The police received an anonymous 911 call about a robbery by two black males in a silver Escalade. It was insufficient to provide reasonable suspicion for a stop without more, and, on following the car, more was evident and gave enough for a stop. United States v. Parker, 2010 U.S. Dist. LEXIS 118735 (E.D. Pa. November 5, 2010)*:

(1) The reputation of the area in which the stop occurred for criminal activity;
(2) A suspect’s presence on a street at a late hour;
(3) A suspect’s “nervous, evasive behavior,” or flight from police;
(4) A suspect behaves in a way that conforms to police officers’ specialized knowledge of criminal activity;
(5) the geographic and temporal proximity of the stop to the scene of the alleged crime; and
(6) the number of persons in the area.

Defendant was stopped and the officer could smell marijuana, but he did not immediately act on that, but the delay did not nullify the probable cause. His efforts to get defendant out of the car resulted in defendant being arrested for battery, and any affirmative defense to the battery did not undermine probable cause. United States v. Hampton, 2010 U.S. Dist. LEXIS 119092 (M.D. Fla. September 15, 2010).*

Petitioner’s habeas claim while his state criminal case is pending is barred by Younger v. Harris, so he obviously gets no COA for appeal. Grimes v. Fourth Judicial Dist. Court, 2010 U.S. Dist. LEXIS 118599 (D. Nev. October 20, 2010).*

Officers used a ruse to get access to defendant’s computer that there had been a computer security breach where family pictures had been posted on the internet. The court finds defendant’s authority, United States v. Richardson, sufficiently different that the consent was valid. United States v. Krueger, 2009 U.S. Dist. LEXIS 130067 (E.D. Wis. July 22, 2009):

Relying on United States v. Richardson, 583 F. Supp. 2d 694 (W.D. Pa. 2008), defendant argues that the police caused him to believe that he was a victim of a computer security breach, that his consent was limited to investigating such a breach, and that the search for images of child pornography thus exceeded the scope of his consent. Like the magistrate judge, I reject the argument.

In Richardson, officers conducting a child pornography investigation obtained consent to search the defendant’s computers by leading him to believe that he had been a victim of credit card fraud. Id. at 698-701. The officers then conducted a forensic examination of the computers, which revealed images of child pornography. Id. at 703-04. The lead officer admitted that she used a ruse to obtain consent, which she maintained throughout her dealings with the defendant. Id. at 701-05. The court found that, based on the officers’ artifice in approaching the defendant as a potential crime victim, his consent was limited to evidence of illegal credit card activity over the internet. Id. at 718.

The present case involves no similar trickery. Andrews told defendant:

I was following up on a computer investigation in which images of his family members had been posted to the Internet. And I told him that I was concerned because they were images of his family members. And, that’s why I had come to his house for the investigation, and that it involved computers in his house.

(Tr. at 11.) Andrews may not have fully disclosed the nature of her investigation, but she made no false or misleading statements. She did not lead defendant to believe that he — as opposed to his family members — was a victim, or suggest that the officers would refrain from searching the computers for any evidence of his potential wrongdoing. Further, unlike in Richardson, nothing in Andrews’s preliminary statements suggested a limitation on the scope of the search. In Richardson, the court found the forensic search for images wholly unrelated to the expressed object of the search — illegal, on-line use of credit cards. See id. at 720-21. Here, the conversation between defendant and Andrews, although general, pertained to “images” of defendant’s family members, and Andrews specifically advised defendant that the computers would be removed from the residence for a forensic exam. (Tr. at 16.) Finally, as the magistrate judge explained, an investigation into how the images Andrews mentioned ended up on the internet “would naturally include a review of image files on [defendant’s] computer to determine, for example, if the specific photographs were on [defendant’s] computer, as well as internet protocol data to determine, for example, which computer might have posted the photographs.” (R. 24 at 11.)

Fliers debate airport prodding, scanning by Marnie Hunter on CNN.com.

Increased scanning and prodding at airport checkpoints have many in the sock-footed parade of American air travelers up in arms about security screening.

