The search warrant here was for evidence that defendant was unlawfully seeking refugee status in the U.S. but was a combatant in the Bosnian war. “[A]n agent’s opinion and experience combined with circumstantial evidence has been found to provide probable cause to search a residence. See United States v. Jenkins, 901 F.2d 1075, 1081 (11th Cir. 1990) … [¶] Additionally, several similar search warrants issued in investigations of Bosnian ex-military immigrants show that courts have found a spectrum of direct and opinion evidence sufficient to establish probable cause.” United States v. Zekic, 2010 U.S. Dist. LEXIS 126619 (N.D. Ga. October 28, 2010).*

The affidavit for the two search warrants showed probable cause for the place to be searched, and, even if it didn’t, the good faith exception would apply. United States v. Washington, 2010 U.S. Dist. LEXIS 126574 (E.D. Mich. December 1, 2010).*

While defendant was handcuffed and in custody, which alone is not enough under Watson to show a lack of voluntariness, he was otherwise cooperative and consented. United States v. Solorzano, 2010 U.S. Dist. LEXIS 126663 (E.D. La. December 1, 2010).*

For probable cause in a child pornography search warrant, the officers do not have to show that defendant actually downloaded it or that the people in the images were actually under 18. The affidavit could have better recited that the officer knew child porn when he saw it based on his experience, but this was not fatal to the warrant. United States v. Lyon, 2010 U.S. Dist. LEXIS 126753 (E.D. Tenn. November 15, 2010).*

A search warrant for information about an e-mail account does not require notice to the account holder, just the provider. Application for Warrant for E-mail Account [Redacted]@gmail.com, No. 10-291-M-01 (November 1, 2010):

In the absence of textual or legislative guidance, this Court concludes that all of Rule 41’s procedural provisions apply to Section 2703(b)(1)(A), including Rule 41(f)(1)(C). As described below, however, 41(f)(1)(C) is satisfied by leaving a copy of the warrant with a third-party ISP.

Magistrate Judge Facciola’s Memorandum Order refers to “the notice thus required by Rule 41.” Mem. Order at 7. As the government notes, however, the relevant portion of Rule 41 does not include the word “notice.” Rather, Rule 41(f)(1)(C) requires that:

The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property. Rule 41 thus allows an officer to give a copy of the warrant and receipt to the person from whose premises the property is taken, even if that person does not own the property. There is no separate requirement that the property’s owner receive a copy of the warrant, a receipt, or any form of notice. Thus, the Eighth Circuit found that police complied with a state rule of criminal procedure virtually identical to Rule 41(f) when they left a copy of their warrant and a receipt at the Federal Express facility from which they had received the package. United States v. Zacher, 465 F.3d 336, 339 (8th Cir. 2006). The court held that it was therefore “immaterial” to notify the defendant of the seizure. Id.

Analogizing Zacher, the district court in In the Matter of the Application of the United States of America for a Search Warrant[, 665 F. Supp. 2d 1210 (D. Ore. 2009)] found that the government satisfied Rule 41(f)(1)(C) by serving ECPA warrant on the third-party ISPs.

See Blog of the Legal Times and PogoWasRight.org.

Government agents violated the search protocol by not timely searching the defendant’s computers, but the court does not find that the search should be suppressed as a result because there was no “but for” causation. United States v. Widner, 2010 U.S. Dist. LEXIS 125920 (W.D. N.Y. August 20, 2010), adopted 2010 U.S. Dist. LEXIS 125942 (W.D. N.Y. November 30, 2010):

Applying the above-referenced authority to the Widner warrant, I find that the failure to conduct an onsite preview of the material seized did not render the warrant itself insufficiently particular or otherwise invalid. The defense contends that “blanket suppression” of all the evidence is nonetheless justified because the warrant was executed in “flagrant disregard” of the warrant’s terms. See United States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988) (“when items outside the scope of a valid warrant are seized, the normal remedy is suppression and return of those items[, …] the drastic remedy of the suppression of all evidence is not justified unless those executing the warrant acted in flagrant disregard of the warrant’s terms”) (internal quotation omitted; emphasis in original); United States v. Defreitas, 701 F. Supp. 2d 297, 2010 WL 1223244, *4 (E.D.N.Y. 2010). Government agents act in flagrant disregard of a warrant justifying “wholesale suppression … only when (1) they effect a widespread seizure of items that were not within the scope of the warrant, and (2) do not act in good faith.” United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir. 2000) (internal citations and quotations omitted), cert. denied, 534 U.S. 816, 122 S. Ct. 44, 151 L. Ed. 2d 16 (2001). The first prong of this test requires proof that the search conducted actually resembled a “general search,” which has been described as a “wide-ranging exploratory search []” or an “indiscriminate rummaging,” and “ha[s] long been deemed to violate fundamental rights.” Id. at 140. In the absence of such evidence, the Court need not address whether the agents acted in bad faith in executing the search. Id. at 142 (declining to reach issue of whether search was conducted in good faith where first prong of test was not met).

