Defendant’s arrest for driving 99 mph captured on video and being lethargic when detained. He was arrested for reckless driving and driving on a revoked license. The impoundment was conducted under Alaska State Trooper regulations and was valid. The finding of a gun gave probable cause for further search of the vehicle beyond mere inventory. United States v. Greenwood, 2010 U.S. Dist. LEXIS 129867 (D. Alaska December 7, 2010).*

Defense counsel was not ineffective for not predicting Randolph, if it even applied. The court could not tell from the motion to suppress and the supporting papers whether defendant was present or not at the time of the search to object to it. His wife consented, and “Defendant’s primary strategy at trial was to show that he was set up by his wife.” United States v. Blakley, 2010 U.S. Dist. LEXIS 130132 (E.D. Ky. November 8, 2010).*

Officers here collectively knew enough to make probable cause under the “collective knowledge” doctrine. And, the search of defendant’s car here was justified by the automobile exception. United States v. Nicksion, 628 F.3d 368 (7th Cir. 2010).*

Defendant consented to first a patdown during the traffic stop and then a minute later to a search of the vehicle, in writing, after a drug dog alerted to the vehicle. This was all on video. State v. Lopez, 2010 Tenn. Crim. App. LEXIS 1029 (December 6, 2010).*

Law enforcement officer’s search could not be justified by defendant’s parolee status. The court takes a foray into parole searches and doesn’t like Samson [only SCOTUS does]. State v. Ochoa, 792 N.W.2d 260 (Iowa 2010):

G. Academic Commentary on the Samson Approach. Academic commentary has generally been hostile to Samson and the departure of particularized suspicion. A raft of student notes takes the position that Samson spun the wheels off of the Fourth Amendment. See, e.g., Robert Cacace, Recent Development, Samson v. California: Tearing Down a Pillar of Fourth Amendment Protections, 42 Harv. C.R.-C.L. L. Rev. 223, 229-33 (2007) (stating that Samson confuses the reasonableness test with the special needs test, thereby undermining Fourth Amendment rights); John Lassetter, Article, Samson v. California: “Evil” Suspicionless Searches Become a Part of Everyday Life for Parolees, 25 Law & Ineq. 539, 554-55 (2007) (rejecting balancing test utilized by Samson and asserting that suspicionless searches of parolees are not reasonable); Rachael A. Lynch, Note, Two Wrongs Don’t Make a Fourth Amendment Right: Samson Court Errs in Choosing Proper Analytical Framework, Errs in Result, Parolees Lose Fourth Amendment Protection, 41 Akron L. Rev. 651, 681-88 (2008) (stating Samson ignores important Fourth Amendment interests of parolees and overstates state interests); David M. Stout, Note, Home Sweet Home?! Maybe Not for Parolees and Probationers When it Comes to Fourth Amendment Protection, 95 Ky. L.J. 811, 838 (2007) (arguing warrantless, suspicionless searches have negative impact on offender reintegration with little gain).

Leading academic commentators agree. For example, Professor LaFave finds Samson unpersuasive, characterizing the move away from “special needs” analysis into a general reasonableness analysis as “especially troublesome.” 5 Wayne R. LaFave, Search & Seizure § 10.10, at 44 (4th ed. Supp. 2010-2011).

. . .

The scope of the asserted power is stunningly broad. A person on parole for an alcohol-related crime, for instance, could be subject to warrantless searches of books, records, diaries, invoices, and intimate surroundings. The proposed invasion is not minimal and highly-defined as in Terry; nor is it closely-linked to an identified special need as in National Treasury Employees Union or Skinner. See Nat’l Treasury Employees Union, 489 U.S. at 669-71, 109 S. Ct. at 1392-93, 103 L. Ed. 2d at 704-05 (urine testing of employees to avoid corruption in the revenue service); Skinner, 489 U.S. at 623-24, 109 S. Ct. at 1416-17, 103 L. Ed. 2d at 663-64 (blood, urine, and breath testing for persons in safety sensitive jobs); Terry, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 910-11 (investigatory stops). The scope of the search in Samson thus is flatly contrary to the common-sense notion that “the scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry, 392 U.S. at 19, 88 S. Ct. at 1878, 20 L. Ed. 2d at 904 (quoting Hayden, 387 U.S. at 310, 87 S. Ct. at 1652, 18 L. Ed. 2d at 794 (Fortas, J., concurring)). The scope of search authority in Samson reminds one of the search of Coke’s premises and the seizure of his children’s poem and his will; there are no limits to the scope of the search. See White, 31 U. Pitt L. Rev. at 194 (comparing broad searches of parolees’ dwelling places to general searches condemned by Otis).

