Officers entered defendant’s home without a search warrant, but with an arrest warrant so the entry was permissible under Payton. Once inside, unMirandized questions were asked about the location of the gun he would have, and his admissions were valid under the “public safety exception” to Miranda. United States v. Battle, 2010 U.S. Dist. LEXIS 123448 (E.D. N.C. October 27, 2010).*

A dog alert was probable cause for a search warrant. In any event, the good faith exception would save this search. United States v. Herman, 2010 U.S. Dist. LEXIS 123947 (C.D. Ill. November 23, 2010).*

There is reasonable suspicion here based on the fact defendant had a car from a person he did not know on a 2,800 mile test drive to visit a person he could not name, he had no paperwork for the car, and he was on a road for drug couriers. United States v. Velasco-Garcia, 2010 U.S. Dist. LEXIS 124043 (S.D. Tex. November 23, 2010).*

Defendant was stopped for riding a bicycle on a roadway after dark without a light in Yosemite National Park. The officer had no reasonable suspicion that he was armed, but he asked about weapons, and defendant volunteered that he had a camping knife on him, which is normal in the Park. The officer patted him down and came upon a small hard box in his pocket that had MDMA in it. The box was not subject to “plain feel” under Dickerson and violated the Fourth Amendment. United States v. Arnold, 2010 U.S. Dist. LEXIS 122924 (E.D. Cal. November 3, 2010):

Thus, the salient question is whether, considering the totality of the circumstances in this case, it was reasonable for Ranger Jacobs to believe that the small hard box in Arnold’s pocket could constitute or contain a weapon. Mr. Arnold was stopped for bicycling at night, a crime certainly not reasonably associated with an armed and dangerous perpetrator. Nothing in the record suggests that Mr. Arnold was uncooperative or acted in a threatening manner at any time during the encounter. Ranger Mitrea stood alone with Mr. Arnold, without conducting a Terry frisk, until Ranger Jacobs responded to perform field sobriety tests. Both rangers testified that Mr. Arnold showed minimal signs of intoxication.

The only inclination that Mr. Arnold was armed was his admission that he possessed a camping knife. Ranger Jacobs testified that he believed with respect to weapons, “where there’s one, there’s more”. While that may indeed be true in some cases, the facts of this case were such as to suggest the contrary. Possessing a camping knife in a National Park is so common that it cannot in and of itself suggest the likelihood of additional weapons. Mr. Arnold’s volunteering the knife’s existence is not consistent with a simultaneous desire to conceal another weapon. As noted, the nature of the crime here does not suggest the likelihood of an armed perpetrator. Clearly, the facts of this case are a far cry from those involving suspected burglars and carjackers in possession of a knife, gun, and ammunition as in Hartz.

Once the camping knife was recovered, it was not reasonable to believe that the small box in the pocket of a cooperative individual who had shown no signs of aggression was or could contain a weapon. Thus, the Court finds that removal of the box from Arnold’s pocket under these largely innocent circumstances exceeded the allowable scope of a Terry frisk. Ranger Jacobs’s manipulation of the box by removing it from Mr. Arnold’s pocket violated the Fourth Amendment.

Defendant’s admission that he had 8-10 beers and shots and slurred speech was probable cause justification for a blood draw under Schmerber. State v. Palmieri, 2010 Ohio 5667, 2010 Ohio App. LEXIS 4782 (12th Dist. November 22, 2010).*

An officer saw a car parked in a subdivision under construction where there had been repeated thefts from the construction sites. He approached and found steamed up windows and defendant and his minor nephew. The nephew told the officer about sex in the car, but he didn’t want to get his uncle in trouble. The stop was valid, as was the arrest and then the impoundment and inventory of the car. State v. Klose, 2010 Ohio 5674, 2010 Ohio App. LEXIS 4786 (3d Dist. November 22, 2010).*

Defendant drove too fast into an apartment building parking lot, and the police were called. The officer talked to the defendant and smelled alcohol on his breath, and defendant refused to identify himself and became loud. The officer had probable cause to arrest defendant for being under the influence. City of Lakewood v. Crump, 2010 Ohio 5581, 2010 Ohio App. LEXIS 4697 (8th Dist. November 18, 2010).*

On the front page of today’s Las Vegas Review Journal: Pat-down is letdown at airport by Adrienne Packer the “Road Warrior” columnist who tried to get to a “naked scanner” just so she could endure the search to report on it. To her, it wasn’t as intrusive as she expected. The concluding paragraphs:

TSA agents clutching some innocent passenger’s crotch isn’t acceptable, but that is far from what I experienced. I saw no traveler being patted down other than myself.