. . .

The one final question is whether the search team’s non-compliance with a court-ordered directive in the warrant itself justifies suppression as a sanction. In my opinion, the Supreme Court’s decision in Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006), counsels against that result. There, the agents executing a search warrant failed to comply with the Fourth Amendment’s “knock and announce” provision. The Court refused to order suppression, noting that it is a “last resort, not our first impulse” because of its “substantial social costs.” Hudson v. Michigan, 547 U.S. at 591. The Court reasoned that suppression was too drastic a remedy because the agents would have discovered the incriminating evidence “[w]hether the preliminary misstep had occurred or not.” Id. at 592 (emphasis in original). Accord …. The record here makes clear that the agents would have discovered the child pornography whether the forensic preview had been conducted onsite, as directed, or offsite, as in fact occurred. Thus, the failure to conduct the forensic preview at the residence cannot be considered the “but-for cause of obtaining the evidence,” making suppression an inappropriate sanction. Hudson, 547 U.S. at 592 (“but-for causality is … a necessary … condition of suppression”); Acosta, 502 F.3d at 58.

The Virginia AG issues an opinion authorizing school officials to search student belongings and cellphones on reasonable suspicion of a violation of law or a school regulation for “sexting” or “cyberbullying.” VA A.G. Op. 10-150 (November 24, 2010)*:

Accordingly, searches of a student’s belongings–including an examination of the messages found on a cell phone or laptop–are justified if, when the search is made, the teacher or principal has “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” In addition, the subsequent search must be “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

12 Id. at 342. See also In the Interest of Jane Doe, 887 P.2d 645 (Haw. 1994) (applying the T.L.O. framework and upholding search of a student’s purse).
13 Id; see also Safford Unified Sch. Dist. #1 v. Redding, 129 S. Ct. 2633, 2643 (2009) (finding a strip-search of student by school officials unreasonable and stating that T.L.O.’s mandate that school searches be reasonable in scope requires a specific suspicion that a student is hiding evidence of wrongdoing in his or her underwear “before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts”).

The video of the stop showed that defendant understood English fluently. His consent to search was without limitation, and that meant that the officer could remove panels of the trailer his truck was pulling. United States v. Saucedo, 2010 U.S. Dist. LEXIS 123945 (C.D. Ill. November 3, 2010), adopted United States v. Saucedo, 2010 U.S. Dist. LEXIS 123898 (C.D. Ill. November 22, 2010).*

When a probationer lives with a non-probationer, some cases say that there has to be reasonable suspicion to differentiate the belongings of the two. Here, a backpack belonging to the defendant was with the probationer’s stuff, but the officers had reasonable suspicion as to it. “Officer Silvester needed more than a ‘hunch’ that the backpack was controlled by Black but less than probable cause that it belonged to her. The totality of the circumstances show that Officer Silvester had a reasonable suspicion that the backpack was controlled by Black or jointly controlled by Black and Bolivar.” United States v. Bolivar, 2010 U.S. Dist. LEXIS 123782 (D. Idaho November 20, 2010).*

For safety reasons, defendant’s mother was told to stay in the living room while a protective sweep was done of her house for defendant. This did not mean she was detained for consent to search the house, which the court found. She had apparent authority over the whole house; even his bedroom. United States v. Stovall, 2010 U.S. Dist. LEXIS 124061 (E.D. Ark. November 8, 2010).*

In a forfeiture action, a separate motion to suppress the evidence has to be filed. If it is just in the answer, it may not be dealt with. United States v. $40,000 in United States Currency, 2010 U.S. Dist. LEXIS 123807 (W.D. N.C. November 3, 2010).*

Defendant was arrested with probable cause and jailed. During the strip search, jailers saw string protruding from his rectum. They sought consent to remove it, which he refused. A forced digital rectal exam (“DRE”) didn’t work because defendant’s tight muscles did not permit entry. He was taken to a hospital for an examination and given drugs to make his sphincter relax. When that did not work, he was given a drug to paralyze him for 30 minutes. “Balancing these three factors [from Winston v. Lee], the Court finds that the DRE was a reasonable procedure under the circumstances and was reasonably employed, particularly given the risk to the Defendant from the drugs in his rectum for which there was a clear indication were there [Schmerber v. California] and the Defendant’s actions hindering their removal. Accordingly, the Court finds that the search in question did not violate the Defendant’s Fourth Amendment rights.” He had 10.2g of crack in him. United States v. Booker, 2010 U.S. Dist. LEXIS 124839 (E.D. Tenn. September 29, 2010), adopted United States v. Booker, 2010 U.S. Dist. LEXIS 124874 (E.D. Tenn. November 24, 2010):