Full-body imaging machines and enhanced pat downs are among the more recent — and controversial — tools the Transportation Security Administration has added to its layered approach to detecting threats.

CNN.com readers have expressed and debated their views in the comments area of stories related to airport screening. Here are some common views:

I got my first full body scan by the unseen character in the other room. I’m sure the TSA guy was joking just like the one in Miami.

Finally, a paying job for peeping toms and other men of vision.

Look out, your medicine is watching you by Ben Hirschler of Reuters: smart RFID transmitters in medication, activated by stomach acid, transmitting to a patch on the skin to tell whether the patient is taking medication properly.

And you thought those guys talking about the transmitters planted in their bodies were crazy… Just ahead of their time.

Armed with an arrest warrant, officers lawfully entered defendant’s apartment to make an arrest since they had a reasonable belief he was present. Once inside, however, they roamed around to see what they could see, and this was not a valid plain view. “Since the government has not shown that the agents had a lawful reason to be in the living room or kitchen, where they allegedly observed the items which were subsequently seized, the search is illegal even if the items were in ‘plain view’ from those vantage points. ‘If the scope of the search exceeds that permitted by the … character of the relevant exception from the warrant requirement, the search is unconstitutional without more.’ Horton v. California, 496 U.S. 128, 140, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).” The government did not show that a search warrant would not have inevitably been issued, so the search of those rooms was invalid. United States v. Bazzi, 2010 U.S. Dist. LEXIS 117087 (W.D. N.Y. April 21, 2010).

In another order in that same case, an undercover officer going into defendant’s store to buy counterfeit goods was not a search and seizure under Maryland v. Macon. Once in the store, everything else that happened was in plain view. United States v. Bazzi, 2010 U.S. Dist. LEXIS 117024 (W.D. N.Y. April 14, 2010).*

Yet a third order holds that officers have a duty to allow arrestees to get clothing and get dressed, but the officers may control the defendant throughout for officer safety. United States v. Ling Zhen Hu, 2010 U.S. Dist. LEXIS 117088 (W.D. N.Y. November 3, 2010):

The second key fact making entry into the living room permissible in this case is that both defendants were in a state of undress when apprehended. Hu wore only a tank top and underwear, and Lin was dressed in a t-shirt and underwear. Numerous circuits, including the Second Circuit, recognize that a defendant’s scant clothing provides exigent circumstances for a warrantless entry so as to permit a defendant to search for proper clothing. See e.g. United States v. Di Stefano, 555 F.2d 1094, 1101 (2d Cir. 1977) (allowing an officer’s entry into a bedroom solely for the purpose of maintaining control over defendant while she dressed herself); see also United States v. Gwinn, 219 F.3d 326, 335 (4th Cir. 2000) (determining that a defendant’s lack of shirt and shoes while outdoors justified an officer’s warrantless re-entry into the house); United States v. Butler, 980 F.2d 619, 621-22 (10th Cir. 1992) (permitting police to retrieve a defendant’s shoes from his house, but noting that entry into the house does not immediately follow from “the desire of law enforcement officers to complete the arrestee’s wardrobe”). Indeed, the Second Circuit has stated that officers have a “duty” to find appropriate clothing of a defendant upon arrest or to permit that defendant an opportunity to do so herself. DiStefano, 555 F.2d at 1101 (citing United States v. Titus, 445 F.2d 577 (2d Cir.), cert. denied, 404 U.S. 957, 92 S. Ct. 323, 30 L. Ed. 2d 274 (1971); see also United States v. Rudaj, 390 F. Supp. 2d 395, 401 (S.D.N.Y. 2005) (“The Second Circuit has long recognized that an arresting officer has a duty to ensure that an arrestee is sufficiently dressed before removing her from her residence.”). In the fulfillment of that duty, the officer may accompany the arrestee into the residence “to maintain a ‘watchful eye’ on her and to assure that she did not destroy evidence or procure a weapon.” Rudaj, 390 F. Supp. 2d at 401.

