An uncorroborated anonymous tip that a man pointed a gun in the air but never fired it was not sufficient to justify a stop and frisk. Commonwealth v. Gomes, 458 Mass. 1017, 937 N.E.2d 13 (2010), aff’g Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 917 N.E.2d 231 (2009):

The Commonwealth’s failure to introduce a recording of the 911 telephone call at the suppression hearing hampered the ability of the parties and the judge properly to address the caller’s reliability. Compare Commonwealth v. Mubdi, 456 Mass. 385, 396-397, 923 N.E.2d 1004 (2010) (where recording of 911 call not played at suppression hearing, court’s assessment of caller’s basis of knowledge and veracity was limited), with Commonwealth v. Depina, 456 Mass. 238, 243-245, 922 N.E.2d 778 (2010) (playing of 911 call allowed court to determine caller’s basis of knowledge and that her statements were reliable as excited utterances). The Commonwealth would be well advised in the future to make reasonable efforts to introduce such evidence.

. . .

The defendant moved to suppress the physical evidence under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. In denying the motion, the judge concluded that the information provided by the dispatch “was not simply that an individual was carrying a firearm, but rather that he was standing on the street, pointing the gun in the air. Such behavior suggested a potential threat to public safety.” We disagree that the evidence justified the stop and frisk of the defendant.

There is no “firearm exception” to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip. See Florida v. J.L., 529 U.S. 266, 272-274, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). This case involves such a tip, as there was no evidence about the 911 caller’s identity or identifiability. See Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 794-795, 917 N.E.2d 231 (2009), and cases cited. See also Florida v. J.L., supra at 270-271. Moreover, there was no evidence of the caller’s basis of knowledge or veracity; no predictions by the caller of facts later confirmed by the police, to show the caller had inside knowledge; and no evidence of corroboration by the police of more than innocent details, i.e., the defendant’s presence near a green Honda, his race, and his gray shirt. See Florida v. J.L., supra at 270-272. Thus, there was no basis to conclude that the 911 caller’s report of possibly criminal behavior was reliable. See id. at 272 (reasonable suspicion requires that tip be reliable “in its assertion of illegality, not just in its tendency to identify a determinate person”). See also Commonwealth v. Gomes, supra at 795-796, and cases cited.

Officers went to a house for a knock-and-talk, admittedly with no justifiable information about criminal activity. When they knocked, somebody looked out the blinds, and then four people started bailing out the back sliding door. The last one was stopped, and detained, and, in plain view inside, drug paraphernalia could be seen. This view was a violation of the Fourth Amendment because there was no justification for a detention in the first place. Galindo-Eriza v. State, 306 Ga. App. 19, 701 S.E.2d 516 (2010):

Furthermore, the totality of the circumstances here did not provide the officers with the reasonable articulable suspicion necessary for elevating this first-tier encounter to a second-tier Terry stop. There was no testimony that these occupants of the house were specifically suspected of criminal activity or that the officers even knew who they were. In fact, the totality of the circumstances here consisted of the occupants running from a house that the police had on one occasion observed a suspected drug dealer enter. However, neither the occupants’ presence in the house nor their running away from the officers could provide the officers with a reasonable articulable suspicion. In Black, supra, 281 Ga. App. at 44-47(1), we held that officers had no reasonable articulable suspicion to justify detaining or arresting an individual who had just left a residence that had been under surveillance for illegal drug activity. In State v. Mallard, we held that officers had no reasonable articulable suspicion to justify stopping a vehicle that had just left a residence upon which officers were preparing to execute a search warrant for marijuana. Here, as the testifying officers acknowledged, no warrant had been issued and no search was imminent. In State v. Harris, we found that officers had no reasonable articulable suspicion to detain a defendant based on nervousness and on defendant’s cohort’s exiting and then immediately returning to a motel room upon seeing police. In this matter, the mere fact that during this first-tier encounter the occupants of the house sought to “be let alone” by avoiding contact with police did not create an objective articulable suspicion. See Black, supra, 281 Ga. App. at 46(1); Harris, supra, 261 Ga. App. at 122. Accordingly, Galindo-Eriza’s and the other occupants’ exercise of their right to avoid police gave the officers no grounds to detain them and conduct an investigative stop.