After waiting “ten to fifteen minutes for the medicine to take full effect,” LaPaglia again attempted to perform a DRE. [Tr. 131]. This time, LaPaglia was able to feel a foreign object inside the Defendant’s rectum with the tip of his finger. [Tr. 131]. However, the Defendant was still non-cooperative, and LaPaglia was unable to complete the DRE and remove the foreign object. LaPaglia told the Defendant that his continued failure to cooperate required the administration of a combination of medications that would temporarily paralyze every muscle in his body. LaPaglia also told the Defendant that he would be rendered unconscious and intubated to allow for a complete DRE.

LaPaglia intravenously administered 20 milligrams of etomidate, a sedative, and 125 milligrams of succinylcholine, a paralytic agent, to the Defendant. [Tr. 142]; [Tr. 155 (Jones testified that intravenous therapy was established at 3:35 p.m.)]; [Exhibit 7]. At approximately 4:12 p.m., the Defendant was intubated. [Tr. 62, 156]; [Exhibit 7]. Once the Defendant was unconscious and completely paralyzed, LaPaglia performed a DRE and removed a rock of crack cocaine weighing 10.2 grams from the Defendant’s rectum. [Tr. 27]. Shortly after the rock was removed, Steakley placed it in an evidence bag and left the emergency room. [Tr. 27, 144-45]. The Defendant was intubated for approximately one hour total, during which time he was unconscious for 20 to 30 minutes and completely paralyzed for 7 to 8 minutes. [Tr. 143, 156]. At approximately 6:40 p.m., the Defendant’s intravenous therapy was discontinued. [Tr. 155]; [Exhibit 7]. The Defendant was subsequently discharged from the emergency room into Shelton’s custody. See [Tr. 125 (Shelton testified that he was told he could leave the hospital with the Defendant at 6:25 p.m., and that he arrived with the Defendant back at the Detention Facility at 6:59 p.m.); [Exhibit 7] (showing the Defendant’s departure time as 6:42 p.m.)].

The search was valid under Winston v. Lee because of the risk associated with any inmate in jail having drugs hidden in his body because of the potential for overdose.

In the event that the District Court finds that Dr. LaPaglia was acting at the officers’ direction and was, therefore, a government agent, the Court will briefly conduct an alternative analysis of whether the DRE was reasonable under the circumstances and was conducted in a reasonable manner. In Schmerber, the Court balanced three factors to determine whether the search was reasonable: “(1) ‘the extent to which the procedure may threaten the safety or health of the individual’; (2) ‘the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity’; and (3) ‘the community’s interest in fairly and accurately determining guilt or innocence.’” United States v. Husband, 312 F.3d 247, 253 (7th Cir. 2002) (quoting Winston v. Lee, 470 U.S. 753, 761-62 (1985) (analyzing the reasonableness of surgery to remove a bullet from the defendant’s chest under the Schmerber factors)).

Also, the doctor helpfully testified that he was acting on his own accord as a medical professional concerned about defendant overdosing, and not at the direction of the officers. The court also thus held that the doctor was a private actor.

Dr. LaPaglia further explained that he conducted a DRE of the Defendant because he was concerned that the Defendant was in danger—not because he intended to assist the police with their investigation. See [Tr. 148 (“The background information that I was given by the officers was that they suspected [the Defendant] had drugs in his rectum. That gave me suspicion enough to think that he was in danger.”)]; [Tr. 143 (stating that after the second attempt at performing a DRE, “I was very certain that [the Defendant] had an object [inside of him] and whether it’s a drug or an object, it needs to come out of the rectum.”)]. Based upon this testimony, the Court concludes that the DRE in this case was not a search within the scope of the Fourth Amendment’s protections because it was conducted by a private actor.

