of the gun. He was asked where the gun was without being Mirandized, and that did not fit within Quarles and the “public safety” exception. The search was otherwise valid, but his admission is suppressed. United States v. Carrizales, 2010 U.S. Dist. LEXIS 104798 (N.D. Ohio September 29, 2010).*

Defendant’s arrest for drugs on the street was justification for his strip search at the jail. Directing him to take off his pants and then seeing drugs fall out was not unreasonable. This case is a detailed review of the law of strip search. State v. Harding, 196 Md. App. 384, 9 A.3d 547 (2010):

With yet no direct guidance from the Supreme Court, a nation-wide debate (or series of more or less related debates) has been raging over the extent to which the search of an individual for evidence may, in its intensity, go beyond the limits of the traditional search incident to lawful arrest and still be deemed reasonable within the contemplation of the Fourth Amendment. That debate, thus far, has produced far more heat than light. The case law and the academic commentary have been growing so prolifically that they are producing a chaotic sprawl. An effort has to be made to organize this growing mass of material into more manageable and comprehensible sub-units. Part of our goal in this opinion will be that of reducing the doctrinal clutter.

Our special concern on this appeal will be with the precise justification required to expand a routine search incident into what may be characterized as a “strip search.” The law has been in a quandary about how to understand, and to explain, the relationship between the strip search and the search incident. The heart of the problem is that the strip search grows out of the search incident — but not automatically. In getting a handle on that troubled relationship, the key concepts will be 1) that a search incident does not demand particularization but 2) that a strip search (or anything more invasive) does.

The knock-and-talk in this case was a virtual entry without a warrant. Voluntariness of alleged consent was not the issue. Instead, the question was whether the alleged consent was an independent act of free will. Reversed. United States v. Hernandez, 392 Fed. Appx. 350 (5th Cir. 2010)*:

Our holding in Gomez-Moreno applies almost precisely to this case. The officers’ conduct during their knock-and-talk—banging on doors and windows while demanding entry, attempting a forced entry by breaking the glass on Hernandez’s door, then relying on her admission that an illegal alien was present as probable cause to enter—violated the Fourth Amendment.

The district court should have acknowledged that the officers’ knock-and-talk conduct was an unreasonable search. Had it done so, the court then would have proceeded not to the six-factor voluntariness analysis of Hernandez’s consent, but instead to the alternative analysis of whether her consent was an independent act of free will, breaking the chain of causation between the constitutional violation and the consent. United States v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002). Courts consider that question by weighing three factors: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct. Id.