The City of Milwaukee’s “winter rules” that allow the city trash collectors to go on the curtilage to get trash so the trash containers will not be left out to interfere with snowplow where the homeowner leaves the containers visible to the collectors creates consent to enter to get the trash. United States v. Simms, 626 F.3d 966 (7th Cir. 2010):

It appears, moreover, that the “winter rules” had the force of law, thus creating an easement to enter the defendant’s property to collect garbage. Milwaukee Code of Ordinances § 79-5(3) makes it “the responsibility of the owners and tenants of every premises where solid waste is collected to provide a clear and unhindered path to all containers. The path shall be a width specified by the commissioner and shall be free of hindrances such as, but not limited to, large debris, vehicles, locked fences, animals, ice or 3 or more inches of snow” (emphasis added).

. . .

We are not prepared to say that a place in which garbage carts or cans are kept can never be part of the curtilage. People who live in cities and have small yards prefer to leave their garbage carts in an alley, if there is one next to their house. If not, they will have to leave the carts in their yard, often in a shed at the edge of the yard; in our case the carts were left next to the segment of the driveway that is inside the fenced yard.

But the fact that the defendant’s garbage carts were (we may assume) within the curtilage of his home does not conclude the constitutional analysis. For there is the ordinance, and there is a related issue of apparent consent to the search. Suppose that every Friday the defendant opened his gate, placed his garbage carts in the middle of the driveway just inside the open gate, and by these moves signaled that he wanted the garbage collectors to enter the yard, wheel the garbage carts to the street, empty them, and return them to their place in the driveway. This would show that nothing very private was going on in the yard on garbage-collection day. By leaving the gate open when winter rules were in force, without notice that the garbage collectors were not to enter—a notice they would not be bound to obey because it would violate the ordinance—the defendant allowed a reasonable person to think that nothing private was going on in his yard because he could expect the garbage collectors to enter it and wheel away the carts, consistent with the winter rules of which all homeowners were notified. That would be the natural inference from the circumstances although it is possible that the gate was open only because the snow prevented it from being shut. (But then the defendant must have opened it earlier.)

We conclude that the garbage search was lawful—that it was authorized by an appearance of consent to collect the garbage from the fenced yard under winter rules with the gate open. But there is another Fourth Amendment issue: whether the search of the defendant’s car that yielded the gun that provided the basis for his mandatory 15-year sentence as an armed career criminal was permissible.

Police conducting undercover surveillance in preparation for executing the warrant to search the defendant’s house saw him drive his car to his house, park it across the street, walk to another car, which had just backed into his driveway, take from the trunk of that car a package that a police officer testified was consistent with the way that he’d seen marijuana packaged before, and carry the package into his house. The police had every reason to think the package contained drugs (as indeed it did); the question is whether they had probable cause to think there was contraband or evidence of crime in the defendant’s car as well. The answer is yes. They had reason to believe that he was a drug dealer and used his car in his drug business. Hence the car probably contained money, a gun, or evidence (even if just trace quantities) of illegal drugs, especially since the defendant was driving to a rendezvous with another drug dealer. Cf. United States v. Stotler, 591 F.3d 935, 939-40 (7th Cir. 2010).

Moreover, he was about to be arrested, and jailed indefinitely. His car could not be left unattended indefinitely. Eventually it would have been impounded by the police and subjected to an inventory search. The discovery of the gun was thus inevitable. Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); United States v. Stotler, supra, 591 F.3d at 940.

In a nuisance civil case, a discovery order under Alaska Civil Rule 34 [similar to F.R.C.P. 34] required plaintiff to submit to an inspection for hazardous materials. The order was narrowly tailored to protect privacy interests, including the Fourth Amendment. Whittle v. Weber, 243 P.3d 208 (Alaska 2010):