The Framers’ Intent: John Adams, His Era, and the Fourth Amendment by Thomas K. Clancy of the University of Mississippi School of Law, to be published in the Indiana Law Journal, Vol. 86, 2010, on SSRN:

Abstract:

For many years, I have relied on others to cull the historical records and have cited them to support what I thought was accurate historical reporting. In the past decade or so, there have been some broad claims about the historical record that contradict conventional wisdom. Those views have gained substantial traction. I believe that none of the prior accounts properly report or assess the origins of the Fourth Amendment and the central role John Adams played. That is the purpose of the article, which contains new information and adds a new context to the framing of the Amendment.

Courts and scholars seeking the original understanding of the Fourth Amendment have confronted two fundamental questions: what practices was the Amendment designed to regulate; how should a constitution regulate such practices? To inform the answers to those questions, this article offers a new perspective of, and information on, the historical record regarding the framing of the Amendment. It also presents for the first time a detailed examination of John Adams’ fundamental influence on the language and structure of the Amendment and his knowledge of, and views on, how to regulate searches and seizures.

Most of the language and structure of the Fourth Amendment was primarily the work of one man, John Adams. Upon examination, Adams stands out in the founding era as having profound opportunities to examine search and seizure practices and as having the most important role in formulating the language and structure of the Fourth Amendment. If the intent of the Framers is a fundamental consideration in construing the Constitution, as the Court has repeatedly told us it is, then John Adams’ knowledge and views should be considered an important source for understanding the Fourth Amendment. More fundamentally, Adams’ appreciation of search and seizure principles reflects a broader mosaic that demonstrates that the Fourth Amendment was the product of a rich jurisprudence on search and seizure. That jurisprudence offered a structured series of principles to regulate the search and seizure activities of that era and the Amendment was not merely a reaction to general warrants. Further, although the framing era sources did not always agree on the details of the criteria for regulating searches and seizures, they were united in seeking objective criteria to measure the propriety of governmental actions. That quest was firmly embedded into the language and structure of the Fourth Amendment.

In a moment of true candor, Gov. Rick Perry on The Today Show yesterday: President Bush “Defended Us From Freedom.”

Suppression hearings 2010–satirical video on xtranormal.com.

The D.C. Circuit held on Friday that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limiting Knotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v. Maynard, 615 F.3d 544 (D.C.Cir. August 6, 2010):

Two circuits, relying upon Knotts, have held the use of a GPS tracking device to monitor an individual’s movements in his vehicle over a prolonged period is not a search, United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), but in neither case did the appellant argue that Knotts by its terms does not control whether prolonged surveillance is a search, as Jones argues here. Indeed, in Garcia the appellant explicitly conceded the point. …

In a third related case the Eighth Circuit held the use of a GPS device to track a truck used by a drug trafficking operation was not a search. United States v. Marquez, 605 F.3d 604 (2010). …

In each of these three cases the court expressly reserved the issue it seems to have thought the Supreme Court had reserved in Knotts, to wit, whether wholesale, or mass electronic surveillance of many individuals requires a warrant. Marquez, 605 F.3d at 610; Pineda-Moreno, 591 F.3d at 1216 n.2; Garcia, 474 F.3d at 996. As we have explained, in Knotts the Court actually reserved the issue of prolonged surveillance. That issue is squarely presented in this case. Here the police used the GPS device not to track Jones’s movements from one place to another, Knotts, 460 U.S. at 281, but rather to track Jones’s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place.

…

Two considerations persuade us the information the police discovered in this case — the totality of Jones’s movements over the course of a month — was not exposed to the public: First, unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one’s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more — sometimes a great deal more — than does the sum of its parts.

a. Actually exposed?

The holding in Knotts flowed naturally from the reasoning in Katz: ―What a person knowingly exposes to the public … is not a subject of Fourth Amendment protection,. 389 U.S. at 351. See Knotts, 460 U.S. at 281–82 (movements observed by police were ―voluntarily conveyed to anyone who wanted to look.). The Government argues the same reasoning applies here as well. We first consider the precedent governing our analysis of whether the subject of a purported search has been exposed to the public, then hold the information the police discovered using the GPS device was not so exposed.

. . .

