DUI arrest under Gant and Thornton permits a search incident for alcohol and containers. Officer excluded defendant from his home for ten minutes, and he decided to “get this over with” and gave consent; did not make the search of the home unreasonable. United States v. Grote, 2010 U.S. App. LEXIS 21622 (9th Cir. October 20, 2010) (unpublished).*

A 2255 claim that defense counsel did not call one additional witness at the suppression hearing without showing how that would change the outcome was insufficient. Himmelreich v. United States, 2010 U.S. Dist. LEXIS 111552 (M.D. Pa. October 20, 2010).*

Defendants’ parole search was valid, and their legal objections to the search were all nullified by the parole search. United States v. Starnes, 2010 U.S. Dist. LEXIS 111720 (N.D. Ohio October 20, 2010).*

Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World by Jeffrey Bellin, SMU’s Dedman School of Law. Abstract:

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, while highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine – crime severity.

Nearly everyone agrees that, as an intuitive matter, the “reasonableness” of a search or seizure depends to some degree on the seriousness of the crime being investigated. Yet, current Fourth Amendment doctrine ignores this intuition. As a result, an invasive search of a suspected shoplifter is, legally speaking, no more or less reasonable than the same search of a suspected murderer.

Through the years, the primary objection raised by the Supreme Court and academics to altering this status quo is that a crime severity variable would be unworkable. While a handful of scholars continue to argue for an increased role for crime severity in Fourth Amendment jurisprudence, this powerful objection remains unanswered. In an effort to fill this void in the debate, and introduce crime severity as a critical component of a revitalized search and seizure jurisprudence, this Article proposes a concrete framework for incorporating crime severity into Fourth Amendment doctrine. The Article then explores specific applications of the framework to highlight the constructive role crime severity distinctions can play in defining the constitutional parameters of searches and seizures in the modern era.

FBI’s GPS Tracking Raises Privacy Concerns?, by Mina Kim:

When Yasir Afifi took his car in for an oil change, his mechanic found an unusual wire hanging from below. It was part of a black rectangular device attached to his car by a magnet. After posting photos of it on an online forum, where posters identified it as a GPS tracking device, Afifi, a Santa Clara, Calif., college student and computer salesman, got a visit from FBI agents demanding their equipment back.

The FBI confirms the device belongs to the agency and that agents visited Afifi to get it back. But Special Agent Joseph Schadler won’t say why it was there.

The search warrant for defendant’s computer for child pornography was not stale when the information was only ten months old, considering that CP is commonly kept for a long time. The probable cause here was based on a known CP file with a specific hash value being accessed in Germany from an IP address in the U.S. which was sent by German police to ICE which established that during the relevant time period was associated with defendant. The government also showed in the affidavit that defendant was involved with CP before that. United States v. Hampton, 2010 U.S. Dist. LEXIS 112970 (W.D. Ky. September 10, 2010).*

See Ralph C. Losey, Hash: the New Bates Stamp, 12 J. Tech. L. & Pol’y 1, 12 (2007):

What is hash? As the term is used today in electronic discovery, it is neither a food nor an illegal substance; hash is a mathematical process. To be precise, hash is an encryption algorithm. Hashing generates a unique alphanumeric value to identify the total combination of bits and bytes that make up a particular computer file, group of files, or even an entire hard drive. The unique number of a computer file is its hash value, also known in mathematical parlance as the “condensed representation” or “message digest” of the original message. It is more popularly known today as a “digital fingerprint.”

[This is case is proof that one cannot even access child porn in another country without the U.S. government being able to find out about it.]