Where defendant consented to a search while the officer had all her paperwork after a valid traffic stop, the consent to search was valid. State v. Pesce, 325 S.W.3d 565 (Mo. App. 2010)* [This case is just so wrong.]:

Here, it is clear that Pesce’s consent was obtained during a reasonable investigation of a traffic violation. When Trooper Gilliland requested consent to search her car, Pesce had not yet been cited for the driving infraction, nor had she had been given her identification back. Ultimately, Pesce points to no evidence before the trial court that demonstrated that this investigation of the traffic violation was needlessly prolonged by Trooper Gilliland beyond the confines of a reasonable search as contemplated by the Missouri Supreme Court.

Officers went to defendant’s address to do a parole check on Jones who had that address listed as one of two where he was staying. At the window, the officers saw defendant on the couch and talked to him through the window. They asked if they could enter to look for Jones, and they were let in. Inside was a bunch of marijuana packaged for individual sale and the strong odor of marijuana. The dryer in the kitchen was making a racket, so the officer opened the door to stop the noise so they could call out to the person upstairs. Inside the dryer was more marijuana. The search was reasonable, as was opening the dryer door. People v. Smith, 190 Cal. App. 4th 572, 118 Cal. Rptr. 3d 483 (2d Dist. 2010).*

Defendant was stopped with reasonable suspicion after a traffic stop. She was targeted for surveillance after a CI’s information on her where the CI had been used “25-50” with success in the past. When she was out of the car, it was reasonable to frisk her based on the information that the officer had. Lewis v. State, 9 A.3d 476 (Del. 2010).*

Officer’s arrest of defendant for DWI slightly outside of the officer’s jurisdiction is something not subject to the exclusionary rule. Here, the exclusionary rule is weighed against the defendant’s repeated inability to conform his conduct to the law, so why should he benefit from exclusion? Delker v. State, 50 So. 3d 300 (Miss. 2010):

P3. A Fourth Amendment violation does not automatically precipitate the exclusion of evidence. Rather, it sets into motion a separate inquiry, i.e., whether application of the exclusionary rule outweighs the costs to society in allowing the criminal to be set free. See Herring, 129 S. Ct. at 700 (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006)) (“exclusion ‘has always been our last resort, not our first impulse’”). Each case must be considered based upon the facts presented in that case. We find the exclusionary rule inapplicable in Delker’s case and affirm the result reached by the circuit court and affirmed by the Court of Appeals.

. . .

P17. Any purported deterrent effect in encouraging officers to be aware of jurisdictional boundaries is dubious at best, given the dearth of similar cases involving errors in jurisdictional boundaries presented to this Court over the years. This alone should negate any perception of the beneficent need for exclusion to the end of “appreciable” or “substantial” deterrence of such errors in the future. Herring, 129 S. Ct. at 700-01. But even assuming arguendo that a marginal deterrent effect exists, it is significantly outweighed by the “substantial social costs” and “harm to the justice system” exacted by exclusion. Id. at 700-02, 704. It takes neither a judge nor a lawyer to recognize the compelling social interest in protecting innocent citizens from drunk drivers and the offense to “basic concepts of the criminal justice system” by “letting guilty and possibly dangerous defendants go free.” Herring, 129 S. Ct. at 701 (quoting Leon, 468 U.S. at 908). Here, a multiple DUI offender, who was driving under the influence on Christmas Eve, would not be required to answer for his actions because of Langston’s error. The counter-effect would be that innocent citizens of this State, who look to the government for protection from drunk drivers, would be subjected to the potentially fatal risk of a recalcitrant, multiple-DUI offender being placed back on their roadways. This risk only adds to the undeniable substantial social costs exacted by drunk drivers through not only fatalities, but also through grief to the survivors; personal injuries ranging from catastrophic to minor; and property loss. Moreover, harm to the justice system is self-evident. Delker has demonstrated a deliberate, reckless, and flagrant disrespect of the laws of this State, despite opportunity after opportunity to alter his conduct.