And I had to work really hard to be physically searched in a respectful manner. Thanks for nothing, TSA.

Update: And even Flightaware.com has a blog: Backlash grows against airport security measures

Driver’s license checkpoint was valid and not just for “general crime control.” A gun was seen in plain view, and a further search produced drugs. United States v. Waterman, 2010 U.S. Dist. LEXIS 122673 (E.D. N.C. September 21, 2010)*:

Here, a balancing of these three factors clearly weighs in favor of the Government. Regarding the first factor, drivers who are unlicensed or uninsured are in violation of the law and may present a danger to the community. This is certainly a matter of significant public concern. Regarding the second factor, checkpoints such as the one the GPD set up on May 9, 2009 serve both to find and punish such drivers as well as discourage would-be unlawful drivers from driving in the first place. This is not only a sufficient but a substantial advancement of the public’s interest in safer roads and drivers. Regarding the third factor, there is nothing in the record to indicate that the GPD officers unreasonably interfered with the freedom of law-abiding motorists who arrived at the checkpoint. All of the officers at the checkpoint were clearly identifiable as such and at least one patrol car had its blue lights flashing. The checkpoint was clearly visible to approaching motorists from at least 200 feet away. Additionally, Officer Roberson testified that he typically asks drivers only for their license so as to not hold them up unnecessarily. Only in cases such as Defendant’s, when additional suspicious activity resulted in further investigation, were motorists held up more than briefly.

[Note: Drug interdiction officers were also at the checkpoint.]

From the NYT: Justices Are Long on Words but Short on Guidance by Adam Liptak:

In June, the Supreme Court issued a decision on the privacy rights of a police officer whose sexually explicit text messages had been reviewed by his employer. Ever since, lower court judges have struggled to figure out what the decision means.

The case “touches issues of far-reaching significance,” Justice Anthony M. Kennedy wrote. Then he explained why the court would decide none of them. A definitive ruling should be avoided, he said, because “it might have implications for future cases that cannot be predicted.”

Justice Antonin Scalia went along with the decision, but he blasted his colleagues for “issuing opaque opinions.”

A month later, Judge Frank M. Hull of the federal appeals court in Atlanta complained that the privacy decision featured “a marked lack of clarity,” and was almost aggressively unhelpful to judges and lawyers.

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.

Defendant’s niece was the caregiver to defendant’s disabled son. When the police got there, they asked questions about her control over the premises, and they concluded from her answers that she was one with actual and apparent authority to consent and full access to all parts of the house. When she testified at the suppression hearing, she backed off some things and seemed like she was trying to mitigate her consent. The court concludes that she was not credible. United States v. Garcia, 2010 U.S. Dist. LEXIS 121111 (N.D. Ill. November 16, 2010)* [I don’t like this outcome. Freedom to go through the house as a caregiver simply cannot equate with apparent authority to let the police in to consent. What about the “cleaning lady”?]

There was no reasonable expectation of privacy in a laundry room in an apartment building common area. While there was a sign that the door was to remain locked, it wasn’t [not that that would be determinative anyway]. Anybody could come and go. United States v. Cureton, 2010 U.S. Dist. LEXIS 120911 (S.D. Ill. November 16, 2010).*

Defendant’s laptop and cameras were searched at a secondary inspection point at Lewiston NY after defendant, a German national with a permanent resident card, traveled to Niagara Falls for one night from Brooklyn knowing no one in Canada. When he was sent over for secondary inspection, there was no reason to believe defendant had child pornography on his computer. It is normal to look at the pictures on cameras, and those pictures were of children in suggestive poses. United States v. Rogozin, 2010 U.S. Dist. LEXIS 121162 (W.D. N.Y. November 16, 2010)*:

I need not decide whether or not the search of the laptop computer can be considered “routine”, because even if it was not, defendant’s failure to maintain eye contact during the initial interview, coupled with his questionable itinerary (spending only one night in the area after driving from Brooklyn), were sufficient to create reasonable suspicion in the mind of inspector Janiszeski (Irving, supra), which would justify examining the laptop during the secondary inspection.

[People don’t pay attention to these things, but U.S. and Canadian Customs share a database, and they know when a car crosses over into Canada. You lie about the length of your stay, and they will detain you for more questioning. They also know every past crossing your car made.]

WashingtonPost.com this afternoon: TSA agent punched in chest by passenger by Ed O’Keefe, allegedly playfully, but he was arrested for battery:

A passenger was arrested Tuesday for punching a Transportation Security Administration officer in the chest after passing through a body-imaging machine at Indianapolis International Airport, police said.