Other jurisdictions have used similar balancing tests and considered similar factors when reviewing discovery requests for entry onto private property. Overall, to determine whether an inspection is appropriate, courts “must balance the respective interests by weighing the degree to which the proposed inspection will aid in the search for truth against the burdens and dangers created by the inspection.”17 Most courts focus on the second Jones [v. Jennings] factor: the “compelling interest” element. To determine whether a compelling interest exists, courts scrutinize the relevance of the proposed inspection to the issue in the legal action. The Kentucky Supreme Court, looking to federal courts’ practices, observed that “[i]n each case, the place to be inspected is somehow ‘at issue’ in the underlying law suit.”18 Thus, other jurisdictions have concluded that the property or item to be inspected must be directly connected with the main issue of the legal action; some have determined that this “nexus” must appear on the face of the discovery order.19 Besides focusing on the nexus between the location and the legal cause of action, courts may also consider additional factors that connect the inspection to the lawsuit; for example, whether a legal action has begun,20 or whether the inspection is necessary (i.e., the information cannot be obtained through other avenues).21

17 Welzel v. Bernstein, 233 F.R.D. 185, 186 (D.D.C. 2005) (internal quotation marks omitted); see also DUSA Pharms., Inc. v. New England Compounding Pharmacy, Inc., 232 F.R.D. 153, 154 (D. Mass. 2005) (denying motion to compel inspection where “any benefit from the inspection … is outweighed by the burdens that such inspection will impose”).

18 Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796, 802 (Ky. 2000); see also Belcher v. Basset Furniture Industrs., Inc., 588 F.2d 904, 910 (4th Cir. 1978) (“Most cases involving on-site inspections concern a given object on the premises which is the subject matter of the action ….”); Welzel, 233 F.R.D. at 186 (“In cases in which a site inspection has been allowed, the rationale has often been because the specific location relates to the subject matter of the cause of action.”).

19 See Wal-Mart Stores, Inc., 29 S.W.3d at 802 (requiring a “nexus between the premises to be inspected and the underlying cause of action” and that “this nexus must appear on the face of the order”).

20 See, e.g., Lake Charles Harbor & Terminal Dist. v. Phoenix Dev. Co., 624 So. 2d 972, 974 (La. App. 1993) (holding that trial court lacked authority to allow entry on land before suit was filed).

21 See, e.g., DUSA Pharms., 232 F.R.D. at 154 (denying motion to compel entry where “the defendant [had] offered plaintiffs access to its premises under reasonable terms” and “alternative and reasonably adequate methods of discovery” were available).

On DrugWarRant.com by Pete Guither: Dogs are like the Supreme Court. Often wrong:

One of the worst Supreme Court decisions of recent years was Caballes v. Illinois, where Justice Stevens wrote for the majority that merely having a dog accuse you was enough to justify a 4th Amendment search with no other suspicion needed. He wrote:

A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”

… and with that, he put the Supreme Court seal of approval on police fishing expeditions.

Defendant was stopped while driving his victim’s car in Maryland, and the officer saw blood on him. Blood was drawn in Maryland and sent back to Massachusetts for testing. Defendant was not prejudiced by how the blood draw was done in Maryland, and it complied with the requirements of Massachusetts law. Commonwealth v. Banville, 457 Mass. 530, 931 N.E.2d 457 (2010):

At such a hearing the judge “must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other.” Id. at 836, quoting Matter of an Investigation into the Death of Abe A., 56 N.Y.2d 288, 291, 437 N.E.2d 265, 452 N.Y.S.2d 6 (1982). Such a hearing need not extend beyond affidavits and documentary evidence. Commonwealth v. Maxwell, 441 Mass. 773, 779, 808 N.E.2d 806 (2004). Written findings are preferred, but their absence “is not fatal where the record plainly supports the conclusion that any weighing of these factors would tilt heavily in favor of granting the Commonwealth’s [application for the search warrant].” Id. at 779 n.13. See Commonwealth v. Williams, 439 Mass. 678, 685-686, 790 N.E.2d 662 (2003). The defendant does not suggest that any of these procedures are required under Maryland law.