So, is it reasonable to assume, then, that the exclusionary rule in Mississippi will not be applied on a sliding scale of the gravity of the crime? So, if this were Delker’s first offense, would the exclusionary rule apply? Second in five years? What about any murder case in Mississippi, considering the NYTimes op-ed piece from three days ago, High Cost of Crime (a murder costs society $17+M)? Can the language of this case be applied to the “scourge” of drug dealers who might be selling to innocent children or minors? I don’t see this case being limited to its facts, and this is truly one of those “bad facts making bad law” scenarios.

The search warrant’s failure to include a list of things to be seized or an attachment made it a general warrant. The affidavit could not be relied upon where it was sealed and unavailable. This situation is close to the situation in Groh. With a full analysis of the situation and case law, the complete failure to include a list of things to be seized required application of the exclusionary rule. United States v. Wright, 730 F. Supp. 2d 358 (E.D. Pa. 2010)*:

In this case, we are presented with a warrant that, on its face, contains no description of the items to be seized and includes no attachment meeting the particularization requirement. In Groh, the Supreme Court recognized that a search conducted pursuant to such a warrant is an unconstitutional warrantless search, even when the warrant application sets forth the items to be seized during the search and the agent executing the search limits himself to the scope of the application. Therefore, I decline to characterize the Wright warrants as “general,” because they contain not a vague or generic list of items to be seized, but rather, as in Groh, no description at all. The Wright brothers’ argument that the warrants are invalid for lack of particularity is correct. See United States v. Yusuf, 461 F.3d 374, 393, 48 V.I. 980 (3d Cir. 2006) (discussing Groh); United States v. Wecht, 619 F.Supp.2d 213 (W.D.Pa. 2009) (granting a motion to suppress evidence when the affidavit, which was referred to on the warrant as an “Exhibit” and which contained the list of items to be seized, was sealed and was not attached to the warrant during execution).

. . .

Lazar and Hamilton are the two Circuit Court cases most factually similar to this case. Other courts, including the Third Circuit in Tracey, and the Second and Tenth Circuits, have issued opinions calling attention to Herring‘s focus on the level of police culpability in determining whether to apply the exclusionary rule. However, in those cases, there was enough specificity in the warrants for the courts to consider applying the good faith rule. In this case, the warrants were facially invalid and we therefore are not required to determine whether the executing officer acted in good faith.

In Herring, the Supreme Court did not abandon or question its clear statement in Leon that “a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” 468 U.S. at 923. In Tracey, the Third Circuit repeated this rule, presuming it to be valid even in light of Herring. In the absence of a clear Supreme Court or Third Circuit ruling that a facially invalid warrant can somehow be relied on in objective good faith, I do not believe the good faith inquiry set forth in Herring applies in this case. I acknowledge that the level of “police culpability” in this case is low, and that, had the warrant here had some description of the items to be seized, Herring would mandate a consideration of Officer Taylor’s level of responsibility for the error in this case. However, the Third Circuit has not signaled that Herring spelled the end of the exclusionary rule for facially invalid warrants, and a facially invalid warrant is what is clearly before me.

III. CONCLUSION

For the reasons set forth above, I will grant the motions to suppress the physical evidence seized during the search of the Wright apartments.

Defendant’s admission that he hung out with pot smokers was enough to justify a parole search of his premises. Under Pennsylvania law, however, the parole officer had to have reasonable suspicion for a search of his car for drugs, and that was lacking in this case. United States v. Rivera, 727 F. Supp. 2d 367 (E.D. Pa. July 22, 2010).*

Defendant’s claim that defense counsel was ineffective for not seeking a copy of the 911 call that reported a gang fight was about to start was hardly valid, considering officers responding to the call saw defendant with a shotgun in hand and arrested him. That was the basis for his arrest, not the call. Rivera v. United States, 2010 U.S. Dist. LEXIS 73976 (D. Conn. July 22, 2010).*

Defendant’s investigative detention was justified. There was a murder in the neighborhood the day before, and officers were in the area to prevent a retaliatory shooting. Defendant’s car was swerving and was pulled over, and there were furtive movements in the car as officers approached. This was reasonable. United States v. Clemmons, 2010 U.S. Dist. LEXIS 73666 (W.D. Tenn. July 21, 2010), R&R, 2010 U.S. Dist. LEXIS 73750 (W.D. Tenn. February 5, 2010).*