According to police, John A. Christina, 51, admitted to punching the officer after passing through the machine and asking the officer about increased security procedures. The officer replied that he does not normally work in Indianapolis and could not answer the question.

Christina then punched the officer in the chest, police said. The officer, who is normally assigned to the Dayton, Ohio, airport, asked Christina why he punched him.

“I was only kidding with you,” Christina replied.

Other TSA agents and passengers witnessed the incident, police said, and Christina was arrested and charged with battery.

CNN.com: TSA: Despite objections, all passengers must be screened.

Go to YouTube.com and search “TSA searches.”

Update: Humorist Dave Barry And The TSA going up at 7 pm EST (“Host Melissa Block talks to writer Dave Barry about his unpleasant airport experience under the new security system that examines passengers electronically. He was singled out for a pat-down after authorities told him he had a ‘blurry groin’ — meaning the detector was unable to get a clear picture of his body.”)

The Ninth Circuit upheld GPS surveillance in United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. January 11, 2010). Yesterday, the denial of rehearing en banc was entered, with Judge Kozinski dissenting, with four others:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

. . .

I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

A CIA lawyer employee has no claim that the CIA searched and monitored his government issued computer as a part of maintaining his security clearance. Ciralsky v. CIA, 2010 U.S. Dist. LEXIS 120617 (E.D. Va. November 15, 2010):

Defendants are correct that the Fourth Amendment and FISA claims are far too general and do not satisfy civil pleading standards. Ciralsky has not alleged anything other than broad, conclusory statements about a search conducted by unknown officials. An equally important issue, which neither the defendants nor plaintiffs address, is that even if the allegations were more specific, the Fourth Amendment claim would not be legally viable. The Supreme Court, in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), found that a police department did not violate an employee’s Fourth Amendment rights when it monitored the employee’s text messages on a government-issued pager because “the search was motivated by a legitimate work-related purpose.” Id. at 2633. Ciralsky alleges that the CIA monitored his employer-provided computer to determine whether to entrust him with access to national security information. As in Quon, the CIA search had a legitimate, work-related purpose and involved a computer that it provided, not Ciralsky’s personal computer. Therefore, Ciralsky does not state a valid Fourth Amendment claim.

This isn’t even close. Talk about a national security exception ….

Tolentino v. New York, 09-11556, cert. granted November 15, 2010. SCOTUSBlog is here. The opinion below is People v. Tolentino, 2010 NY Slip Op 2643, 14 N.Y.3d 382, 926 N.E.2d 1212, 900 N.Y.S.2d 708 (2010), posted here back on April 1. From the New York Court of Appeals decision:

As the Farias-Gonzalez court pointed out, the policy rationale of the exclusionary rule would not be served by its application to identity-related evidence. The social costs of excluding such evidence are great: courts and the government are entitled to know who defendants are, since permitting defendants to hide their identity would undermine the administration of the criminal justice system and essentially allow suppression of the court’s jurisdiction. On the other side of the equation, there are few deterrence benefits. The Constitution does not prohibit the government from requiring a person to identify himself to a police officer. In addition,

“even if a defendant in a criminal prosecution successfully suppresses all evidence of his identity and the charges are dropped, the Government can collect new, admissible evidence of identity and reindict him. This is so because identity-related evidence is not unique evidence that, once suppressed, cannot be obtained by other means” (Farias-Gonzalez, 556 F3d at 1188-1189 [citation omitted]).

As a result, “[t]he application of the exclusionary rule to identity-related evidence will have a minimal deterrence benefit, as its true effect will often be merely to postpone a criminal prosecution” (id. at 1189).

Nor do we believe that “[t]oday’s opinion [will] give[ ] law enforcement an incentive to illegally stop, detain, and search anyone for the sole purpose of discovering the person’s identity and determining if it matches any government records accessible by the police” (dissenting op at 390). Police are already deterred from conducting illegal car stops because evidence recovered in the course of an illegal stop remains subject to the exclusionary rule.

While the Supreme Court has held that fingerprint evidence—evidence the dissent describes as “paradigmatic identity evidence” (dissenting op at 389)—may be subject to the exclusionary rule (Davis v Mississippi, 394 US 721, 724 [1969]), Davis, as well as Hayes v Florida (470 US 811, 815 [1985]), is distinguishable from this case in two ways. First, the defendants in those cases were illegally stopped for the purpose of obtaining evidence—fingerprints—that would connect the defendants to crimes under investigation. The “identity evidence” was not preexisting. Second, the fingerprints were used, not to establish the identities of the individuals apprehended by the police and subject to the jurisdiction of the court, but to connect those individuals’ fingerprints to latent prints recovered from the crime scene. The evidence established defendants’ “identities” as the perpetrators, but not their “identities” in the sense relevant here. Our decision today would not alter the outcome of those cases. We merely hold that a defendant may not invoke the fruit-of-the-poisonous-tree doctrine when the only link between improper police activity and the disputed evidence is that the police learned the defendant’s name.