Defense counsel was not ineffective for not moving to suppress evidence found in his grandmother’s backyard. While it was curtilage, the drugs were immediately apparent to the officer and seen from off the property. The critical issue, however, is that even if he had guest standing in the house, it does not apply to the backyard. Thomas v. United States, 2010 U.S. Dist. LEXIS 112641 (N.D. Ill. October 22, 2010):

Citing affidavits submitted by a cousin and by his grandmother, Thomas suggests that he was in fact an overnight guest at his grandmother’s house, entitled to claim Fourth Amendment protections as recognized in Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 1688 (1990). If Thomas was in fact an overnight guest, however, he would nevertheless have no reasonable expectation of privacy in the curtilage of the house. See United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (tenant could not assert an expectation of privacy in common areas of an apartment because other tenants used that space and could admit as many guests as they pleased); United States v. Villegas, 495 F.3d 761, 768 (7th Cir. 2007) (no legitimate expectation of privacy in the common hallway of a duplex in which defendant resided). While the need for a guest’s privacy is reasonable, the expectation of privacy does not extend to those areas of the house-the backyard, for example-in which the guest’s privacy would not likely be respected. See Olson, 495 U.S. at 99, 110 S. Ct. at 1689.

The CI did not personally appear before the issuing judge, but that is only a single factor in finding probable cause. The CI was otherwise corroborated. Also, the good faith exception applied. United States v. Hester, 2010 U.S. Dist. LEXIS 112670 (N.D. Ill. October 22, 2010).*

En Banc 3rd Circuit Set to Hear DNA Samples Case by Shannon P. Duffy in The Legal Intelligencer, today.

When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal that is now set to be argued before all 14 judges on the 3rd U.S. Circuit Court of Appeals.

At issue in United States v. Mitchell is perhaps one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant or wait for a conviction before taking a genetic sample.

The Justice Department’s appeal in Mitchell was initially argued before a three-judge panel in April. But the court last week took the rare step of slating the case for en banc reargument without releasing a decision from the three judges.

“Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret”–-Parts 1, 2, 3, all linked here.

Given the current surveillance state situation in America, the Keith case, formally known as United States v. U.S. District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me–this is going to take awhile, and will be laid out over a series of four posts.

This case is referred to by lawyers as the “Keith” case because Keith was the real party in interest.

From Truckinginfo.com, Owner-Operator Group Challenges EOBR Rule, partly on Fourth Amendment grounds of government surveillance of realtime movements of big trucks:

The Owner-Operator Independent Drivers Association filed a petition seeking review of the final rule mandating electronic on-board recorders for motor carriers with chronic noncompliance with hours-of-service regulations.

The Federal Motor Carrier Safety Administration earlier this year issued a final rule, which will go into effect June 1, 2012, requiring carriers that violate hours of service rules 10 percent of the time, based on single compliance review, to use electronic onboard recorders to track driver hours.

The association’s core argument against mandating “black boxes” is that there is no proof the devices can accurately and automatically record a driver’s hours of service and duty status. An EOBR can only track the movement and location of a truck; it requires human interaction to record any change of duty status.

. . .

Another argument against the use of the electronic on-board tracking devices centers on the Fourth Amendment.

“The real-time, government mandated, 24-hour electronic surveillance of a driver’s location and movements contemplated by the (notice of proposed rulemaking) is an unjustified and dangerous intrusion on drivers’ right of privacy,” the brief states.

The constitutional argument states that the constant monitoring constitutes a search of the driver within the meaning of the Fourth Amendment.

Consent was obtained after the officers threatened to get a search warrant, but the threat was not baseless. So, the consent was valid. United States v. Bigi, 2010 U.S. Dist. LEXIS 105954 (S.D. Ohio September 22, 2010)*:

The Sixth Circuit has repeatedly held that an officer’s threat to obtain a warrant if the defendant does not consent to the search does not taint the defendant’s subsequent consent to a search, unless the threat is baseless. See United States v. Salvo, 133 F.3d 943, 954 (6th Cir. 1998) (citing a number of cases from other circuits); United States v. Blanco, 844 F.2d 344, 351 (6th Cir.), cert. denied, 486 U.S. 1046 (1988); United States v. Watson, No. 96-5037, 1997 U.S. App. LEXIS 17186 (6th Cir.), cert. denied, 522 U.S. 961 (1997) (“Notifying a person that a warrant can be obtained does not render consent involuntary unless the threat to obtain the warrant is baseless.”).

