Gant does not permit a search incident to rebut potential defenses to whatever the basis of the stop was. State v. Mbacke, 2011 N.C. App. LEXIS 65 (January 4, 2011):

We disagree with the State’s reasoning because we perceive two problems arising from the highly fact-driven nature of the analysis required under Gant. First, the defenses of a good faith mistake, duress, or inadvertence could have also applied to traffic offenses such as that involved in Gant, where, for example, the defendant could have argued that he was driving without a license while under circumstances of duress. See e.g., State v. Brown, 182 N.C. App. 115, 646 S.E.2d 775 (2007) (discussing the applicability of the defense of duress to motor vehicle charges). We interpret the Supreme Court’s holding in Gant to require an officer to suspect the presence of more direct evidence of the crime of arrest than the highly indirect circumstantial evidence the State contends may be necessary to rebut possible defenses.

The court credits the officer’s testimony that there was a basis for the stop and the seizure of $4,000 in cash off the defendant, despite the fact that the court also included information that the officer was fired by the department for mishandling evidence in another case after this one. United States v. Williams, 2010 U.S. Dist. LEXIS 139834 (M.D. Ala. December 6, 2010).*

Contemporaneous search incident of an iPhone was justified under all the cases that deal with pre-technology search incidents of closed containers. United States v. Hill, 2011 U.S. Dist. LEXIS 4104 (N.D. Cal. January 10, 2011):

This Court recognizes that many modern cell phones, like computers, are capable of storing large amounts of personal information. However, absent guidance from the Supreme Court or the Ninth Circuit, the Court is unwilling to conclude that a cell-phone that is found in a defendant’s clothing and on his person, as is the case here, should not be considered an element of the person’s clothing. Accordingly, the Court concludes that, on the facts of this case, Hill’s iPhone should not be treated any differently than, for example, a wallet taken from a defendant’s person. See, e.g., United States v. Passaro, 624 F.2d 938, 943-44 (9th Cir. 1980); United States v. Ziller, 623 F.2d 562, 562-63 (9th Cir. 1980).

[One might get the impression that the judge was holding his nose when saying this.]

The affidavit for the search warrant was not based on a fair probability that the defendant had a gun there but that a codefendant likely left one there in the course of the crime. The affidavit was sufficient. United States v. Myers, 2011 U.S. Dist. LEXIS 4047 (M.D. Fla. January 14, 2011).*

Defendant’s objections to the USMJ’s R&R is overruled. The USMJ makes the credibility determinations, and the district judge applies the law. This finding could not be overruled. United States v. Schmitz, 2011 U.S. Dist. LEXIS 4050 (M.D. Fla. January 14, 2011).*

SWAT raid gone bad: Culosi family to receive $2 million from Fairfax by Tom Jackman in the Washington Post:

Nearly five years after a Fairfax County police officer shot and killed an unarmed man outside his townhouse, the county has agreed to pay the man’s parents $2 million to settle their lawsuit against the officer.

The death of Salvatore J. Culosi, a 37-year-old optometrist who lived in the Fair Oaks area, sparked outrage over the use of a SWAT team to arrest a man suspected of the nonviolent crime of taking bets on football games. Fairfax police were aware that Culosi had no criminal history or connection to weapons.

In a wiretapping case, the diverse places that defendant stored drugs made the use of a search warrant ineffective as an investigative device because only a small part of his stash would be recovered, and the execution of warrants would blow their cover and cause the rest to disappear. This was necessity for a wiretap. United States v. Stewart, 2010 U.S. Dist. LEXIS 64720 (N.D. Ill. June 29, 2010)*:

Sixth, Agent Biegalski avers that the use of search warrants would have been ineffective and compromised the investigation. (See Biegalski Aff. PP 65-68.) Because Defendants stored contraband in multiple locations, many of which were unknown to the Government, any seizure would have represented just a fraction of the drugs and money in Defendants’ possession. (See id.) Moreover, execution of search warrants would have tipped off Defendants to the Government’s investigation, possibly causing them to flee the jurisdiction, destroy evidence, or step up counter-surveillance efforts. (See id.) Warrant-backed searches would therefore have been ineffective in determining the full scope of the Atkins conspiracy, thus supporting Judge Holderman’s determination of necessity. See Gray, 410 F.3d at 343 (holding that search warrant would be ineffective in obtaining all of drug gang’s contraband and would tip off defendants, thus supporting necessity of wiretap).