As with the mosaic theory, often invoked by the Government in cases involving national security information, what may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene. CIA v. Sims, 471 U.S. 159, 178 (1985) (internal quotation marks deleted); see J. Roderick MacArthur Found. v. F.B.I., 102 F.3d 600, 604 (D.C. Cir. 1996). Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

Other courts have recognized prolonged surveillance of a person’s movements may reveal an intimate picture of his life. See Galella v. Onassis, 353 F. Supp. 196, 227–28 (S.D.N.Y. 1972) (Plaintiff’s endless snooping constitutes tortious invasion of privacy …. [he] has insinuated himself into the very fabric of Mrs. Onassis’ life.) (aff’d in relevant part 487 F.2d 986, 994 & n.12 (2nd Cir. 1973) (if required to reach privacy issue would be inclined to agree with district court’s treatment)). Indeed, they have reached that conclusion in cases involving prolonged GPS monitoring. See People v. Weaver, 909 N.E. 2d 1194, 1199 (N.Y. 2009) (Prolonged GPS monitoring yields … a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits.); State v. Jackson, 76 P.3d 217, 224 (Wash. 2003) (en banc) (In this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles. The GPS tracking devices record all of these travels, and thus can provide a detailed picture of one’s life.).

See Orin Kerr in the Volokh Conspiracy and eff.org’s Court Rejects Warrantless GPS Tracking, EFF-ACLU Arguments Against Always-On Surveillance Win The Day.

Detaining and then handcuffing a potential suspect during the execution of a search warrant was reasonable under the circumstances under Muehler, and it did not require probable cause as to him. United States v. Maddox, 2010 U.S. Dist. LEXIS 112847 (N.D. Ga. September 7, 2010):

While Maddox correctly notes that law enforcement’s motives in sequestering him are relevant, so long as it was reasonable under the circumstances to detain Maddox during the execution of the search warrant by handcuffing and seating him in the rear of a police car, he was not subjected to an illegal detention or a de facto arrest. Here, unlike the individual challenging the constitutionality of her detention in Muehler, Maddox was not a mere innocent occupant of the house being searched, detained as a result of unfortunate happenstance. He was instead the primary suspect in a robbery investigation, and his presence during the execution of the search warrant presented a legitimate safety concern, as well as a risk that he would flee or interfere with the search. See Muehler, 544 U.S. at 98; Bautista, 684 F.2d 1286, at 1288.

Defendant’s patdown was justified by a 911 call of assault on the street of a pregnant woman by a specifically described man. The officer got to the scene and saw no woman, but saw the man who was nervous and sweating despite the cold and he would not take his hands out of his pockets. The officer was justified in patting him down, and the vials of drugs in his pocket were easily determined by plain feel to be drugs under Dickerson. United States v. Robinson, 2010 U.S. Dist. LEXIS 113204 (E.D. Pa. October 22, 2010).*

Defendant was the apparent subject of a 911 caller about an indecent exposure complaint of a man in dreadlocks with a white shirt at a particular place. Defendant matched the description, and his encounter with the police, including his patdown was purely by consent. When defendant was arrested, the bag with him was properly inventoried. United States v. White, 2010 U.S. Dist. LEXIS 113991 (D. S.C. October 26, 2010).*

2255 petitioner’s Gant claim was unreviewable in post-conviction under Stone v. Powell. [He did not allege an IAC claim. Note to readers: I almost never include cases citing Stone. If criminal defense lawyers don’t know that by now, they are beyond my help here. You have to tie the Fourth Amendment claim to an IAC claim via Kimmelman. But, I know that nonlawyers read this, too, and pro se 2255’s and state post-convictions make this mistake everyday, and Stone is 34 years old.] Smith v. United States, 2010 U.S. Dist. LEXIS 114199 (N.D. Ohio October 27, 2010).*

The CI here was clearly reliable because the police listened in to telephone calls between him and the defendant for their probable cause. United States v. Constantine, 2010 U.S. Dist. LEXIS 113969 (D. Minn. October 26, 2010).*