Defense counsel could not be ineffective for not moving to suppress a plain view during the execution of an otherwise valid search warrant. Crawford v. United States, 2010 U.S. Dist. LEXIS 106172 (E.D. Pa. October 4, 2010).*

Defendant was stopped for a traffic offense, and the officer decided to call for a drug dog which arrived before the ticket was even filled out. Therefore, defendant was not detained unreasonably by the use of the drug dog. United States v. Aguando-Garcia, 2010 U.S. Dist. LEXIS 106042 (S.D. Ohio September 27, 2010).*

“Indicia warrant” for “venue evidence” to show defendant’s connection to premises was broad but not overbroad. Under Eighth Circuit precedent, the search did not violate the Fourth Amendment. United States v. Darr, 2010 U.S. Dist. LEXIS 111623 (E.D. Mo. October 20, 2010):

“A warrant authorizing officers to seize anything related to indicia of occupancy is quite broad.” [United States v. Romo-Corrales, 592 F.3d 915, 920 (8th Cir. 2010)] (quoting United States v. Timley, 443 F.3d 615, 623 (8th Cir. 2006)). Thus, in Romo-Corrales, the court held that a warrant authorizing a search for “venue evidence” (i.e., mail, bills, receipts or other indicia of a suspect’s connection to a residence) permitted officers to search “the laundry hamper, garage, cooler, behind a mirror or picture, behind a dresser, and underneath the bed,” because these were areas where such evidence could be located. Id. Likewise, in this case, the search warrant authorized the police to search closed containers in the defendant’s room, as these were areas in which the items listed in the warrant could have been concealed.

While searching the defendant’s bedroom, the police found digital images of child pornography and small boy’s underwear inside a VCR container. The seizure of these items did not violate the Fourth Amendment, as they were found during the course of a lawful search and their incriminating character was immediately apparent. See United States v. Alexander, 574 F.3d 484, 490-91 (8th Cir. 2009) (under plain view exception to warrant requirement, police lawfully seized evidence of child pornography found during execution of search warrant for evidence of crime of invasion of privacy).

So, in the Eighth Circuit, my home circuit, this means that “indicia warrant” for “venue evidence” can be used as a legal pretext to search virtually anywhere for evidence: a laundry hamper, VCR container? Result oriented jurisprudence at its worst.

A request for consent to search at the same time the officer handed back defendant’s DL and registration papers did not mean that the stop was continued for the request for consent. State v. Eatmon, 2010 Ohio 5092, 2010 Ohio App. LEXIS 4287 (5th Dist. October 18, 2010)*:

[*P38] While the officer goes on to testify that standard operating procedure is to issue the warning and tell the person that he or she is free to leave before requesting consent to search, in the instant case appellant was not free to leave after she issued the warning because she had not yet returned his license and registration. While she could not remember whether she returned these items before or after the search of the vehicle, the request to search was contemporaneous with the return of appellant’s license and registration, and the officer therefore had not completed the traffic stop at the time consent was received for the search. Appellant was not unlawfully detained at the time he gave consent to search.

Defendant’s nervous behavior and furtive movements in the car of him and the occupants was reasonable suspicion. State v. Agee, 2010 Ohio 5074, 2010 Ohio App. LEXIS 4267 (8th Dist. October 14, 2010).*

The entry into a third party’s home for an arrest violated Payton and Steagald. The defendant was hiding out and moving around, but the officers had no real evidence that he was staying where he was found. State v. Mansaray, 2010 Ohio 5119, 2010 Ohio App. LEXIS 4307 (8th Dist. October 21, 2010):

[*P18] Thus, pursuant to the above case law, when the police execute an arrest warrant, they can only enter a residence of a third party without a search warrant if they have a reasonable belief that the person named in the warrant lives at the residence and is in fact home. In the instant case, the evidence does not show that the [U.S.] marshals had a reasonable belief that Williams lived with Mansaray. …