Here, the record reflects that the warrant application plainly satisfies Massachusetts evidentiary requirements. Murder and rape are serious crimes. DNA evidence that definitively identifies the victim’s blood or other bodily fluids on the defendant’s person, or his saliva on the victim’s body in areas suggesting sexual activity, is of great importance to the investigation. Finally, the intrusiveness of a buccal swab is minimal. See Commonwealth v. Maxwell; Commonwealth v. Williams, supra. Although there was no adversary hearing, the defendant has offered no argument that might have been made on his behalf at such a hearing, other than a contest of probable cause. If the Commonwealth had waited to apply for a warrant to obtain a buccal swab from the defendant, an adversary hearing would have been held and, based on the information in this application, a search warrant probably would have issued. The defendant has failed to show that the absence of an adversary hearing created a substantial likelihood of a miscarriage of justice.

This really begs the question: What if the blood draw was in complete accord with the other state’s law? What deterrence is there in Massachusetts for a Maryland law enforcement officer doing what is required of him?

The defendant has the burden of showing that police conduct in this warrantless arrest case was unreasonable. State v. Woodard, 314 S.W.3d 86 (Tex. App. – Ft. Worth 2010) (2-1):

Proper police conduct is presumed. See Amador, 221 S.W.3d at 672-73. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Id. (citing Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986); Derichsweiler v. State, 301 S.W.3d 803, 808 (Tex. App.–Fort Worth, pet. filed); Morris v. State, 50 S.W.3d 89, 94 (Tex. App.–Fort Worth 2001, no pet.). The dissent appears to overlook the first prong of this presumption: a defendant must establish that (1) a search or seizure occurred (2) without a warrant. See Amador, 221 S.W.3d at 672; Davidson v. State, 249 S.W.3d 709, 717-18 (Tex. App.–Austin 2008, no pet.) (citing Russell, 717 S.W.2d at 9). Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 673; Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492.

Here, the trial court erroneously applied the law to the facts in concluding that “Officer John Warner failed to articulate specific facts that supported a reasonable suspicion that [Woodard] had committed any criminal offense before [he] performed the investigative detention of Mr. Woodard on May 17, 2008.” [Emphasis added.] There is no evidence that Appellee was “seized” prior to Officer Warner asking Appellee to perform standardized field sobriety testing. Thus, we presume that up to the point that Officer Warner requested Appellee to perform field sobriety testing, “no intrusion upon constitutionally protected rights had occurred.” See Terry, 392 U.S. at 20 n.16, 88 S. Ct. at 1879 n.16 (holding that because the record was unclear “whether any … ‘seizure’ took place” before an officer initiated physical contact to conduct a search, the court assumed no violation of any constitutionally protected rights).

[How can a court put the burden on the defendant to show that a warrantless arrest is invalid when Fourth Amendment puts the burden on the government? Bumper v. North Carolina, 391 U.S. 543, 548 (1968). This court seems to conflate the burden of going forward and the burden of proof. The burden of going forward is satisfied by one sentence in a motion to suppress: “The defendant was subjected to a warrantless search (or arrest).”]

The question for probable cause is a fair probability that evidence would be found, and the affidavit in this unlawful export case established a fair probability evidence would be found in defendant’s offices. United States v. Piquet, 372 Fed. Appx. 42 (11th Cir. 2010) (unpublished).*

Defendant’s dropping a cup when talking to LEO was an abandonment because he had not been stopped at that point. United States v. Elbert, 2010 U.S. Dist. LEXIS 32943 (E.D. N.C. February 25, 2010).*

Defendant was found to have consented, and he did not show that he was under the influence of heroin and Xanax to make the consent invalid. United States v. Figueroa, 2009 U.S. Dist. LEXIS 126476 (S.D. Fla. December 22, 2009) (USMJ R&R), adopted United States v. Figueroa, 2010 U.S. Dist. LEXIS 33099 (S.D. Fla. April 5, 2010) (no reason shown for USDJ to reject USMJ’s credibility determination).*

Defendant was seen under a “No Trespassing” sign behind a business engaging in hand-to-hand drug sales. The officer had probable cause to arrest for trespassing and then engage in a search incident. Joyce v. Commonwealth, 56 Va. App. 646, 696 S.E.2d 237 (2010)*:

In this case, we need not address whether the officer had reasonable grounds to believe Joyce was armed and dangerous for purposes of a Terry frisk if — as the trial court found — the officer had probable cause to arrest Joyce for trespassing prior to his search. “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001). The power to arrest is invariably coupled with the power to search incident to arrest. Moore, 553 U.S. at 178. We thus turn to the question whether the officer had probable cause to arrest Joyce for trespassing.