The cert grant here was a surprise to both me and SCOTUSBlog, which has nothing yet on the case.

Update: I was thinking about this last night, and I now think that this is one of those cases where they took it just to further limit the exclusionary rule.

On Wired.com today: 100 Naked Citizens: 100 Leaked Body Scans from U.S. Marshals with courthouse scans, no less.

At the heart of the controversy over “body scanners” is a promise: The images of our naked bodies will never be public. U.S. Marshals in a Florida Federal courthouse saved 35,000 images on their scanner. These are those images.

A Gizmodo investigation has revealed 100 of the photographs saved by the Gen 2 millimeter wave scanner from Brijot Imaging Systems, Inc., obtained by a FOIA request after it was recently revealed that U.S. Marshals operating the machine in the Orlando, Florida courthouse had improperly-perhaps illegally-saved images of the scans of public servants and private citizens.

On Lexis’s Emerging Issues Commentary by Michele L. Berry: United States v. Maynard and GPS Surveillance: Prolonged Surveillance Equates a Search under the Fourth Amendment (summary version) [Lexis subscriber version here.]

Officers went into defendant’s offices in Hong Kong in an investigation of conspiracy to import illegal munitions into the U.S. The entry into the office by U.S. officials in Hong Kong was not governed by the Fourth Amendment because defendant was not a U.S. citizen, even if it was a “search” and not just a plain view. United States v. Shek, 2010 U.S. Dist. LEXIS 119484 (D. Mass. November 10, 2010):

Moreover, to the extent that it could be said there was a search of Jetpower by the U.S. agents, the Fourth Amendment’s protections do not apply. Both the Supreme Court and the First Circuit have unequivocally stated that the Fourth Amendment does not apply to searches or seizures of aliens that take place on foreign territory. See United States v. Verdugo-Urquidez, 494 U.S. 259, 267, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990) (“There is … no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters.”); United States v. Vilches-Navarrete, 523 F.3d 1, 13 (1st Cir. 2008) (“As we have said before, the Fourth Amendment does not apply to activities of the United States against aliens in international waters.” (citation and internal quotation marks omitted)).

Like the defendants in Verdugo-Urquídez and Vilches-Navarrete, at the time of the 2003 visit, Chan was an alien, not residing in the United States, and the search of his office took place on foreign soil. Verdugo-Urquídez, 494 U.S. at 274; Vilches-Navarrete, 523 F.3d at 13. Consequently, with respect to any observations made by the agents while present at Jetpower’s office either on October 20 or 29, 2003, “the Fourth Amendment has no application.” Verdugo-Urquídez, 494 U.S. at 275. Accordingly, I will deny the motion to suppress any evidence arising from the purported search of Jetpower’s office.

New searches too personal for some air travelers by Derek Kravitz in today’s Washington Post:

Airport travelers call it groping, prodding or just plain inappropriate – a pat-down that probes places where the sun doesn’t shine. The Transportation Security Administration calls it the new reality of airport security.

Following the uncovering of a terrorist plot last month to blow up cargo planes en route to the United States, the TSA has instituted a new type of pat-down of passengers, a move that’s part of a general tightening of air security. If a full-body scanning machine shows something strange or a passenger declines to go through the machine – which is now in use in the Washington region’s three major airports – an officer will perform a more personal search.

The examinations routinely involve the touching of breasts and genitals, invasive searches designed to find weapons and suspicious items. The searches, performed by TSA security officers of the same sex as the passenger, entail a sliding hand motion on parts of the body where a lighter touch was used before, aviation security analysts say. The areas of the body that are being touched haven’t changed.

This is mild. Many citizens and bloggers are accusing TSA of sexual assault from such diverse sources as CBSNews, Prison Planet, Debate Politics, Compuserve, Huliq, and others.

The fact is that these patdowns are just as intrusive as, or more intrusive than, a patdown based on reasonable suspicion of being armed with a weapon or being checked into a jail. And just for the price of buying an airline ticket you get your genitals touched like a common criminal. What have we come to? Suspicionless patdowns that include the genitals.

Update: As I was sitting here starting to work on case postings, I just happened to think: Last month’s “terrorist plot” involved laser printer cartridges in cargo, not genitals. What’s the connection? Last Christmas was the underwear bomber.