[*P20] He also stated that: “[W]illiams knew we were looking for him and he was moving every couple of hours ***.” Tr. 159. This information did not provide evidence to support a reasonable belief that Williams lived at Mansaray’s house. The confidential informants did not state that Williams lived with Mansaray, just that he “would be with Mansaray.” While the tracking of Mansaray’s cell phone indicated that it was being used in the vicinity of Mansaray’s home, this would be expected because although Williams was using the phone, it was still Mansaray’s phone. There was no indication that Williams was exclusively using the phone. While the officers may have had a reasonable belief Williams was in the home, the evidence does not establish that they had a reasonable belief that Williams lived at the home. Therefore, to enter Mansaray’s residence, in addition to the arrest warrant, they needed to present a search warrant.

Refusal to consent here was considered by the officer a factor in reasonable suspicion, and this makes it unreasonable because the other factors failed, too. United States v. Jackson, 2010 U.S. Dist. LEXIS 110898 (W.D. Tex. October 13, 2010):

Refusal to consent to a search does not provide reasonable suspicion to justify a stop or continued detention. United States v. Machuca-Barrera, 261 F.3d 425, 435 n.32 (5th Cir. 2001) (citing United States v. Hunnicutt, 135 F.3d 1345, 1350-51 (10th Cir. 1998) (“[I]t would make a mockery of the reasonable suspicion and probable cause requirements … if citizens’ insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary.”)); see also Karnes v. Skrutski, 62 F.3d 485, 495 (3d Cir. 1995) (holding that refusal to consent to search “cannot support a finding of reasonable suspicion”); United States v. Gordon, 917 F. Supp. 485 (W.D. Tex. 1996) (holding officers lacked reasonable suspicion to continue to detain the defendant’s vehicle following the defendant’s refusal to consent to search his vehicle and that the defendant’s refusal to consent to a search of his vehicle could not be turned, by the officers, into a basis for the necessary level of reasonable articulable suspicion).

Furthermore, at one point Trooper Allick told Defendant that he respected Defendant’s Fourth Amendment rights. Video at 16:50. However, one cannot respect another’s Fourth Amendment rights and simultaneously punish that same person for exercising them. Had the other reasons Trooper Allick claimed after the fact been the true basis for any suspicion he may have had, he would have cited those reasons when explaining the situation during the stop on April 14, 2010. Instead, he referred only to Defendant’s exercise of his Fourth Amendment right to refuse consent, and he did so on six different occasions. Accordingly, this Court finds those later-mentioned reasons suspect.

. . .

In light of the totality of the circumstances and the evidence before it, the Court holds that Trooper Allick lacked an articulable factual basis to suspect wrongdoing. His continued detention of Defendant therefore violated Defendant’s Fourth Amendment rights.

Note: The court here discounted nervousness based on the video of the stop.

Defendant had “standing” to challenge a search of his person, and it is irrelevant to standing that he denies ownership of a gun found on his person. United States v. Morgan, 2010 U.S. Dist. LEXIS 111120 (E.D. N.Y. June 22, 2010):

Moreover, a defendant is not required to have an expectation of privacy in the evidence seized in a search. Here, Morgan challenges the stop of his person and may seek to suppress the evidentiary fruits of that seizure under the “fruit of the poisonous tree” doctrine regardless of whether he would otherwise have standing to challenge the seizure of the gun itself. … The defendant need only assert that his Fourth Amendment rights were violated with regard to the poisonous tree, here the stop, and not separately regarding the evidence which constitutes the fruit of that poisonous tree, the gun.

Defendant’s wife consented to search for a computer in the house. She asked if she could look for it, and they said no, they would have to, and what would happen if she refused, and they said they would get a warrant. She consented to the entry, and she also had apparent authority to consent. While she did not have a key to the room entered, she, like her husband, entered the room with a knife or screwdriver, and she had equal access to that room. United States v. McManaman, 2010 U.S. Dist. LEXIS 110855 (N.D. Iowa October 18, 2010).*

A mechanic working on a car that belonged to a California student with a Middle Eastern name found a GPS device planted on his car and gave it to him. The FBI came calling as a result: On ABAJ.com: Student’s Discovery of GPS Tracking Device Brings Visits by FBI, ACLU, a story via Wired.com:

A California student was visited first by the FBI and then by the American Civil Liberties Union after reports surfaced that his mechanic had found a GPS tracking device on his car.