While this defendant was the target of an eavesdropping order, he had no standing to challenge a recording at the jail between a lawyer and another person involving him where bribery of a witness was discussed. United States v. Ramos-Gonzalez, 2010 U.S. Dist. LEXIS 113971 (D. P.R. October 25, 2010):

During the period between November 8, 2007 and November 19, 2007 a meeting between cooperating defendant Canuelas and Bronco, a licensed attorney in the Puerto Rico state court, was arranged by Laboy with the assistance of Zabala. On December 1, 2007, Bronco and Arroyo, another lawyer, met with Canuelas without the previous authorization of his attorney. It is alleged that during this meeting, which was not recorded, Bronco asked Canuelas to sign a piece of paper indicating that Bronco had authorization from the cooperating defendant to meet with him and that Canuelas’ attorney was aware of the visit.

The Federal Bureau of Investigations (FBI) sent the Warden of the MDC a letter in which it requested and through which it obtained authorization to conduct covert recordings of the meetings between Canuelas and Bronco and Arroyo within the MDC. (Docket No. 934). As a result subsequent meetings between Canuelas and attorneys Bronco and Arroyo were audio and video recorded. The recorded meetings spanned from December 10, 2007 until January 2008. Defendant Bronco met with Canuelas on December 7, 2007. During this meeting Bronco hand-wrote a sworn statement that contained false statements concerning Canuelas’ knowledge of the involvements of several defendants in Criminal Case No. 07-318 (PG). Defendant Bronco then urged Canuelas to sign and initial the statement. The cooperating defendant signed the statement but reminded Bronco that the statements contained therein were false. On December 10, 2007 Arroyo met with Canuelas and urged the cooperating defendant to sign a typed version of the hand-written statement previously drafted by Bronco on December 7, 2007. Canuelas refused to sign the typed version of the statement after telling Arroyo that the statements contained therein were false. On December 11, 2007, Bronco and Arroyo met with Canuelas and sought to have him sign the typed version of the sworn statement. During this meeting Bronco was recorded on audio and video assuring the cooperating defendant that he would receive payment for his statement in the amount of twelve thousand dollars (12,000). Bronco again visited the cooperating defendant on January 2, 2008 with a slightly different false sworn statement in Bronco’s handwriting and had Canuelas sign it. On February 5, 2008 a Superseding Indictment, which included charges of conspiracy to tamper with a government witness, aiding and abetting to tamper with a government witness, and aiding and abetting to bribe a government witness, was returned.

They were also not protected by attorney-work product:

Defendant also claims that he has adequate standing to challenge the admission of the recordings under the work product doctrine. Although Defendant does not explicitly state his argument, the Court understands that he claims that he has standing to suppress the recordings because they are protected by the work product doctrine and are subject to an expectation of privacy under the Fourth Amendment. As discussed in the previous section, the Court understands that the Defendant is not an aggrieved person with standing to challenge the recordings. Moreover, the Court finds that Defendant lacks standing to assert any Fourth Amendment claims under the work product doctrine.

The work product privilege exempts documents prepared by an attorney in contemplation of litigation. …

The work product doctrine is also vulnerable to the crime or fraud exception in situations where the work product is part of a criminal scheme. In re John Doe Corp., 675 F.2d 482, 491-492 (2d Cir. 1982); In re Special September 1978 Grand Jury (II), 640 F.2d 49, 62 (7th Cir. 1980). See also In re Doe, 662 F.2d 1073, 1078-1079 (4th Cir. 1981) (clarifying that the work product doctrine should not lend itself to use by lawyers seeking to insulate themselves from criminal prosecution).

Other sister courts have concluded that it would be perverse “to allow a lawyer to claim an evidentiary privilege to prevent disclosure of work product generated by those very activities the privilege was meant to prevent.” Moody v. Internal Revenue Service, 654 F.2d 795, 800, 210 U.S. App. D.C. 80 (D.C. Cir. 1981). In other words, caselaw disfavors the use of the work product doctrine in order to cover up activities that are destructive of the legal system. Id. The Second Circuit has further stated examples of actions that are unlikely to be protected by the work product doctrine, “Similarly, where a party suborns perjury by a witness to bolster a claim or defense, [c]ommunications or work product relating to that witness may also be discoverable.” In re Richard Roe, Inc., 168 F.3d 69, 72 (2d Cir. 1999).