As the United States Supreme Court has recently emphasized, the “very phrase ‘probable cause’ confirms that the Fourth Amendment does not demand all possible precision.” Herring v. United States, 129 S. Ct. 695, 699, 172 L. Ed. 2d 496 (2009). We thus employ a “common sense approach” not a “hypertechnical, rigid, and legalistic analysis” when reviewing probable cause determinations. … The standard is not calibrated to “deal with hard certainties, but with probabilities.” … Nor does it “demand any showing that such a belief be correct or more likely true than false.” ….

The CI told the police that “Bobby” would be bringing drugs to a certain place. Bobby’s actions corroborated the CI. Smith v. Commonwealth, 56 Va. App. 592, 696 S.E.2d 211 (2010)*:

But a vengeful neighbor who meant to harass or annoy the appellant by making false or unfounded allegations could not possibly control the way “Bobby” would react to the arrival of the police. Under these circumstances, the male’s reaction was more than extremely suspicious. Indeed, when viewed in the light most favorable to the Commonwealth, we hold that the officer’s observations through the appellant’s open door after receiving the anonymous tip amounted to probable cause that a drug offense was being committed.

The officer’s inability to cite the specific statute that the defendant violated in his driving did not make the stop unconstitutional. He was weaving in his lane, and there was reasonable suspicion of driving under the influence. State v. Hunt, 2010 Tenn. Crim. App. LEXIS 652 (July 30, 2010).*

While the individual factors of reasonable suspicion might have been innocent, collectively they were not, so the continuation of the stop was valid. Frazier v. State, 2010 WY 107, 236 P.3d 295 (2010).*

Despite there being probable cause to believe that defendant’s vehicle had drugs in it, he was stopped for a defective taillight, he was out of the car, and there was no exigency for a search under the Washington Constitution. There was time to get a telephonic warrant under state law because the officer had a cell phone. State v. Tibbles, 169 Wn. 2d 364, 236 P.3d 885 (2010):

¶11 On the stipulated facts in this case, the State has not shown any need for particular haste. The suspect was not fleeing, nor has there been any showing that he presented a risk of flight. While there was probable cause that evidence of contraband existed in the vehicle, Tibbles was outside the vehicle when Trooper Larsen searched it and the State has not established that the destruction of evidence was imminent. Additionally, the State has not established that obtaining a warrant was otherwise impracticable. For example, we do not know whether Larsen could have used a cell phone or radio to procure a telephonic warrant or whether he could have called backup to secure the scene while Larsen went to procure a warrant. The record contains no evidence of what Larsen would have had to do to procure a warrant at the time of the search.

¶12 With regard to safety concerns, the stipulated facts do not establish that Trooper Larsen felt he or anyone else was in danger as a result of Tibbles’s actions. CP at 44. Tibbles was not stopped on suspicion of impaired driving, but rather for a defective taillight. Id. Tibbles was alone, was compliant with the trooper’s requests, and moreover, was released rather than arrested and allowed to drive away even after Trooper Larsen searched the car and seized the marijuana and drug paraphernalia. Id.

Note: Complain all you want about telephonic warrants–they undermine a government claim of exigency.

Hand-to-hand probable drug sales in an open air drug market. The officer had reasonable suspicion to approach the defendant to ask questions. When approached, he tossed what proved to be heroin. Because he had walked back and forth to a car before this, this gave the officer probable cause to search the car for drugs. United States v. Johnson, 599 F.3d 339 (4th Cir. 2010).*

The officer pulled up next to a car parked too far from the curb, and the driver and occupants seemed startled when they saw the police. Defendant made furtive movements and acted like he was putting something in his waistband. This was in a high crime area known for shootings. The officer had reasonable suspicion to believe the defendant was concealing a weapon, so the stop of the defendant was reasonable. United States v. McDaniel, 371 Fed. Appx. 617, 2010 FED App. 0207N (6th Cir. 2010) (unpublished).*