Search warrants do not have expiration dates. Defendant’s computer was seized within the time requirement of Rule 41, but it was not forensically searched for child pornography until after that. Plenty of authority says that the later forensic search under the original warrant is valid. There is nothing showing bad faith. United States v. Hodges, 2010 U.S. Dist. LEXIS 118437 (N.D. Ga. September 15, 2010):

Moreover, in this case, completion of the analysis of the hard drives after the expiration of the search warrant could not rise to the level of a constitutional violation and cannot be the basis for suppressing evidence seized because probable cause continues to exist, the government did not act in bad faith, and there was no prejudice to the Defendant. Probable cause did not dissipate during the nearly two-month delay in completing the off-site analysis of the hard drives. Because the computers were in possession of law enforcement, there was little chance that any incriminating evidence might be removed from the computers. Additionally, probable cause was actually enhanced by the delay because prior to the November 29, 2009 expiration of the search warrant, Special Agent Richardson began looking at the hard drives and found hundreds of images which contained erotica of young boys and child pornography. (Tr. 14). Furthermore, Special Agent Richardson did not act in bad faith in order to avoid any requirements imposed by the search warrant. The nearly two month delay was not unreasonable given that Special Agent Richardson had to clone the hard drives, load the images into his forensic analysis program, ran out of disc space, competed with other agents for time to use the imaging machine, and had difficulty accessing the information on the hard drives due to Defendant’s encryption efforts. Finally, Defendant does not identify any prejudice resulting from the delay in completion of the forensic analysis. Therefore, Defendant’s Motion to Suppress Evidence Obtained Pursuant to Warrantless Search of Computer Storage Equipment should be DENIED.

A GPS device was placed on the subject vehicle in this case, and the government had probable cause at the time of placement to believe that the vehicle would be used to transport drugs because it had been used for that twice before. United States v. Haces-Delgado, 2010 U.S. Dist. LEXIS 118438 (N.D. Ga. September 15, 2010).*

Defendant’s claim that GPS tracking was a “search” in violation of the Fourth Amendment was not preserved by his general foundation argument. Under plain error review, the court cannot find that it was fundamental error since the law is in disarray. State v. Danney, 2010 Opinion No. 73, 2010 Ida. App. LEXIS 89 (November 5, 2010)*:

Danney’s claim of fundamental error does not satisfy this test, for the law is not settled on whether use of a GPS device to track a vehicle&s movements constitutes a “search” subject to the strictures of the Fourth Amendment. Neither the United States Supreme Court nor Idaho appellate courts have spoken to this issue, nor have the vast majority of the federal circuit courts. See People v. Weaver, 909 N.E.2d 1195, 1202 (N.Y. 2009) (noting that both the United States Supreme Court and most federal circuit courts had not yet ruled on the issue). To the extent that it has been addressed, the jurisprudence in this area is conflicting. The United States Supreme Court’s decision that is closest on point is United States v. Knotts, 460 U.S. 276 (1983), where the Court examined the constitutionality of the warrantless use of a “beeper” device planted on a vehicle and used to track the progress of the vehicle by officers following the beeper’s signals. The Court concluded that law enforcement officers did not conduct a “search” cognizable under the Fourth Amendment by using the beeper to track a vehicle because “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281. This was so, the Court said, because the particular route taken, stops made, and ultimate destination are apparent to any member of the public who happens to observe the vehicle’s movements, and “[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” Id. at 282. At least two federal circuit courts have held that the Knotts analysis applies equally to the more technologically advanced GPS devices now used by law enforcement, concluding that the warrantless placement of a GPS tracking device on a vehicle does not implicate the Fourth Amendment. United States v. Pineda-Moreno, 591 F.3d 1212, 1216 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007). See also Osburn v. State, 44 P.3d 523, 525-26 (Nev. 2002) (holding that the police use of an electronic mobile tracking device does not infringe a reasonable expectation of privacy). Of course, if Knotts, Pineda-Moreno, and Garcia control on this issue, then Danney has not only failed to show fundamental error, he has failed to show any error at all, for the officers’ employment of a GPS device to track Danney’s vehicle would not be deemed violative of the Fourth Amendment.

Danney points, however, to decisions of several state supreme courts that have held the use of a GPS tracking device without a warrant was impermissible under their respective state constitutions. See Commonwealth v. Connolly, 913 N.E.2d 356, 369 (Mass. 2009); Weaver, 909 N.E.2d at 1202; State v. Campbell, 759 P.2d 1040, 1041 (Or. 1988). Danney urges that we adopt the analysis of the Weaver court which, although deciding the issue according to state law, also strongly suggested that Knotts should be inapplicable to GPS technology. The Weaver court observed that while “[a]t first blush it would appear that Knotts does not bode well for Mr. Weaver, for in his case, as in Knotts, the surveillance technology was utilized for the purpose of tracking the progress of a vehicle over what may be safely supposed to have been predominately public roads and, as in Knotts, these movements were at least in theory exposed to anyone who wanted to look,” this was where the similarity ended. Weaver, 909 N.E.2d at 1198-99 (quoting Knotts, 460 U.S. at 281). The court focused on the disparity in the technology, noting that the device used in Knotts was a “very primitive tracking device” which was “fairly described … as having functioned merely as an enhancing adjunct to the surveilling officers’ senses …,” while “GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability.” Weaver, 909 N.E.2d at 1199. …