After Yasir Afifi discovered the device, a friend posted photos online, prompting “wide speculation about whether the device was real, whether the young Arab-American was being targeted in a terrorism investigation and what the authorities would do,” Wired.com reports on its blog Threat Level. The 20-year-old Arab-American student at Mission College in Santa Clara soon found out, the story says.

Afifi told Wired that FBI agents and police officers came to his apartment and demanded the return of the device. One agent reportedly told Afifi they knew what restaurants he frequented and congratulated him on his new job. Officers also asked about Afifi’s acquaintances and showed him a blog post written by his friend that had “something to do with a mall or a bomb,” Afifi said; the friend later said it was just something stupid he wrote.

See also The Green Room.

Defendant who admittedly only carried a duffle bag into an apartment and expected to stay only 20-45 minutes, where he did not live, would not stay, and had no key or belongings there, had no standing to contest a search of the premises. United States v. Mitchell, 2010 U.S. Dist. LEXIS 105594 (M.D. Pa. October 4, 2010).*

Officers had probable cause to believe that the defendant’s truck to which 200 lbs of marijuana had been transferred had evidence of crime, so Gant did not apply. United States v. Micali, 2010 U.S. Dist. LEXIS 105386 (E.D. N.Y. September 29, 2010).*

Defendant was sleeping like a homeless man in a private parking garage. When he was rousted and fled, he left some stuff including a laptop computer, anti-Israeli literature (similar comments were on his Facebook page), and bottle that was capable of being a small bomb based on its contents. A search warrant was issued for the computer [aside from the abandonment issue which isn’t discussed], and the court concludes the search warrant for evidence of terrorist activities is specific enough. His claim that he was entitled to possess the anti-Israeli literature under the First Amendment was not at all determinative of the outcome. Moreover, the showing of PC was close enough that the good faith exception would apply. United States v. McNamara-Harvey, 2010 U.S. Dist. LEXIS 106141 (E.D. Pa. October 5, 2010).*

An escapee has no greater rights than he had in his prison cell or as a parolee. He essentially has no subjective reasonable expectation of privacy that anyone would recognize anywhere he is found. United States v. Cartwright, 2010 U.S. Dist. LEXIS 106473 (N.D. Okla. October 5, 2010):

The question now before the Court is where to place Cartwright on the continuum of punishment between a convict in his cell and a probationer. The Court finds that there should be no functional difference between Cartwright and the prisoner in Hudson, as a prisoner may not alter the terms of his imprisonment by means of escape. Although the question is one of first impression in this jurisdiction, other circuits have held that one who effects his own escape does not gain the benefit of additional constitutional protections.

Citing, inter alia, United States v. Roy, 734 F.2d 108 (2d Cir. 1984), and United States v. Ward, 561 F.3d 414 (5th Cir. 2009). To my knowledge, no case holds to the contrary.

The use of deadly force instead of spike strips to stop the defendant who had run a roadblock and was trying to outrun the police did not make the search of him and his car when he was finally stopped unreasonable. The defendant fled and was driving erratically, and the use of force here was reasonable under the circumstances. United States v. Ramos, 2010 U.S. Dist. LEXIS 107292 (S.D. Cal. October 6, 2010):

The Court must determine whether the agents reasonably believed that the force used was necessary in order to protect themselves based upon the totality of the circumstances. “To assess the reasonableness of th[e] conduct, [a court] must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion paying careful attention to the facts and circumstances of each particular case.” Guzman-Padilla, 573 F.3d at 886 (citations and quotations omitted). After the full presentation of evidence, the Court concludes that the interest of the government agents in protecting their safety was very strong in this case based upon the imminent and serious danger posed by the actions of the Defendant. The agents lawfully attempted to stop the vehicle based upon reasonable suspicion that the Defendant was engaged in criminal activity. Defendant refused to stop his vehicle and began a high speed encounter with border patrol. Defendant used dangerous means to attempt to avoid apprehension over a lengthy period of time. Defendant traveled over twenty miles in the dark on Interstate 8 at over one hundred miles per hour, weaving in and out of traffic posing a serious danger to the public.