While there may have been innocent explanations for the defendant meeting for a probable drug deal, there was still probable cause. “‘Even if there is an innocent explanation, as long as there is a reasonable probability that there is criminal activity afoot, despite the presence of other probabilities, probable cause is present.’ United States v. Myrick, No. 97 CR 197, 1997 WL 564673, at *12 (N.D. Ill. Sept. 3, 1997) (quoting United States v. Dorfman, 542 F. Supp. 345, 359 (N.D. Ill.1982)). The possibility that Bennett may have been planning to meet Atkins for shopping or a meal does not therefore vitiate the possibility that Bennett and Atkins were meeting for a drug deal. See id. Taken together, Bennett’s actions ‘are difficult to explain as an innocent exchange, but quite easily understood, especially when observed by experienced narcotics officers, as a common method of conducting a drug deal.’ Funches, 327 F.3d at 586.” United States v. Bennett, 2010 U.S. Dist. LEXIS 73551 (N.D. Ill. July 21, 2010).*

Looking at defendant’s cell phone text messages was permitted by the search incident doctrine. United States v. Grooms, 2011 U.S. Dist. LEXIS 10824 (E.D. Tenn. January 3, 2011):

The United States acknowledged that a search incident to an arrest must be “substantially contemporaneous” with the arrest and confined to the immediate vicinity of the arrest, citing Shipley v. California, 395 U.S. 818, 819, 89 S. Ct. 2053, 23 L. Ed. 2d 732 (1969). But the United States also argues that “contemporaneous” is not synonymous with “simultaneous.” At least under the circumstances described in this case, the court agrees. No less than the United States Supreme Court has held that a search and seizure that could have been made on the spot at the time of the defendant’s arrest may legally be conducted later when the defendant arrives at the detention facility, United States v. Edwards, 415 U.S. 800, 803, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974). Deputy Laudwick easily could have viewed the text messages on defendant’s cell phone while he and defendant were at defendant’s house at the time of his arrest. That being so, the later retrieval of the text messages at the sheriff’s office was proper under the authority of Edwards, supra.

[Note: This case follows, without saying so, the rationale of the California Supreme Court in Diaz that pre-technology cases control. Look, if a court has to cite a search incident case from 1969 to justify a search incident of a 2010 cell phone, then that case is meaningless. Maybe the court knows it, but a USMJ without a creative spark to see the law developing should constrain his or her work to detention hearings and stay away from Fourth Amendment v. technology because it is moving so damn fast. I compare this case to the multitude of USMJs’ limiting the government for cell phone tracking information, and I wonder what this guy is thinking.]

From the NYU student newspaper, Washington Square News: Study finds blacks, Hispanics more likely to be stopped on drug suspicion by Ashley Steves:

A possible arrest for drug possession might have just as much to do with one’s race as it does with potential illegal activity.

According to a report by the New York Civil Liberties Union and Harry Levine, a sociology professor at Queens College, black and Hispanic citizens are more likely to be pulled over for suspicion of illegal drugs by the New York Police Department than white or Asian citizens.

An ongoing federal lawsuit was filed in 2008 by the Center for Constitutional Rights after it analyzed six years of the NYPD’s data and found that almost 150,000 stops were made without reported justification.

On MainJustice.com tonight: House Rejects Patriot Act Provisions, by Fahima Haque:

The House of Representatives on Tuesday rejected a measure to extend through December three expiring provisions of the Patriot Act, the national security legislation passed in the wake of the Sept. 11, 2001 attacks.

A coalition of liberal Democrats and conservative Republicans – both concerned about civil liberties – came together to defeat the proposed extension on a 277-to-148 vote. Twenty-six Republicans voted with 122 Democrats against the measure, while 67 Democrats and 210 Republicans supported it. Ten members did not vote.

Without congressional action, the three controversial provisions will expire on Feb. 28. The provisions are “roving wiretaps” that follow a terrorism suspect’s changing use of phone and Internet records, a “lone wolf” provision allowing law enforcement to track a target that doesn’t have an affiliation with a specific group, and so-called Section 215 orders allowing investigators to freely gather a suspect’s business records.