While the Weaver opinion presents an analysis by which the Knotts decision could be deemed inapplicable to the use of GPS tracking devices, it hardly demonstrates that there is settled law holding the warrantless use of such devices to constitute a search governed by Fourth Amendment standards. It is evident that the constitutionality of warrantless use of GPS technology to track vehicle movements is not “obvious” such that the admission of this evidence was plainly error. Accordingly, this issue is not one of fundamental error under the Perry standard that we can consider for the first time on appeal, and for that reason we do not reach the merits.

The way I keep up with news about the Fourth Amendment is I have a stored Google-search that sends me stuff. I get things from newspapers, blogs, and websites, from the left and the right, sometimes extreme. I scan it all, but seldom post anything unless it has value (at least in my judgment) to the readers of this site.

This site went online in February 2003. Since then, without a doubt, the one topic of greatest interest with more Internet activity than anything else is the TSA’s desire to grope and frisk every airline passenger in America in the name of Homeland Security. This is just in the last three weeks or so, likely because it hits home to all those who fly, and I do at least one round trip every two weeks. I have encountered two full body scans: CLE two years ago and DCA this fall.

The outrage of everybody seems to be rising over this issue.

What little outrage there was over the USA PATRIOT Act was spread out over years, and it took years for people to realize that Congress had sold out their rights. Then came the GPS monitoring of movement of people, which has only stirred people up this year. Go back to this post from August about United States v. Pineda-Moreno, the Ninth Circuit’s GPS case: Media discovers August 27th that Pineda-Moreno was decided January 11th. This was a result of Chief Judge Kozinski’s biting dissent on denial of rehearing en banc issued in August that underscored the class distinctions underlying the Ninth Circuit’s rationale. Only then did the intrepid press discover what the court held seven months earlier.

One result of shrinking newspaper budgets is that most reporters don’t cover the news anymore. They seem to read the internet for stories to regurgitate. You have to go to the legal news to see what’s going on in the law. Plenty of us are doing it in our own ways because we are actually reading the cases and not just linking to news stories.

Maybe TSA’s recent actions will crystallize public opinion to again support the Fourth Amendment and notions of individual privacy. When it is a criminal involved, citizens are less likely to care. But, when you are forced to endure a frisk the same as being checked into a jail on a misdemeanor or suspected of having a weapon just to fly around the country ….

Sometimes I’m just stunned. What have we come to in this country? The terrorists have won, thanks to TSA’s mindset. Our liberties have been curtailed by actions of people outside the country that the government feels compelled to respond to. Like the boiling frog, our rights get a little narrower everyday, and few people are noticing it.

But, can you really blame today’s TSA? Didn’t the passage of the USA PATRIOT Act prove that Americans can be bullied about by the government in the name of Homeland Security?

Just follow Secretary Napolitano’s advice: Don’t want to be frisked? Well, drive instead of fly. How does that change our way of life? I can almost hear Mr. Rogers saying “Can you say ‘police state’?” We will never get over 9/11 because the government is going to be reminding us everyday in its actions.

Twenty-one years ago, Judge Kozinski wrote:

Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.

United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989). That quote has been on the sidebar here since this website started. Just search “Kozinski” on this website for his colorful dissents. Pineda-Moreno is here.

Update: A friend sent my Penn and Tenner’s Penn Julliette’s account of his grope-frisk at the Las Vagas airport. See also The Hill: GOP lawmaker: Full-body scanners violate Fourth Amendment by Elise Viebeck. WSJ blog: All-Seeing Airport Scanners Sparking Litigation and Protests, by Nathan Koppel. CNN Opinion: Body scanners, pat-downs violate law and privacy by Marc Rotenberg. There is just too much to post.