The officers’ equivocation on the consent issue was reason enough for the USMJ to conclude that the government failed to prove that the search of defendant’s property for a gun was by consent or reasonable, and the USMJ recommendation to grant the motion to suppress is granted. United States v. Taylor, 2010 U.S. Dist. LEXIS 64633 (W.D. Tenn. June 29, 2010),* R&R 722 F. Supp. 2d 937 (W.D. Tenn. May 5, 2010).*

Plaintiff’s arrest for possession of a weapon in his luggage while on an interstate trip by air arguably legal under 18 U.S.C. § 926A did not make his arrest for possession of a firearm in violation of N.Y. law a false arrest. Torraco v. Port Authority of New York and New Jersey, 615 F.3d 129 (2d Cir. 2010).* [Volokh Conspiracy here.]

Consent given by a driver with passengers in the car lawfully resulted in detention of the passengers while the search occurred. The officer’s comment that he was arresting everybody unless somebody claimed it resulted in defendant’s admission that he would “take the rap” and was a Miranda violation. England v. State, 46 So. 3d 127 (Fla. App. 2d DCA 2010).*

Farmer was accused of sale of counterfeit goods, and a seizure of the goods led to a seizure of drugs. He pled to the latter, and the counterfeit goods charge was dismissed. He was entitled to return of the goods because the seizure was not supported by a post-deprivation hearing. Farmer v. Florence County Sheriff’s Office, 390 S.C. 358, 701 S.E.2d 48 (2010)*:

The Sheriff’s Office has not provided any concrete reasons to justify its refusal to return Farmer’s merchandise or any meaningful argument that its delay in instituting forfeiture proceedings was justified; indeed, it has even asserted that law enforcement need not provide any reason whatsoever to hold lawfully seized goods beyond the fact that a warrant had been issued for the seizure. In making these arguments, however, the Sheriff’s Office appears to disregard the recognized purpose of a forfeiture hearing, which is “to confirm the state had probable cause to seize the property in question.”

Officers had probable cause to believe that defendant lived in a particular hotel room. The CI gave the hotel, and the police established that defendant was there, and that was corroboration. United States v. Oneal, 2010 U.S. Dist. LEXIS 111744 (N.D. Cal. October 13, 2010).*

The fact a warning ticket was issued rather than a traffic ticket did not show that the stop was without probable cause. There was, however, probable cause for the stop for speeding. Defendant validly consented to the search of his car when the paperwork was returned. United States v. Peguero, 2010 U.S. Dist. LEXIS 111670 (N.D. Fla. October 7, 2010).*

Plaintiffs’ claim against defendants for executing a search warrant unreasonably survived summary judgment on qualified immunity. Officers got a search warrant for plaintiff’s property to search for a person missing since 1997. They drilled holes in plaintiff’s concrete garage floor, and a cadaver dog allegedly alerted. They emptied the garage and started digging. They piled dirt on plaintiff’s belongings considering it “junk.” Their digging down 15′ undermined the structure, and they supported it on their own. They found nothing and left, and they felt unobliged to do anything to restore the condition of the property. Ground water from rain created a pond in plaintiff’s garage. This was a “meaningful interference” with plaintiffs’ property and fact questions remain on whether it was reasonable [and it certainly seems from the opinion that it was not], and this right was clearly established at the time. Spangler v. Wenninger, 388 Fed. Appx. 507 (6th Cir. 2010) (unpublished):

. . . The destruction of property is a “meaningful interference” with personal property and constitutes a seizure within the meaning of the Fourth Amendment. Jacobsen, 466 U.S. at 124-25. The manner in which the seizure is conducted is reviewed for “reasonableness, and in a § 1983 action the District Court must determine not whether the destruction was ‘reasonably necessary to effectively execute the search warrant’ but whether the plaintiff has raised factual issues to be submitted to a jury on this point.” Hill v. McIntyre, 884 F.2d 271, 278 (6th Cir. 1989) (quoting Tarpley v. Greene, 684 F.2d 1, 9 (D.C. Cir. 1982)).