Defendant was arrested at home for passing three counterfeit $10 bills at McDonald’s restaurants. His roommate consented to a search of the common area, and the original $10 bill was found with computer equipment. Since computers, scanners, and color printers are now used to counterfeit money, the evidentiary value of the computers was immediately apparent justifying their seizure. A later valid search of the computers turned up child pornography. State v. Wendland, 2011 Tenn. Crim. App. LEXIS 82 (January 31, 2011).*

Probable cause was shown for the search warrants in this case by controlled buys where the CI was told to come to the buildings searched. As to a Franks challenge, the omitted information was not at all material to the finding of probable cause. United States v. Manzanares, 2011 U.S. Dist. LEXIS 10742 (D. Minn. January 5, 2011).*

Defendant was arrested in his doorway, and the entry was justified by outstanding warrants for his arrest. He got into an altercation with the officers, and that led to a protective sweep of the premises where two others were found. The officers did not have to have the arrest warrants in hand; they heard about them from dispatch. The protective sweep led to a further consent search. United States v. Perez, 2011 U.S. Dist. LEXIS 10721 (C.D. Cal. January 20, 2011).*

This is fairly typical: An Indiana deputy sheriff is on hand to force a homeowner to submit to a health inspection despite the homeowner’s demand for a warrant. See US Constitution 4th Amendment is Dead in America (video, yesterday), where the homeowner videotapes the encounter. “If you’ve got nothing to hide…”

One of the great ironies of the Fourth Amendment to non-lawyers is that the Fourth Amendment does not apply to noncriminal matters or misdemeanors. Why would a criminal suspect have more Fourth Amendment rights than a civilian doing nothing? Here, the deputy sheriff apparently calls for back up for a peaceful insistence on a search warrant to enter the property. The video ends before we actually see the second deputy, but his car is there.

The failure to state time of the CI’s observations in the affidavit here were not fatal to the finding of probable cause. In its totality, it was possible to find that the probable cause was recent and it was sufficient for a finding under Illinois v. Gates. Jones v. State, 2011 Tex. App. LEXIS 820 (Tex. App.–Houston (1st Dist.) January 31, 2011):

We begin our analysis by noting that the failure to include specific dates and times of relevant events described in the affidavit in this case is not a model to be followed, something the State conceded during oral argument. The question before us, however, is whether the lack of a specific date or time is fatal in this case, or whether the totality of the affidavit nonetheless justified the magistrate’s finding of probable cause.

. . .

“The amount of delay which will make information stale depends upon the particular facts of the case, including the nature of the criminal activity and the type of evidence sought.” United States v. Allen, 625 F.3d 830, 842 (5th Cir. 2010). Facts indicating ongoing criminal activity have long been recognized as diminishing the importance of establishing a specific and immediate time period in the affidavit: “Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.” United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972), quoted in 2 Lafave, supra, § 3.7(a), at 374; see also Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973); Bernard v. State, 807 S.W.2d 359, 365 (Tex. App.—Houston [14th Dist.] 1991, no pet.). Since Gates was decided, three state supreme courts have held that probable cause existed for issuance of a search warrant in situations in which there was a continuing drug operation and the search-warrant affidavit referred to a recent event. See State v. Walston, 236 Mont. 218, 768 P.2d 1387, 1390 (Mont. 1989) (holding that continuing criminal activity such as drug dealing coupled with confidential informant’s statement that he had “recently” heard defendant state he was growing and selling marijuana was not so stale as to negate probable cause); Commonwealth v. Jones, 542 Pa. 418, 668 A.2d 114, 118 (Pa. 1995) (affidavit’s evidence of continuing drug operation coupled with confidential informant’s statement that the informant “has just” observed contraband was not insufficient merely because affidavit did not contain a specific date); Huff v. Commonwealth, 213 Va. 710, 716, 194 S.E.2d 690 (Va. 1993) (quoting Reynolds v. State, 46 Ala. App. 77, 238 So. 2d 557, 558 (Ala. Crim. App. 1970)) (affidavit’s reference to repeated drug distribution coupled with statement that events occurred “in recent weeks” and “on a recent date” was not insufficient; “A statement in an affidavit for a search warrant that an informant had ‘recently’ seen or purchased narcotic drugs, when connected with other language that would lead to the conclusion that the unlawful condition continued to exist on those premises at the time of the application for the warrant, has been held sufficient to show the time when the alleged violation took place.”). Professor LaFave has observed that reliance upon the word “recently” can be problematic in some cases, particularly in circumstances in which “the relevant facts are nothing more than a one-time purchase or viewing of drugs, as to which only a brief period of time could pass before the information could be stale.” 2 LaFave, supra, § 3.7(b), at 396 (footnotes omitted). However, his treatise also acknowledges that when confronted with an affidavit asserting that critical events occurred “recently” or using other words to that effect, most courts have been inclined to hold that this language will suffice for a showing of probable cause. Id. at 395 & n.76. In this regard, we also note that the Court of Criminal Appeals in a pre-Gates case has held that an affidavit stating that “affiants have recently received information from a confidential informant” was a sufficient reference to time when considering the totality of the affidavit. See Sutton v. State, 419 S.W.2d 857, 861 (Tex. Crim. App. 1967).