Officers had exigent circumstances to remove defendant from his home pending obtaining a search warrant. Officers received a call from the mother of two underage girls who were at defendant’s house with others in the swimming pool, when they discovered a video camera hidden in the bathroom with them visible on the LCD screen. They went right to his house to preserve the crime scene. After he was removed, a search warrant was obtained and the camera and other child pornography was found. The police did not create the exigency; the defendant’s knowledge that the girls discovered the camera was the exigency. State v. Enyart, 2010 Ohio 5623, 2010 Ohio App. LEXIS 4740 (10th Dist. November 18, 2010):

[*P26] Here, as in Jenkins and Chamber, two patrol officers knocked loudly on defendant’s doors and announced “police” before the detectives from the sexual assault squad arrived and interviewed the neighborhood girls. (Tr. 15-16, 140.) The officers, however, did not create the exigent circumstances with their knocking. Having been informed of what the girls related to their mother, the officers knew that, after the girls discovered the video camera, defendant went into the bathroom, shut the door, and inevitably would have realized the girls discovered the camera: someone was aware of his criminal behavior. The information the girls supplied, coupled with the readily destructible nature of the evidence, justified the officers’ entry.

[*P27] As a result, unlike Chamber or Jenkins, where police’s knocking created the exigency by alerting the defendant to the officers’ presence, here the girls’ discovery of the camera, with defendant’s knowledge they had done so, created the likelihood that defendant would try to destroy the recording. As Kaeppner explained, “[i]f the camera was on *** we’re talking about electronic data which is easily erased. It’s readily destructible.” (Tr. 125.) Cf. State v. Bowe (1988), 52 Ohio App.3d 112, 114 (concluding VCRs, cameras and radios were “not of a type easily destroyed, and the record [did] not reflect any indication that the police thought otherwise”); United States v. Bates (C.A.6, 1996), 84 F.3d 790, 796 (determining officers were unreasonable in thinking “fifteen kilograms of powder cocaine could be quickly disposed of by flushing it down the toilet or dumping it down the sink drain”).

Search warrant affidavit’s allegation that defendant ran a “large scale” drug trafficking operation is nexus to defendant’s home. United States v. Murrey, 2010 U.S. Dist. LEXIS 125121 (E.D. Mich. September 24, 2010):

Here, SA Brouillard’s affidavit in support of the search warrant for evidence of narcotics trafficking stated that, based on his training and experience, “[i]t is common for drug traffickers to conceal drug records, drug proceeds … within their residences.” This statement, coupled with SA Brouillard’s detailed allegations linking Murrey to a large-scale cocaine distribution operation and attempts to injure law enforcement on December 2, 2008, established a sufficient nexus for the search of his residence. See also United States v. Gunter, 551 F.3d 472 (6th Cir. 2009) (where the search warrant affidavit shows that the resident had made repeated purchases of one or more kilograms of cocaine, it was reasonable to infer there would be evidence of drug trafficking in his home). As such, Murrey’s motion to be suppress should also be denied for this reason.

This vehicle was unlicensed, and a policy to tow unlicensed vehicles is reasonable. The fact a pill bottle was not listed under the inventory does not make it invalid if it was listed as evidence seized. State v. Wotring, 2010 Ohio 5797, 2010 Ohio App. LEXIS 4881 (11th Dist. November 24, 2010).*

Posted today on the ABAJournal website: Airport Body Scanners May Violate Alito’s ‘Minimally Intrusive’ Test linking to a piece in the Washington Post. As a Third Circuit Judge, Justice Alito looked at the issue of body scanners.

Justice Samuel A. Alito Jr. evaluated airport screening procedures when he was a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, according to George Washington University law professor Jeffrey Rosen. In an opinion column in the Washington Post, Rosen asserts that the full body scanners now being used at airports would fail Alito’s Fourth Amendment test, set out in a 2006 opinion.

Alito upheld searches using magnetometers and hand-held wands, saying the screening was “minimally intrusive” and “effective.” But Rosen doesn’t think that test would be satisfied by the methods being used now. …

The City of Chicago’s forfeiture processes violate due process. The rules are arcane, obscure, and hard to find, and people who actually try to follow them are essentially thwarted by the CPD’s rules and failure to tell people how to do anything. Also, the City sends forfeiture notices to the residences of people in jail, and refuses to check the jail records to see if any of the notices returned involved people in jail. Gates v. City of Chicago, 623 F.3d 389 (7th Cir. 2010)*:

The plaintiffs claim that forty percent of Pollard notices mailed are returned to the police department undelivered. The City does not wish to bear the expense of the additional search of the Sheriff’s website and a possible second mailing because the amounts at issue are so small. But the City expects claimants to repeatedly return to the police station for instructions and for the elusive hunt for the arresting officer’s signature on the Form 54, in order to reclaim those same small amounts. And the Pollard letter is not simply notice but also the means by which arrestees may reclaim their money. The predictable result is that millions of dollars remain unclaimed in the City’s coffers each year. We cannot conclude on this record that arrestees are willingly abandoning millions of dollars; it is just as likely that they do not claim their money because they do not know how or because they have not received a Pollard notice or because the City has made the process obtuse and unreasonably difficult. It is more likely that arrestees do not know how to retrieve their money because the City’s notice is misleading and, in a certain class of cases, is not reasonably calculated to reach its target. The district court was premature in holding that the inventory receipt Notice was adequate, and in finding that no more than the initial Pollard mailing to the address listed on the inventory receipt was required for narcotics arrestees. The court should also have considered the City’s knowledge that a predictable number of arrestees would not be home, and should have weighed the practicability of checking the Sheriff’s website and making a second mailing.