Photographs of the property following the search show that the property was left in complete disarray with piles of dirt placed all over Plaintiffs’ vehicles and property. While Defendants claim that they had no choice but to pile dirt on Plaintiffs’ personal property, there was evidence that there were other areas of the property where the dirt or personal property could have been placed. Defendants could have sought to expand the search warrant to allow for the placement of the extracted dirt in these other areas, but they did not. They have failed to identify any exigent circumstances that explain their failure to do so although Plaintiffs’ two-acre property could have easily accommodated this. Wenninger was at the site on several occasions, operating a Bobcat and piling dirt on Plaintiffs’ property. The officers were aware that doing this would damage Plaintiffs’ property. Additionally, Defendants failed to fill the hole that they dug during the search, leaving a hole that was up to fifteen feet deep in the garage that became filled with water. Defendants fail to explain why they did not fill the hole, and merely argue that they believed that they were not required to do so. However, Wenninger testified that the officers were aware that the hole could become filled with water upon conclusion of the search. The totality of the circumstances did not warrant the knowing destruction of Plaintiffs’ personal property by unnecessarily piling dirt on it, and failing to fill the large hole that remained in the garage. Viewing the evidence in the light most favorable to the nonmoving parties in this case, Plaintiffs, we find that genuine issues of material fact remain concerning the reasonableness of Defendants’ conduct here.

The use of a cover story for a stop to make it safer for officers does not prevent the use of the collective knowledge doctrine. It also applies between federal and state officers. United States v. Williams, 627 F.3d 247 (7th Cir. 2010):

Other appeals courts similarly have concluded that the application of the collective knowledge doctrine is unaffected by an officer’s use of a cover story to disguise a stop as a mere traffic stop. See United States v. Chavez, 534 F.3d 1338, 1341-42 (10th Cir. 2008) (where officer stopped suspect at DEA’s request, the fact that the officer pretended that the stop was for a failure to turn on headlights in order to conceal a confidential informant’s identity and protect the integrity of the DEA investigation did not preclude the application of the collective knowledge doctrine); United States v. Ramirez, 473 F.3d 1026, 1038 (9th Cir. 2007) (Kozinski, J., concurring) (“disguising the stop as a ‘traffic stop’ was a valid law enforcement tactic calculated to ensure an officer’s safety … [and] did not change the nature of the stop,” or the fact that the stop was made at the direction of an officer who had probable cause, such that the collective knowledge doctrine applies). Moreover, the Fifth and Tenth Circuits have considered instructions like the one Gutierrez gave Simon, and concluded that such an instruction does not bar the application of the collective knowledge doctrine.

100 Google Search Tricks for the Savviest of Students.

I admit it; I use Google or Bing many times a day, and I’m an old guy.

On CBS2 New York: Feds Regret Invading ‘Innocent’ Family’s NY Home:

The Drug Enforcement Administration is apologizing to a suburban family that claims agents terrorized them during a mistaken drug raid.

David McKay of Spring Valley told The Journal News that he was forced into the snow in his underwear early Thursday. He says officers pointed guns at his daughter and threatened to shoot the family dogs.

DEA Special Agent John Gilbride issued a statement Friday regretting that “the innocent McKay family” was mistakenly rousted when agents went to the wrong house to serve a warrant.

See Spring Valley man: Cops targeted wrong address, rousted my family; DEA Targets Wrong House, Threatens 13 Year Old Girl; Family Held At Gunpoint After Home is Mistakenly Raided By Police.

Orin Kerr on Volokh Conspiracy:Update on United States v. Cotterman, Ninth Circuit Case Applying the Border Search Exception to Computers.