Because the affidavit adequately suggested a continuing criminal operation, including “recently” obtained information from the first confidential informant, from the affiant’s own investigation, and from the second confidential informant who made the controlled buy—all of which supported the affiant’s belief that a violation was “currently” taking place—we hold that the temporal references within the affidavit allowed the magistrate to determine there was a substantial basis for concluding that a search would uncover evidence of wrongdoing. In so holding, we hasten to add that including specific dates and times is the preferred practice for preparing an affidavit supporting a request for a search warrant, and our opinion should not be misunderstood to countenance the use of vague terms such as “recently.” However, we are mindful that a grudging, negative attitude towards warrants would be inconsistent with the Fourth Amendment’s preference for searches conducted pursuant to warrants. See Gates, 462 U.S. at 236, 103 S. Ct. at 2331.

NCIS child exploitation investigator working the internet had defendant to send child pornography pictures to her. Once it was determined that the defendant was not in the military, the investigation was turned over to local police. This did not violate the Posse Comitatus Act, 18 U.S.C. § 1385. Even if it did, the exclusionary rule would not apply. United States v. Holloway, 2011 U.S. Dist. LEXIS 8160 (W.D. Ky. January 27, 2011):

The sexual exploitation of children is prohibited under the UCMJ. See United States v. Allen, 53 M.J. 402, 407 (C.A.A.F. 2000). Special Agent Lepovetsky’s under cover investigation was an attempt to stop the sexual exploitation of children as prohibited by the UCMJ. As such, her investigation falls under the independent military purpose exception. Once Special Agent Lepovetsky was able to confirm that “Consul_211” was not a member of the military, she immediately turned the investigation over to the appropriate civil law enforcement department, the Kentucky Internet Crimes Against Children Task Force. Special Agent Lepovetsky was not personally involved with obtaining the search warrant to search Defendant’s home, the search of the home itself, the seizure of any evidence, the analysis of any evidence seized, or the arrest of Defendant. Special Agent Lepovetsky’s assistance in Defendant’s case was only incidental. Defendant was not subjected to the regulatory, prescriptive, or compulsory use of military power. In situations such as this, the PCA is not violated by such assistance. See e.g. Hitchcock, 286 F.3d at 1070 (finding NCIS and CID agents’ participation in the investigation, arrest, search, seizure, and interrogation of a civilian defendant was not a violation of the PCA where an independent military purpose existed); Hayes v. Hawes, 921 F.2d 100, 103 (7th Cir. 1990) (finding no violation of the PCA where NIS agents shared information with local police about drug activity, aided in surveillance, and made the undercover buy).

Even had there been a violation of the PCA, the exclusion of the evidence would not be appropriate under the circumstances of this case. “As a general matter, the exclusionary rule is [*8] not a remedy for violations of the PCA.” United States v. Al-Talib, 55 F.3d 923 (4th Cir. 1995) (citing United States v. Griley, 814 F.2d 967, 976 (4th Cir. 1987)); United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979). Absent widespread and repeated violations of the PCA and its related regulations, a majority of courts have refused to apply the exclusionary rule. Hayes, 921 F.2d at 104 (collecting cases).

Defendant was on a cross-country Greyhound trip and several officers boarded the bus in OKC just before it was to depart, and one stood in front of the bus. They talked to passengers and got to defendant in the rear, asked for his ticket and saw he was going from a “source city” (Phoenix). They asked for consent to search his bag, and defendant gave it. Nothing was found. Defendant was nervous and looking at his feet. The officer asked to search his shoes, and defendant handed them over. Drugs were found in the shoes. The search was with valid consent under Bostick. United States v. Corral, 2011 U.S. Dist. LEXIS 8679 (W.D. Okla. January 28, 2011) [Note: I find these cases utterly unbelievable and creation of a complete legal and factual fiction. The bus can’t leave because multiple police got on. They are walking down the aisle talking to everybody. This is inherently coercive of consent, and nothing in the 20 years since Bostick was decided has changed this for me. Instead, cases like this just confirm it.]