Game wardens approached a boat on Lake Lewisville TX to conduct a safety check because it had improper lighting. They smelled and observed smoking of marijuana on the boat, and they conducted a search of the boat’s glove compartment and defendant’s wallet for marijuana. The search of the wallet was valid because it was a place where marijuana could be hidden for purposes of the automobile exception, which applies to boats on water. Dahlem v. State, 322 S.W.3d 685 (Tex. App. — Ft. Worth 2010).

A truant officer saw a car parked in a handicapped spot without a placard or proper plate and the windows were fogged up. He parked behind the car and talked to the occupants, who were stoned. The driver had been “tweaking.” He asked for their names and ran them. An outstanding warrant came back. The stop was with reasonable suspicion. State v. Johnson, 156 Wn. App. 82, 231 P.3d 225 (2010).*

The search warrant, that this judge signed in the first place, adequately shows probable cause under Gates. United States v. Williams, 2010 U.S. Dist. LEXIS 46283 (E.D. Wis. January 27, 2010).*

The state could not show that the defendant’s stop under the community caretaking doctrine was valid. The trial court’s finding is reversed. Travis v. State, 322 S.W.3d 747 (Tex. App.––Texarkana 2010):

Since “the purpose of the community caretaking exception is to allow an officer to “seize” and assist an individual whom he reasonably believes is in need of help, the first factor is entitled to the greatest weight.” Id. In this case, this factor undeniably weighs against admission since Poole testified Travis did not appear to be in distress. See id. at 277-78. Although there is record evidence that Travis was driving on a county road suggesting isolation, he may have been close to an intersection. It is the State’s burden to demonstrate the reasonableness of the stop. State v. Dixon, 151 S.W.3d 271, 273 (Tex. App.–Texarkana 2004), aff’d, 206 S.W.3d 587 (Tex. Crim. App. 2006). We find this factor to be neutral. See Corbin, 85 S.W.3d at 278. Poole testified Travis was alone, indicating that he did not have access to assistance. However, because Travis was not distressed, there is not much weight to this factor. In regard to the fourth factor, Poole testified he had no reason to believe Travis was a danger to himself or others. Nevertheless, Poole stopped Travis “to check his current state, his welfare, to make sure he is okay.” While the trial court was free to consider Poole’s subjective concern, we find Poole’s belief that Travis required aid objectively unreasonable. Therefore, the narrow community caretaker exception did not justify Poole’s stop. Thus, Travis’ Fourth Amendment rights were violated.

The government showed that the search of defendant’s room was with consent, so his fruit of the poisonous tree argument fails with it. United States v. Quintero, 2010 U.S. Dist. LEXIS 79350 (D. Ariz. July 12, 2010).*

It would seem this week that courts decided more search and seizure cases than any one week I remember. And this week had only three days. It took seven hours today to get caught up, and the cases are already on the website but spread out through Monday. Surprisingly, Lexis sent many cases yesterday and today, but I assume there may be none received Sunday and Monday because of the long weekend.

The page setup of this website would make too many go over to a second page and out of sight, so they are posted for Sunday and Monday. They will appear between 12 and 1 am Eastern Time.

And, there are some really interesting cases already in there involving abandoned DNA (not a search), DUI being exigency for an entry into the home, and medically paralyzing a suspect to conduct a digital rectal examination. If you need one of these now, let me know.