The court credits that there was probable cause to search defendant’s car for evidence of his failure to register as a sex offender because he was living in his car. Evidence could have proved how long he was in the jurisdiction and should have registered. Also, the warrantless seizure of the vehicle was proper rather than leaving it on a parking lot. United States v. Miller, 2011 U.S. Dist. LEXIS 3459 (S.D. Ohio January 6, 2011).*

Defendant’s second motion to suppress after a three day hearing on the first one is dismissed because of issue preclusion. United States v. Fernandez-Santos, 2011 U.S. Dist. LEXIS 2763 (D. P.R. January 10, 2011).*

There was probable cause for the traffic stop that quickly escalated first to reasonable suspicion then to probable cause. United States v. Freeman, 2010 U.S. Dist. LEXIS 139568 (C.D. Ill. October 6, 2010).*

Defendant’s suppression motion was decided without a hearing on the representations of the government and admissions from the defendant that there was probable cause for the stop and search of his car in a methamphetamine conspiracy, and, while the record is not clear where he was standing when the car was searched, Gant was thus inapplicable. United States v. Ball, 2010 U.S. Dist. LEXIS 139685 (W.D. Mo. December 9, 2010).*

Salon.com: Homeland Security’s laptop seizures: Interview with Rep. Sanchez by Glenn Greenwald.

Orin Kerr writes on Volokh Conspiracy: C-SPAN Washington Journal on Kentucky v. King and Fourth Amendment Rights. Kerr was on C-SPAN talking about King.

A warrant for grass clippings was essentially a moot point since it was possible to seize the grass and data about it under open fields or the plain view doctrine. State v. Meduna, 18 Neb. App. 792, 2011 Neb. App. LEXIS 2 (January 4, 2011) (opinion first withdrawn then reposted):

Initially, Meduna alleges that the trial court erred in denying his motion to suppress evidence illegally seized by Cook, the State’s rangeland management specialist. He argues that although Cook’s duty was to seize grass clippings as specified in the warrant, Cook decided to change course and attempted to determine the amount of cover on the land and the amount of utilization of the grasses. Meduna claims that this “data gathering” by Cook “far exceeded the scope of the warrant” and that, consequently, Meduna’s right to be free from unreasonable searches and seizures was violated. Brief for appellant at 8. We disagree for a number of reasons.

. . .

As Cook explained in his report on the range condition inventory at 3-Strikes Ranch, the original intention was to “clip standing plant material to estimate forage production for each site.” However, Cook was unable to do so because the grasses on the range were extremely sparse. Forced to improvise under the circumstances, Cook employed a different methodology. Instead of clipping grass, Cook tossed a hoop onto the ground at six different locations throughout Meduna’s ranch. He visually estimated the plant levels within the hoop at each site, took a “GPS reading” of his precise location, and photographed each observation point.

Meduna asserts that Cook’s visual estimation “far exceeded the scope of the warrant.” However, the affidavit in support of that warrant recites, as stated above, that “stocking rates for the pastures can be determined by the grass species and condition.” Thus, not only did Cook engage in less invasive activity than the warrant authorized because he did not seize any items from the ranch, his assessment as to the stocking rate for the range was contemplated by the affidavit upon which, Meduna does not dispute, probable cause for the search was established.

Moreover, under the open fields doctrine, Meduna had no reasonable expectation of privacy on the range. Pursuant to that well-settled legal principle, open fields do not provide the setting for those intimate activities that the Fourth Amendment is intended to shelter from government interference or surveillance. See State v. Ramaekers, 257 Neb. 391, 597 N.W.2d 608 (1999). Here, aside from the curtilage—that area so intimately tied to the home that an individual reasonably may expect that the area in question will be treated as the home itself—the range at 3-Strikes Ranch is an open field and is thus not protected from government inspection. See id. There is uncontroverted testimony from Edens at the November 10, 2009, suppression hearing that none of the six sites observed by Cook during his inventory of 3-Strikes Ranch are within the curtilage of Meduna’s home.

We additionally agree with the State that Cook’s observations were clearly admissible under the plain view doctrine.

On CNET.com: WikiLeaks volunteer hires lawyers in Twitter fight over subpoenas for the Twitter account.