Defendant did not show that routine destruction of the video of his stop would effect his case in a § 2255. United States v. Rumley, 2011 U.S. Dist. LEXIS 8850 (W.D. Va. January 31, 2011).*

The USMJ properly concluded that the defendant did not have to be Mirandized prior to consent to a search. United States v. Smith, 2011 U.S. Dist. LEXIS 9004 (S.D. Ga. January 31, 2011).*

A USDJ has an independent duty to review the record and recordings of the testimony before the USMJ when credibility of witnesses is challenged. LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988). After that review, the USDJ reaches the same conclusion that consent was valid. United States v. Robinson, 2011 U.S. Dist. LEXIS 8582 (N.D. Ga. January 27, 2011),* R&R United States v. Robinson, 2010 U.S. Dist. LEXIS 140679 (N.D. Ga. November 29, 2010).*

The officer in this case approached a car with two sleeping occupants and ordered them out of the car for a frisk and search. This was without reasonable suspicion or consent. The USMJ’s R&R is rejected. United States v. Mayfield, 2011 U.S. Dist. LEXIS 10078 (D. Neb. February 1, 2011)*:

However, the court is very troubled by the next step taken by the officers. In this case the officers asked the driver and passenger to get out of the car so they could pat down the occupants and search the car. There is nothing consensual about that request, particularly given the fact that the car was surrounded and blocked off by other police vehicles and a number of police officers. See Florida v. Bostick, 501 U.S. 429, 434 (1983) (if reasonable person feels as though he need not answer question put to him and may go his own way then no Fourth Amendment violation; Fourth Amendment invoked when it loses its consensual nature); see also United States v. $231,930.00 in U.S. Currency, 614 F.3d 837, 843 (8th Cir. 2010) (same). The defendant clearly was not free to leave. See United States v. Mendenhall, 446 U.S. 544, 553 (1980) (person is seized by show of authority and when freedom of movement is restrained). The officers agreed that they positioned themselves to limit the movement of the defendant. That combined with the number of officers and the directives of the officers is sufficient to constitute a seizure in this case. See United States v. Villa-Gonzalez, 623 F.3d 526, 532 (8th Cir. 2010) (number of officers, limiting movement of suspect, use of language indicating necessity of compliance, and physical touching all factors that might indicate the encounter is not consensual).

There was no gun in plain view when the officers first observed the sleeping suspects or when they initiated conversation with the occupants. It was not until after the police required that the occupants exit the vehicle that the officers saw the gun. The gun was only visible because of the open door which allowed the officers to peer in and see the bottom of the seat. There is no testimony of any kind that these occupants otherwise acted suspiciously. There is no testimony that these occupants attempted to put their hands or body in a position that would have created a fear of harm on the part of the officers. There is no evidence the occupants tried to escape. On the contrary, the two occupants appear to have been quite compliant with the directives given to them.

Tea Party Unlikely to Derail Patriot Act Renewal, by Evan Perez in the Wall Street Journal. Three provisions expire February 28:

The Patriot Act, one of the most prominent expansions of federal authority in the past decade, received overwhelming Republican backing in 2006 when it was first up for renewal. This year, even as the surge of the tea party brought to Washington a new legion of lawmakers suspicious of government power, the law again has a good chance of being reauthorized.

The first test comes this month, when three provisions of the act giving the government greater ability to monitor suspected terrorists expire and Congress must decide whether to extend them.

A CI told the police defendant had sexually explicit pictures of children on his cell phone, which defendant had shown the CI. Officers talked to two girls who were in the pictures who confirmed their identity. Officers had probable cause and exigent circumstances to seize the cell phone to secure it to get a search warrant to search it. The officers were concerned that the CI might have a change of heart and tipoff the defendant who could then have the opportunity to erase the pictures. A six day delay (including a weekend) in obtaining a search warrant for the cell phone was not unreasonable under the circumstances. United States v. Burgard, 2011 U.S. Dist. LEXIS 9893 (S.D. Ill. February 2, 2011).