The person who answers the door and says that the person the police is looking for is not there is showing familiarity with the residence, and here it was enough to show apparent authority to let the police in to look for the person. United States v. Tyvarus, 2010 U.S. Dist. LEXIS 123814 (D. Minn. November 22, 2010)*:

Without asking for permission or consulting anyone else in the residence, the woman agreed to allow the officers to search for Waldrop. The woman exercised the prerogative to admit strangers into the residence without giving the officers any reason to doubt her authority to invite them into the residence. On this record, the Court adopts the magistrate judge’s finding that “the woman acted with authority and familiarity at the door such that it was reasonable for the officers to rely on her authority to consent.” …

The description given of the bank robbery was sufficiently specific that it supported defendant’s stop because he matched that description. Defendant’s cases are distinguished because they involved more vague descriptions than this one. United States v. Washington, 2010 U.S. Dist. LEXIS 124674 (D. Minn. November 24, 2010), adopting United States v. Washington, 2010 U.S. Dist. LEXIS 124807 (D. Minn. August 24, 2010).*

A sensor placed by the Border Patrol picked up two vehicles traveling on a lonely road known for smuggling. Officers saw the vehicles and they did not stop at any of the houses along the road. The vehicles had out of state plates and the officers then had reasonable suspicion for a stop. United States v. Milligan, 2010 U.S. Dist. LEXIS 124341 (D. Ariz. November 19, 2010).*

Officers were on the Green family compound, and they received consent from one person to search another’s home. Here, the officers were on notice that others lived in various places and it was not reasonable to get consent from one to search the dwelling of another. “Rodriguez placed some responsibility on the officer to assess the situation he faces critically.” United States v. Green, 2010 U.S. Dist. LEXIS 124735 (N.D. Ga. October 6, 2010):

Rodriguez placed some responsibility on the officer to assess the situation he faces critically: “Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.” Rodriguez, 497 U.S. at 188. This duty of inquiry is triggered, for example, when the officer obtains information that is subject to differing interpretations. See United States v. Waller, 426 F.3d 838, 847 (6th Cir. 2005) (“a number of other courts have also recognized an officer’s duty to inquire in ambiguous situations”); United States v. Chun Yen Chiu, 857 F. Supp. 353, 361 (D.N.J. 1993) (“Where police officers are faced with an ambiguous situation, unless further inquiry is made which determines that the property about to be searched is subject to ‘mutual use’ by the person giving consent, it is unlawful to enter without a warrant.”).

In this case, it is undisputed that Mr. Green invited Deputy Davenport to enter his uncle’s apartment. However, it would be unreasonable for “law enforcement agents to believe in every instance that someone who invites them into a home or a room is authorized to do so.” United States v. Rosario, 962 F.2d 733, 738 (7th Cir. 1992). The Rosario court applied the “further inquiry” language from Rodriguez to suggest that, “in the absence of sufficient facts, officers have a duty to seek further information in order to determine whether they may reasonably infer that the inviter has the necessary authority to consent to an entry or search of the premises.” Id. Given the situation he faced, including his knowledge that Mr. Green did not reside in the apartment, Deputy Davenport had a duty to make further inquiry before accepting that invitation.

Federal Public Defender, D.Ore., Search and Seizure Outline

Roadside Searches and Detentions

Wiretap Outline

Defendant agreed to talk to the officers and then fled. That gave reasonable suspicion. State v. Banks, 2010 Ohio 5714, 2010 Ohio App. LEXIS 4809 (10th Dist. November 23, 2010)*:

[*P44] “Although ‘[a] suspect is “free to leave” a non-seizure interview, *** when he does so by abruptly bolting after having consented to talk, the officers are free to draw the natural conclusions.’” Moyer at P22, quoting State v. Holloway (Sept. 28, 2000), 10th Dist. No. 99AP-1455, 2000 Ohio App. LEXIS 4430. “Headlong flight–wherever it occurs–is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow (2000), 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L. Ed. 2d 570.

[*P45] When appellant bolted from the interview area, and even more so when he reached towards his waistband while running as the officers pursued, the officers were justified in concluding that they had before them specific and articulable facts to support a reasonable suspicion of criminal activity warranting an investigative stop.

After a controlled buy from a hotel room, officers sought a search warrant and determined that they would detain the occupants who left the room when they returned. They were stopped and taken into the room, but officers were directed not to search until the warrant was signed. When they were notified it was, the search commenced. There is no requirement that the search warrant be physically present at the time of the search. State v. Davis, 2010 Ohio 5704, 2010 Ohio App. LEXIS 4797 (5th Dist. November 15, 2010).*

The search of defendant’s car for a weapon after his traffic stop was valid based on his furtive movements, not the search incident doctrine or the automobile exception. State v. Lanier, 2010 Ohio 5765, 2010 Ohio App. LEXIS 4829 (8th Dist. November 24, 2010).*

Seizure of plaintiff’s computers under a valid search warrant and turning them over to the FBI for analysis resulting in loss of the hard drives did not state a claim against the state. Ferguson v. Ohio State Highway Patrol, 2010 Ohio 5691, 2010 Ohio Misc. LEXIS 325 (Court of Claims October 27, 2010).*