The CI that was used here had been used twice for controlled buys just before the search warrant was issued. He was reliable in the past because “Although this refers to the recent past, it is still the past.” While the affidavit may have been deficient on probable cause, it was still close enough for the good faith exception to apply. United States v. Pirtle, 371 Fed. Appx. 614, 2010 FED App. 0206N (6th Cir. 2010) (unpublished).*

Search of defendant’s car was justified as an automobile exception search because he did not prove there was no probable cause. “The undersigned recommends that Defendant’s Motion to Supress be DENIED because Defendant has failed to show that there was not probable cause for the warrantless search of defendant’s vehicle.” [The defendant does not have the burden of proof to show a warrantless search was illegal.] United States v. Williams, 2009 U.S. Dist. LEXIS 126054 (W.D. W.Va. June 23, 2009) (USMJ R&R).

While the search of defendant’s car was unreasonable under Gant, the district court also found that defendant consented to a search of the car, and that was not clearly erroneous. United States v. Alvarez, 371 Fed. Appx. 756 (9th Cir. 2010) (unpublished).*

Strange travel plans, excessive air freshener with the overpowering smell of detergent, and excessive nervousness was reasonable suspicion during a traffic stop. United States v. Legge, 2010 U.S. Dist. LEXIS 23952 (D. Utah March 15, 2010).*

By permitting a parolee/probationer to ride in his car, the defendant did not reduce his expectation of privacy such that his car could be searched under the parole-probation search exception. To reduce a citizen’s expectation of privacy for associating with parolee or probationers would ultimately be harmful to society. People v. Schmitz, 187 Cal. App. 4th 722 (4th Dist. 2010):

In this case, there was no evidence that Schmitz, merely by allowing a parolee to ride as a passenger in his car, ceded to that parolee any authority over the car at all, let alone the authority to permit inspections of the vehicle’s interior “in his own right.” Indeed, there was no evidence Schmitz knew his passenger was a parolee. Had Schmitz left the vehicle in the parolee’s possession, or allowed him to drive it, that would be different. (See People v. Ledesma (2006) 39 Cal.4th 641, 703 [47 Cal. Rptr. 3d 326, 140 P.3d 657] [“Cases from a number of jurisdictions have recognized that a guest who has the run of the house in the occupant’s absence has the apparent authority to give consent to enter an area where a visitor normally would be received.” (Italics added.)]; United States v. Morales (1988) 861 F.2d 396, 399 [“Under the Matlock test, a driver of a vehicle has the authority to consent to a search of that vehicle. As the driver, he is the person having immediate possession of and control over the vehicle.”].) But Schmitz did neither. Instead, he simply allowed the parolee to visit the car temporarily as a passenger. Under those circumstances, the passenger/parolee himself would have had gained no expectation of privacy in the vehicle—and thus had no basis himself to either consent or object to its search (Rakas v. Illinois (1978) 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 [holding that mere passengers, who claimed neither a possessory nor any property interest in the vehicle searched, or in the items seized from it, could not object to the search or seizure])—while Schmitz gave up none of his own expectation of privacy, nor of his authority to prevent the officer’s search of the vehicle.

Schmitz clearly had a reasonable expectation of privacy in his glove box, his console, his door pockets, his own seat, the back seat—indeed every part of his car except the front passenger seat where the parolee was sitting. The parolee, by contrast, had no expectation of privacy anywhere in the car and no standing to contest his own search. Nothing Schmitz did could reasonably have been viewed as ceding authority over his back seat to the parolee. The parolee had no right to open packages, eat food, or even read magazines he found in the back seat. He could only obtain authority over the chip bag at issue here by claiming ownership, which—given his lack of search and seizure rights—would have been bootless.

Defendant’s continued stop lacked any reasonable suspicion, and the search was suppressed. Nervousness alone is not enough. King v. State, 193 Md. App. 582, 998 A.2d 397 (2010)*:

Lacking here, however, is any reasonable articulable suspicion that the occupants of the car were engaged in any criminal activity. Thus, the seizure was not reasonable. After conducting illuminated visual sweeps of the vehicle by search light and flashlight, Officer Chindblom observed no indication of criminal activity. Conversations with the four occupants revealed nothing constituting articulable suspicion of criminal activity. Neither McBride’s nor King’s perspiration or nervous appearance, alone, was enough to suggest criminal wrongdoing. [citation omitted] The officer did not smell any odor of illicit drugs. He did not observe any drug paraphernalia or, prior to the seizures of the sedan’s occupants, any weapons. A license check did not return anything unusual. Continued questioning merely produced multiple assertions that the occupants were not engaged in illegal activity.