. . .

The Court further concludes that even if Defendant met the work product standing requirements, the recordings in question would not be protected. The meetings between Bronco, Arroyo, and Canuelas were directed at convincing Canuelas to submit false sworn testimony rather than to interview a potential witness. (Docket No. 2437). The mere fact that Bronco was a licensed attorney and working for Defendant when he met with Canuelas does not mean that the conversations are automatically protected under the work product doctrine. Moreover, Bronco was not licensed to practice in the District Court of Puerto Rico and as a result his meetings with Canuelas could not have possibly been prepared in anticipation of litigation concerning the federal charges against Ramos.

Thus, the Court concludes that Bronco did not meet with Canuelas in his capacity as a lawyer and as a result the recorded conversations are not protected by the work product doctrine, nor do they have an expectation of privacy under the Fourth Amendment.

Finally, attorney-client privilege was rejected:

In his motion to suppress, Ramos attempts to convince the Court that the recorded conversations were covered under the attorney-client privilege. However, Defendant does not provide reasoning for this conclusion, nor does he cite relevant caselaw that would aid the Court in reaching this conclusion. The Court in its analysis and application of the law to the facts concludes that the totality of the circumstances suggest that there was no attorney client relationship. At the time that Canuelas met with Bronco and Arroyo, he was already represented by the Office of the Public Defender and Canuelas was not seeking legal advice. Moreover, the recorded conversations were not legal in nature and the meetings were concerned with illegal efforts to encourage Canuelas to submit a false statement. (Docket No.2437). Thus, when we examine the totality of the interactions between Canuelas, Bronco, and Arroyo we conclude that there was no attorney-client relationship and that the federal protections offered to attorney-client conversations do not extend to the communications that the Defendant seeks to suppress. The Court does not find it necessary to enter into an analysis regarding the crime-fraud exception because it finds that the attorney-client privilege is inapplicable in this case.

Remember Rule 5 in § 1:1 of my Professional Responsibility in Criminal Defense Practice (3d ed. 2005):

Say nothing or do nothing that you would be afraid to read about in the newspaper or in a transcript or hear in a courtroom someday.

Because child pornography is unlikely to be quickly discarded by a recipient, a seven month delay in obtaining the search warrant was not stale. United States v. Freeman, 2010 U.S. Dist. LEXIS 115074 (D. Minn. May 13, 2010) (R&R), adopted 2010 U.S. Dist. LEXIS 114911 (D. Minn. October 28, 2010)* [This is common in affidavits for CP SWs. I’ve represented two where some of the material was more than ten years old, and one had a collection dating back well before personal computers.]

Defendant who does not stop has no Fourth Amendment claim. Even so, the officer had reasonable suspicion. United States v. Slaughter, 2010 U.S. Dist. LEXIS 114666 (E.D. Mo. October 13, 2010).

The defendant’s computer was sent in by him for repair, and the repair technician saw child pornography on it and reported it. A search warrant was validly issued for the computer and it was limited in scope. United States v. Andrist, 2010 U.S. Dist. LEXIS 114011 (D. Minn. August 19, 2010).*

The court concludes that the officer had probable cause to believe that there was a gun in the car, and the passenger’s motion to suppress is denied [without ever getting to standing]. United States v. Constantine, 2010 U.S. Dist. LEXIS 114059 (D. Minn. August 17, 2010).*

EPIC filed a brief today in the full body scanner at airports lawsuit: In Opening Brief, EPIC Urges Federal Appeals Court to Suspend Airport Body Scanner Program.

See also Should the Law that Protects Against Upskirt Filming Protect Against TSA Body Scanners? and PogoWasRight.org.

The always entertaining Jonathan Turley has Traffic Stop on his blog today.