An ex-WikiLeaks volunteer has hired American lawyers to oppose the U.S. government’s efforts to obtain the contents of her Twitter account, CNET has learned.

Birgitta Jónsdóttir, a member of the Icelandic parliament who helped with WikiLeaks’ release of a classified U.S. military video, is being represented by the San Francisco-based Electronic Frontier Foundation.

“We’re looking at options and various things we can do to help our client,” EFF legal director Cindy Cohn said yesterday. “She’s disturbed that her information is being sought.”

On Friday, Twitter notified Jónsdóttir and a handful of other subscribers that the U.S. Justice Department had obtained a court order for their “subscriber account information.” The order covers possible accounts linked to WikiLeaks, including those of Bradley Manning, the U.S. Army private accused of leaking classified documents; Seattle-based WikiLeaks volunteer Jacob Appelbaum; Dutch hacker and XS4ALL Internet provider co-founder Rop Gonggrijp; and WikiLeaks editor Julian Assange.

Cohn said the EFF was representing only Jónsdóttir and not any of the other targets of the order (PDF), which was signed by U.S. Magistrate Judge Theresa Buchanan in Alexandria, Va. “They all have separate stories,” she said.

Read more here. The order, linked in the quote, is here and out of the Eastern District of Virginia dated December 14, 2010. It has a Grand Jury case number so the supporting documentation is not yet public. The person subpoenaed apparently released it.

The important information is the case number: A U.S. grand jury in the Eastern District of Virginia is investigating WikiLeaks.

Order to unseal his here.

Hat tip to PogoWasRight.

Search incident of a cell phone just to recover its IMSI number from the battery compartment was valid. This is far distinguishable from getting data off the phone. United States v. Green, 2010 U.S. Dist. LEXIS 139437 (D. Mass. January 11, 2010):

Green next argues that even if the seizure of the cell phones were justified, the opening of the phones and the removal of the batteries to acquire the IMSI numbers weeks later amounted to a “search” for which a warrant was required.

Here, the intrusion caused by the inspection was minimal. It is important to note that the agent did not turn the phones on, nor did he access the data stored in the phones, such as address books, text message histories, photographs, or emails. Compare, e.g., United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008) (stating that a defendant has a reasonable expectation of privacy in the “wealth of private information” within a cell phone, including emails, text messages, call histories, address books, and subscriber numbers); United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. 2009) (cell phone owner has reasonable expectation of privacy in electronic data stored on phone). The only information gleaned from the searches was the IMSI numbers for each phone. They are akin to serial numbers. See United States v. Jadlowe, __ F.3d ___, 2010 WL 4962855, at *8 n.23 (1st Cir. Dec. 3, 2010). They are unique to a particular phone and serve to identify it.

There is nothing wrong with an agent’s examining an item lawfully seized to determine its particular identifying number. It is accepted that the police may ask a person his name. See Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 185 (2004) (“Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.”); Florida v. Bostick, 501 U.S. 429, 434-35 (1991) (“We have stated that even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual [and] ask to examine the individual’s identification ….”) (internal citations omitted); Young, 105 F.3d at 6 (“Police may approach citizens in public spaces and ask them questions without triggering the protections of the Fourth Amendment”). Similarly, they may make a cognate inquiry of an inanimate object. It is not significant that some manipulation of the device was necessary to get to the identifying number, just as a wallet or purse lawfully in police possession might legitimately be opened to see if there is identifying information within. These circumstances are different from those in Arizona v. Hicks, 480 U.S. 321 (1987), where the items examined for their serial numbers were not lawfully seized prior to the inspection.

A two year lapse between two search warrants for documents being issued did not make it stale. There was reason to believe the records would still be around. United States v. Quy Le, 2011 U.S. Dist. LEXIS 2243 (E.D. Cal. January 4, 2011):

While the year-long period between the search of the 1640 High Street residence and the search at issue here is significant, it does not destroy probable cause. There is no reason to think that the kind of documentary evidence sought here would have been destroyed in that time period. See United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991) (“One may properly infer that equipment acquired to accomplish the crime and records of the criminal activity will be kept for some period of time. When the evidence sought is of an ongoing criminal business of a necessarily long-term nature, such as marijuana growing, rather than that of a completed act, greater lapses of time are permitted if the evidence in the affidavit shows the probable existence of the activity at an earlier time.”) (internal citations omitted). Based on the information in the affidavit, this court concludes there was probable cause for the issuance of the warrant.