This police-citizen interaction morphed from a legal encounter that was properly concluded into a second “stop” that was not justified by reasonable articulable suspicion. The Fourth Amendment violation occurred prior to McBride’s exiting the vehicle and the discovery of the gun. The State does not argue that the later voluntary consent to a search of the car cured the prior violation. The suppression motion was improperly denied.

Applying Rochin’s shocking the conscience test, the arrest of the plaintiff wasn’t. Fourth Amendment reasonableness discussed but not applied on these facts. Smith v. Bortner, 193 Md. App. 534, 998 A.2d 369 (2010).*

Defendant was riding an interstate bus which stopped at the MSP airport, and officers boarded the bus to talk to passengers. Defendant talked with the officers and refused to consent to a search of his bag. The officer asked: “May I see your driver’s license or your ID?” This was a request in a friendly tone and not a command, and a reasonable person would have felt free to not provide it. United States v. Richards, 611 F.3d 966 (8th Cir. 2010):

This was not a case of multiple officers coercing a bus passenger into submission by assailing him with multiple requests for the same thing until he complied. Nor was it a case in which police crafted an environment so coercive that Richards’ will was overborne and he had no choice but to produce his identification. Richards was free to decline to present identification at the time that he was asked for it, regardless of Askerooth’s hindsight reflection that, in light of his suspicious behavior, she would have likely detained Richards had he refused to cooperate. We conclude that, when viewed in the light of the totality of the circumstances, a reasonable person would have felt at liberty to decline Askerooth’s request for identification, and thus it did not constitute a seizure for the purposes of the Fourth Amendment.

[I don’t agree that any person feels free to refuse a request for ID when multiple police officers are on an interstate bus asking questions.]

An experienced criminal was not found to have been overborne for consent. United States v. Golinveaux, 611 F.3d 956 (8th Cir. 2010) (unpublished):

Under the circumstances of this case, we conclude Golinveaux’s consent to the search of her car was voluntary. At most, Golinveaux was in police custody for thirty-eight minutes before she gave consent to search, and was subject to the possible physical intimidation described above and Captain Berte’s “dangerous chemical speech” for less than twenty-three minutes. We do not believe, in such a short time, an experienced criminal such as Golinveaux–particularly given her history of assaulting law enforcement officers–was so overcome by police authority or by Captain Berte’s persuasive powers as to make her consent involuntary. Golinveaux’s motion to suppress was properly denied.

In regard to the California cell phone search incident case (posted here) see PCWorld’s Search Ruling Makes Smartphone Security More Crucial by Keir Thomas:

From a civil liberties view, the issue whether a warrantless search of a personal electronic device is justified bearing in mind the Fourth Amendment.

However, from the standpoint of an IT professional it’s merely a reminder that businesses need to both create and enforce policies regarding data storage on personal electronic devices. With the ability to work highly effectively from modern smartphones and tablets–something users of primitive handsets couldn’t do just a few years ago–mobile data security has become a critical issue that can no longer be ignored.

Employees need to be aware that just because data is contained in electronic form on their phone, it is no less confidential and should be treated no less carefully than that on paper. Ideally, this should be written into employment contracts.

From a user’s point of view, there’s an easy solution to the problem if confidential data appears in text messages: Delete them after reading (and empty the trash folder, if necessary). Alas, we’re not used to doing this and mobile phones don’t encourage us to do so, making the procedure clumsy.

From a business perspective, to protect against data leaking out via SMS, it might be simpler to deactivate text messaging if the company is paying for the phone service. This is possible with many carriers. Additionally, some cell phone product lines such as BlackBerry allow the text messaging functionality to be deactivated (look under the Firewall settings).