The Franks claim here fails because, while the affidavit was not perfect, it was good enough. Quibbling over the details where the affidavit was prepared in haste did not show that it was recklessly or intentionally false. United States v. Moreland, 2010 U.S. Dist. LEXIS 114618 (M.D. Ala. October 27, 2010), adopting 2010 U.S. Dist. LEXIS 115091 (M.D. Ala. June 25, 2010) (R&R), summarizing Franks law:

Affidavits supporting search warrants are presumed to be valid. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

To prevail on a motion-based on allegations of falsity in the supporting affidavit-to suppress evidence that was seized pursuant to a search warrant, the defendant has the burden of establishing that (1) the affiant made the alleged misrepresentations or omissions knowingly or recklessly and (2) exclusion of the alleged misrepresentations or inclusion of the alleged omissions would result in a lack of probable cause.

United States v. Fussell, 366 Fed. Appx. 102, 2010 WL 546714 (11th Cir. 2010) (No. 09-11555). See also United States v. Phillips, 323 Fed. Appx. 778, 780 (11th Cir. 2009) (No. 08-11502); United States v. Umansky, 291 Fed. Appx. 227 (11th Cir. 2008). “Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” Franks, 438 U.S. at 171.

If a defendant demonstrates by a preponderance of the evidence that an affidavit used to procure a search warrant contains intentionally or recklessly false statements and that, without the false statements, the affidavit is insufficient to establish probable cause, the court must void the search warrant and exclude the fruits of the search. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). “[A] warrant affidavit violates the Fourth Amendment when it contains omissions “made intentionally or with a reckless disregard for the accuracy of the affidavit.” Madiwale v. Savaiko, 117 F.3d 1321, 1326-27 (11th Cir. 1997) quoting United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). Thus, a defendant must establish (1) that information contained in the affidavit was untrue, (2) that inclusion of the untrue information was either deliberate or in “reckless disregard for the truth,” and (3) that the untrue information was an essential element of the probable cause showing relied upon by the judicial officer in issuing the search warrant. See O’Ferrell v. United States, 253 F.3d 1257, 1267 (11th Cir. 2001).

. . .

The court recognizes, and nobody disputes, that the affidavit is not perfect. However, perfection is neither the standard nor the question; the court is bound by the standards set forth in Franks. Moreland has failed to present any objective evidence demonstrating that statements in the affidavit were false. Rather, he argues that the statements were inaccurate. Furthermore, although Moreland takes issue with the implication that the cooperating source had a history with James, he has failed to show by a preponderance of the evidence that the affidavit used to procure the state search warrant contained intentionally or recklessly false statements. At the time the affidavit was presented, the source was cooperating. Finally, the mere fact that more or different corroboration was available is insufficient to make the requisite showing under Franks that statements in the affidavit were untrue. Consequently, because the court concludes that Moreland has not established that the affidavit in support of the search warrant was based on intentionally or recklessly false information, his motion to suppress the items seized from his residence on Carlisle Street should be denied.

Directing the defendant who got out of his vehicle to get back in was not a seizure and did not violate the Fourth Amendment. United States v. Wolford, 2010 U.S. Dist. LEXIS 114800 (W.D. Pa. October 26, 2010)*:

We find that the rationale underlying the above-listed decisions is equally applicable to our scenario where it was the driver (as opposed to the passenger) that had exited a validly stopped vehicle. The strong public interest in officer safety outweighs Mr. Wolford’s liberty interest, especially since Mr. Wolford had not only exited his van upon being stopped, but was walking away from the police officers at the time he was told to return to his vehicle. As such, we find that Officer Caterino’s order to Mr. Wolford that he get back into his van after he had exited it did not constitute an illegal seizure that violated Mr. Wolford’s Fourth Amendment rights. Moreover, in so holding, we find, contrary to the Defendant’s argument, that the United States Supreme Court’s decision in Arizona v. Gant, supra., is irrelevant to the issue of whether the police officer’s order to Mr. Wolford to re-enter his van violated Mr. Wolford’s right under the Fourth Amendment.