Virginia v. Moore does not apply to mistakes of law. In Moore, there was no dispute that a violation occurred. Here, the officers stopped suspected MS-13 gang members for a MPC 25 violation (loitering in violation of city code on private property). MPC 25 violations can’t occur on public property, so the stop was invalid. Moreover, there was no justification given for a Terry frisk other than the fact that MS-13 gang members have been known to be violent in the past and the officer did not want to be the first injured by them. United States v. Hernandez, 2011 U.S. Dist. LEXIS 2449 (N.D. Ill. January 6, 2011).

It seems doubtful that there was sufficient probable cause at the time the warrant was issued based on transactions a while ago and the inference of defendant’s involvement was weak, the good faith exception was enough to save this search. United States v. Catalano, 2011 U.S. Dist. LEXIS 2504 (D. Mass. January 11, 2011):

… It is not implausible, of course, that Catalano’s business premises would serve as a place where he would “stash” drugs and/or drug-related cash and records. Nevertheless, on the information presented in the affidavit, concluding that is more of a speculation than an inference.

Unfortunately for the defendant, however, the “good faith exception” announced in United States v. Leon, 468 U.S. 897 (1984), applies and forecloses suppression of the evidence seized from 1451 South Main Street, even if the affidavit was inadequate to establish the necessary nexus. “Under Leon, the good faith exception applies when government agents rely on a warrant in objective good faith and in the interest of justice suppression is generally inappropriate.” United States v. Woodbury, 511 F.3d 93, 99 (1st Cir. 2007). The recognized exceptions to the good faith exception are here inapplicable. …

There was a “fair probability” (Gates) that evidence of an elder fraud case would be found in defendant’s property, including computers, to justify the search. “‘Few places are more convenient than one’s residence for use in planning criminal activity and concealing fruits of a crime.’ United States v. Hailed, 22 F.3d 779, 780 (8th Cir. 1994), cert. denied, 513 U.S. 882 (1994) (citing United States v. Green, 634 F.2d 222, 226 (5th Cir. 1981)). For all of these reasons, the Court concludes that the Queen Avenue warrant was valid.” And, the good faith exception would save the warrant, too. United States v. Scott-Kelley, 2010 U.S. Dist. LEXIS 139343 (D. Minn. November 9, 2010), adopted 2011 U.S. Dist. LEXIS 2218 (D. Minn. January 10, 2011).*

Is the Fourth Amendment Relevant in a Technological Age? by Christopher Slobogin of Vanderbilt Law School on SSRN. Abstract:

This work will be a chapter in a forthcoming book in The Future of the Constitution series, edited by Jeffrey Rosen and Benjamin Wittes and published by the Brookings Institute. Over the past 200 years, the Fourth Amendment’s guarantees have been construed largely in the context of what might be called “physical searches” – entry into a house or car; a stop and frisk of a person on the street; or rifling through a person’s private papers. But today, with the introduction of devices that can see through walls and clothes, monitor public thoroughfares twenty-four hours a day, and access millions of records in seconds, police are relying much more heavily on what might be called “virtual searches,” investigative techniques that do not require physical access to premises, people, papers or effects and that can often be carried out covertly from far away. The Supreme Court’s current Fourth Amendment jurisprudence – specifically, its “knowing exposure,” “general public use,” “contraband-specific,” “assumption of risk” and “special needs” doctrines – has both failed to anticipate this development and continued to ignore it. This article describes this jurisprudence and how it can foster law enforcement abuse, mission creep, mistaken seizures and physical searches, and an oppressive atmosphere even for the innocent. It then outlines a more technologically-sensitive Fourth Amendment framework.

Orin Kerr on Volokh Conspiracy and on CrimeAndConsequences.