Because a cell phone can be remotely locked [we all know that an iPhone4 can be remotely wiped clean], a search incident of this cell phone was proper. Even so, the defendant consented to the officer looking at the phone to retrieve a number for him, and the officer kept looking. [Really a good plain view?] United States v. Rodriguez-Gomez, 2010 U.S. Dist. LEXIS 138369 (N.D. Ga. November 15, 2010):

There is no Eleventh Circuit authority directly on point. The holding in Park is the minority position among cases that have considered whether cell phones may be searched incident to a lawful arrest but without a search warrant. The majority of cases, however, “trend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones.” United States v. Wurie, 612 F. Supp. 2d 104, 109-10 & n.9 (D. Mass. 2009)(collecting cases); see also United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (agreeing with the Fifth Circuit that “if a cell phone is lawfully seized, officers may also search any data electronically stored in the device.”). I will follow the majority of cases (and, in my opinion, the more persuasive authority) which hold that a warrantless search of a cellular telephone is properly executed as a search incident to arrest. See United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007)(noting that “[t]he permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person,” and declining to suppress text messages and call records obtained during a warrantless search of a cell phone incident to a lawful arrest); United States v. Young, 278 F. App’x 242, 245 (4th Cir. 2008)(upholding the accessing and copying of text messages from a phone during a search incident to an arrest “based upon … the manifest need of the officers to preserve evidence….”); United States v. Zamora, No. 1:05 CR 250 WSD, 2006 WL 418390, at *4 (N.D. Ga. Feb. 21, 2006) (concluding that the “legitimate concerns” of losing the data from the cell phones created “exigent circumstances [which] authorized the seizure of the cell phones and the search of their electronic contents.”).

Here, Officer Manning’s testimony provided a sufficient basis for this court to conclude that there was a risk that the phone could be remotely locked, or that the data on the phone could be remotely deleted, thus implicating the need to preserve evidence. Cf. United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22, 2008)(suppressing cell phone evidence in part because government failed to establish that text messages at issue would have been destroyed absent agent’s intervention). Also, the search of Defendant’s cell phone was sufficiently contemporaneous to Defendant’s arrest to be considered incident to his arrest. See Finley, 477 F.3d at 260 n.7 (finding that although police had moved the defendant, the search was “still substantially contemporaneous with his arrest and … therefore permissible”). Officer Manning searched the cell phone at his earliest reasonable opportunity after arresting Defendant and taking him to the jail.

If remote locking of a cell phone is the issue, shouldn’t the government have to prove that it is possible? Just because an iPhone4 can doesn’t mean others can. The government bears the burden of proof on warrantless searches, so it should bear the burden here. If one accepts the premise that there was real exigency, then the search incident theory is a little stronger. But, it is still a computer, not just a phone. The cop here was looking at pictures when he was asked to look for a phone number.

Defendant discarded a styrofoam cup on which his DNA was found. This was an abandonment. United States v. Green, 2010 U.S. Dist. LEXIS 138284 (W.D. Mo. December 14, 2010).*

The consent search here was granted by a third party with apparent authority. United States v. Parker, 2010 U.S. Dist. LEXIS 138190 (D. Minn. December 10, 2010).*

Defendant consented to the search of his apartment. “Defendant signed a consent to search form that expressly informed him that he had a right to refuse consent. Moreover, the facts leading up to the giving of consent clearly establish that Defendant’s will to resist a search was not overborne by the police.” United States v. Wallace, 2010 U.S. Dist. LEXIS 138443 (D. Minn. December 1, 2010).*

Officers were arresting defendant standing next to his wife’s car (in which he had standing) in the yard when a gun was seen in plain view. It was lawfully seized. United States v. Barrow, 2010 U.S. Dist. LEXIS 138373 (S.D. Fla. November 16, 2010).*

2255 petitioner’s contention that the original affidavit for search warrant did not exist was belied by the evidence in the case, and his attorney was not ineffective for not challenging it. Quang Van Nguyen v. United States, 2010 U.S. Dist. LEXIS 138470 (S.D. Ala. October 22, 2010).*

Orin Kerr on Volokh Conspiracy: Strange Things Happening With the Exclusionary Rule: The Introduction of Case-by-Case Balancing After Herring v. United States. Posted December 30, 2010.