Defendant’s refusal to talk to the police in jail after being Mirandized did not amount to a refusal to consent to a search. So, his roommate’s later consent was not over his denial of consent under Randolph. United States v. Trainor, 2011 U.S. Dist. LEXIS 10315 (D. N.D. January 26, 2011).*

Defendant was on parole, and he was at a friend’s house to stay for a while. “While Mr. Lowe has argued that he was merely an overnight guest at the house and thus the prospective consent didn’t apply, the Court finds that Mr. Lowe had made the house his home by the time of the search.” Alternatively, there was consent. United States v. Lowe, 2011 U.S. Dist. LEXIS 10342 (S.D. Ind. February 2, 2011).*

Defendant’s argument that he “frequently stayed” in the apartment searched contradicted his argument that officers lacked probable cause to believe he was there. Besides, officers also got consent to enter. United States v. Hancock, 2010 U.S. Dist. LEXIS 140958 (E.D. N.C. December 9, 2010):

Assuming arguendo that he has standing to challenge the search, Defendant’s contention that the officers lacked probable cause to believe he was inside the apartment directly contradicts his assertion that he “frequently stayed at [Ms. Ware’s] apartment.” [DE-25, p.2 n.1]. Defendant’s position is untenable. In order to have standing to challenge the search, Defendant must show he had an expectation of privacy in Ms. Ware’s apartment. Minnesota, 525 U.S. at 88; Bonner, 81 F.3d at 475. If indeed he “frequently stayed” at Ms. Ware’s apartment, as he maintains, the officers attempting to effect the arrest warrant would have had exceedingly reasonable grounds to believe Defendant was at Ms. Ware’s apartment. Defendant cannot have his cake and eat it, too.

Explosive- and drug-sniffing dogs’ performance is affected by their handlers’ beliefs / UC Davis study finds detection dogs may exhibit the “Clever Hans” effect from the UC Davis Health System (Feb. 1, 2011):

The performance of drug- and explosives-sniffing dog/handler teams is affected by human handlers’ beliefs, possibly in response to subtle, unintentional handler cues, a study by researchers at UC Davis has found.

The study, published in the January issue of the journal Animal Cognition, found that detection-dog/handler teams erroneously “alerted,” or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present.

“It isn’t just about how sensitive a dog’s nose is or how well-trained a dog is. There are cognitive factors affecting the interaction between a dog and a handler that can impact the dog’s performance,” said Lisa Lit, a postdoctoral fellow in the Department of Neurology and the study’s lead author.

“These might be as important — or even more important — than the sensitivity of a dog’s nose.

So, is Illinois v. Caballes based on a wrong premises such that it should be overruled?

See Drug WarRant, which gets a hat tip for this post. Update: Caballes talks of the “well trained dog,” but cases have largely ignored that concept with a “close enough for government work” mantra. I don’t think this study even gives “legs” to that concept since it means nothing in the case. Can the defense bar give it meaning?

Another update: This is an article cited inside the Davis article brought to my attention by a reader in Wisconsin: Handler beliefs affect scent detection dog outcomes by Lisa Lit, Julie B. Schweitzer, Anita M. Oberbauer in Animal Cognition published January 12, 2011. I didn’t check on it; he did. Good catch.

Defendant who was stopped in a high crime area who wouldn’t look at the officer and wouldn’t move his hands from his groin area created reasonable suspicion. United States v. Greenwood, 2011 U.S. Dist. LEXIS 10123 (E.D. Pa. February 1, 2011).*

Defendant was in violation of most of the conditions of his probation for failure to report and not being found where he was supposed to be. The probation search of his house and car when he finally appeared was reasonable. United States v. Brown, 2011 U.S. Dist. LEXIS 9719 (S.D. Ga. January 3, 2011).*

Defendant was on parole for drug offenses, and he got arrested for another. That was reasonable suspicion for a parole search of his house. United States v. Wilcher, 2010 U.S. Dist. LEXIS 140856 (N.D. Ga. December 16, 2010).*

Defendant’s consent was found voluntary. He admitted that he consented but felt that he had no right to refuse consent and that wasn’t enough. United States v. Smith, 2010 U.S. Dist. LEXIS 140832 (S.D. Ga. December 22, 2010).*