On the Findlaw Blotter: Is Philly’s ‘Stop and Frisk’ Racial Profiling? by Laura Strachan:

Stop and frisk sounds more like a trendy dance move or a board game than a form of racial profiling. But that is exactly what some critics are claiming the real purpose behind Philly’s stop and frisk approach to law enforcement is. The Philadelphia stop and frisk policy has now become the center of a civil rights lawsuit, according to The Philadelphia Inquirer.

The suit claims that in 2009, 72% of pedestrians that were stopped under the policy were African American. “Implicitly, the message is to make as many stops as you can and hopefully you will find something,” said one attorney working on the case. The purpose behind the Philly stop and frisk policy was to decrease the rising crime rate on the streets. Although officers were trained, the suit alleges that the behavior of the force seems to ignore the training.

Memphis PD police cars have Automatic License Plate Recognition (“ALPR”) technology which reads license plates and compares the information against a national database of stolen cars. A hit is reasonable suspicion for a stop. Observation of shotgun shells in the back seat justified a search of the vehicle for a weapon. United States v. Lurry, 2010 U.S. Dist. LEXIS 118456 (W.D. Tenn. June 23, 2010).*

Gant would be applied retroactively without guidance from the Missouri Supreme Court. State v. Kingsley, 2010 Mo. App. LEXIS 1490 (November 9, 2010).*

The officer stopped because defendant’s car was broken down, so he did not stop the defendant. United States v. 2002 BMW 745i, 2010 U.S. Dist. LEXIS 118656 (D. Neb. November 5, 2010)*:

The BMW was completely disabled at the time the canine sniff was ordered and conducted, and Mr. Kasper was unable to remove the BMW from the roadside without a tow truck. Mr. Kasper’s personal freedom of movement was not delayed as a result of the canine sniff or while the canine sniff was conducted, and had the canine not indicated to the presence of a controlled substance, the BMW would have been towed without any meaningful delay. Any delay caused by conducting the canine sniff before the towing procedures could begin did not violate Mr. Kasper’s Fourth Amendment rights. See, e.g., United States v. Va Lerie, 424 F.3d 694, 706 (8th Cir. 2005) (applying similar principles to the brief detention and canine sniff of a traveler’s luggage); United States v. Quoc Viet Hoang, 486 F.3d 1156, 1162 (9th Cir. 2007) (finding a brief detention of a package did not violate the fourth amendment where it did not interfere with the delivery in the normal course of business without meaningful delay).

Pilots urged to avoid body scanning by Marnie Hunter on CNN:

Pilots’ unions for US Airways and American Airlines are urging their members to avoid full-body scanning at airport security checkpoints, citing health risks and concerns about intrusiveness and security officer behavior.

. . .

“Based on currently available medical information, USAPA has determined that frequent exposure to TSA-operated scanner devices may subject pilots to significant health risks,” Cleary wrote.

American Airlines pilots have also received guidance from their union, the Allied Pilots Association, to decline full-body scanning. APA represents 11,000 pilots.

Officer behavior?

USAPA refers to incidents where Transportation Security Administration officers may have implemented the screening technique inappropriately.

One pilot described his experience as “sexual molestation,” according to Cleary’s letter. Bates wrote, “There is absolutely no denying that the enhanced pat-down is a demeaning experience.”

“In determining voluntariness, the following facts are considered: (1) the person’s age, intelligence and education; (2) whether she was advised of her constitutional rights; (3) how long she was detained before she gave her consent; (4) whether her consent was immediate, or was prompted by repeated requests by the authorities; (5) whether any physical coercion was used; (6) whether she was in police custody when she gave her consent; and (7) the intoxication of the individual.” Defendant said she was under the influence of Vicodin, but there is no evidence that she was intoxicated. United States v. Wiley, 2010 U.S. Dist. LEXIS 119037 (N.D. Ind. November 8, 2010).*

Defendant consented to go to the police station, and that contributed to the finding of voluntariness. United States v. Barber, 2010 U.S. Dist. LEXIS 118608 (S.D. W.Va. November 8, 2010).*

Stop for an open container was valid, and it was in a high-crime area the officer normally patrolled. Defendant’s furtive movement justified a patdown. United States v. Terry, 2010 U.S. Dist. LEXIS 118782 (W.D. Pa. November 8, 2010).*

Defendant’s claims of IAC for defense counsel at the suppression hearing was unavailing. The things that petitioner claimed would have aided the court wouldn’t, so no IAC. United States v. Alexander, 2010 U.S. Dist. LEXIS 118804 (W.D. Wis. November 8, 2010).*