Davis v. United States, 09-11328. Question presented:

In United States v. Leon, 468 U.S. 897 (1984), this Court created a good faith exception to the exclusionary rule of the Fourth Amendment. The Court has expanded the good-faith exception over time, most recently in Herring v. United States, __ U.S. __, 129 S.Ct. 695 (2009). Petitioner asks the Court to resolve a deepening split in the lower courts over whether the good-faith exception applies to changing interpretations of law. The question presented is this:

“Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional.”

SCOTUSBlog here; Cert petition here; Eleventh Circuit’s opinion here.

The officers executing a search warrant came upon papers during execution of a search warrant with website addresses and “lolita” and “boys” along with pictures of nude boys. This was plain view because the warrant was valid. United States v. Clark, 2010 U.S. Dist. LEXIS 115048 (D. Me. October 27, 2010)*:

A defendant bears the burden of proving the illegality of a warrant; if he succeeds, the burden shifts to the government to prove entitlement to the Leon good-faith exception. See, e.g., United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985) (“The general federal rule on who bears the burden of proof with respect to an allegedly illegal search or seizure is based upon the warrant-no warrant dichotomy: If the search or seizure was effected pursuant to a warrant, the defendant bears the burden of proving its illegality; if the police acted without a warrant, the prosecution bears the burden of establishing legality.”); see also, e.g., United States v. Koerth, 312 F.3d 862, 868 (7th Cir. 2002) (“If a defendant is successful in establishing the invalidity of the search warrant, the burden then shifts to the Government to establish that the police relied in good faith on the judge’s decision to accept the affidavit and issue the warrant.”).

Defendant’s 2255 fails on all grounds, including the Fourth Amendment claim, because the defendant did not show that the Fourth Amendment claim could remotely succeed. His factual scenario was contrary to everything already in the record. United States v. Nichols, 2010 U.S. Dist. LEXIS 114949 (D. Kan. October 28, 2010).*

The video of the stop shows that the defendant verbally consented to the search of his vehicle. United States v. Griffith, 2010 U.S. Dist. LEXIS 114960 (D. S.C. October 28, 2010).*

The officer’s request to talk to the defendant was nonthreatening and noncoercive. The fact the defendant was respecting the officer’s wanting to ask questions and not feeling like he should just walk away was enough to make it consent. United States v. House, 2010 U.S. Dist. LEXIS 110740 (D. Utah October 18, 2010):

Although defense counsel argues that Officer Daley made a “show of force” by issuing commands at the defendant, the evidence presented at the hearing does not support this conclusion. In fact, the defendant’s own testimony demonstrates that Officer Daley’s request to speak with him was presented in a non-intrusive, non-aggressive manner. For example, when defense counsel asked the defendant, “Did you feel like you were free to leave at that point and walk away?” the defendant responded, “Well, sure, but I ain’t going to walk away from an officer trying to ask me questions.” (Tr. at 52.) Similarly, when defense counsel attempted to clarify the officer’s alleged “commands” by stating: “So [the officer] asked you to get off the phone? Or he’s making some indication you need to get off the phone?” The defendant responded, “No. He says, can I ask you a few questions. I told him, hold on, because I was talking to somebody at that point.” (Tr. at 52.) There is simply no evidence that Officer Daley used a commanding or threatening manner or tone of voice. Finally, the consensual nature of the encounter is not undermined by Officer Daley’s failure to expressly tell the defendant he was free to leave. See INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984) (“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”); …

Update: This is addressed in my CLE presentation on societal understandings and vehicle stops, next at NORML Key West.

Our societal understanding is that we do not walk off from police officers; we at least show the courtesy of talking to them, and the police exploit that. My point is that the courts must respect that understanding. Otherwise, does this mean that citizens need to exercise their right to be discourteous to avoid the confrontation? As to our societal understandings underlying Katz‘s reasonable expectation of privacy, see, e.g., Minnesota v. Olson, 495 U.S. 91, 100 (1990):

Because respondent’s expectation of privacy in the Bergstrom home was rooted in “understandings that are recognized and permitted by society,” Rakas, supra, at 144, n. 12, it was legitimate, and respondent can claim the protection of the Fourth Amendment.

What is expected of the “reasonable person” v. reasonable police officer?