Officers arrested people outside the house, and one of those detained was a neighbor “literally at the wrong place and the wrong time.” After a security sweep, she was released and went back to her house. The premises were secured, and a search warrant was sought. She became a witness for the defense on the search issue, observing from her own place. The court found her testimony embellished because of the way she complained about her treatment when the police made the arrest. The warrant was valid, as was the search. United States v. Denson, 2010 U.S. Dist. LEXIS 107374 (W.D. Pa. October 7, 2010).*

The state did not raise standing in the trial court, so it cannot raise it for the first time on appeal. Nevertheless, defendant has a “participatory interest” in the area where the drugs were found in the car, so he can challenge the search, which is found illegal, and they both win. State v. Minitee, 2010 N.J. Super. LEXIS 200 (August 16, 2010):

In short, from this record, we discern no reason that justifies the State’s failure to raise this threshold question in a timely fashion before the trial court. We will nevertheless address it because we are satisfied that Bland has the requisite “participatory” interest in the motor vehicle and the property seized to confer him with the standing necessary to challenge the State’s warrantless search.

Under our state constitution, “a criminal defendant has standing to move to suppress evidence from a claimed unreasonable search or seizure ‘if he has a proprietary, possessory or participatory interest in either the place searched or the property seized.'” State v. Johnson, 193 N.J. 528, 541 (2008) (quoting Alston, supra, 88 N.J. at 288). In State v. Mollica, 114 N.J. 329, 339-40 (1989), the Court recognized the defendant’s “participatory interest” in property that was not owned by the defendant. Armed with a search warrant, the police searched the defendant’s hotel room. Id. at 334. The search warrant was based on information obtained from a codefendant’s telephone records documenting illegal gambling activities. Ibid. Because these records were generated by the defendant’s criminal gambling activities, the Court held that the defendant had standing to challenge how they were seized. Id. at 335.

Here, Bland’s participatory interest in the red SUV registered to Minitee stems from his occupancy of the vehicle at the time Officer Lorenzo first stopped it. His occupancy gave him dominion and use of the area in and around the vehicle where the police subsequently found the incriminatory evidence. This participatory interest continued, unabated, to that point in time when the police seized the vehicle and arrested Minitee and her codefendant.

In my state, the appellate courts apply procedural default in extremis against the defendant, but seldom, if ever, against the state. I had a case 12 years ago where the state never raised standing in the trial court, but the state raised it in its appellee’s brief, and I argued waiver from Steagald v. United States, which is the first issue in that famous case extending Payton to third party premises. The Arkansas Court of Appeals, however, as it is wont to do, just ignored me because that would mean that a defendant might win a search and seizure case, and they just couldn’t have such a state of affairs. Richard v. State, 64 Ark. App. 177, 983 S.W.2d 438 (1998) (it was his aunt’s house, and he could come and go as he pleased like he lived there). When they seem to delight in defaulting defense counsel, how come they seem to have so much trouble doing it to the state? Double standard?

Officers went to defendant’s property and mobile home to do a knock-and-talk about cocaine trafficking. In the driveway were two vehicles with out of state license plates, and nobody answered a knock at the front door. Officers went to the back door, which was not blocked by any fencing, in case those inside could not hear the knocking. They saw a 30 ton hydraulic press that is commonly used to compress cocaine for shipment. That was a valid plain view, and curtilage was not unreasonably violated by trying the back door. United States v. Gonzalez, 2010 U.S. Dist. LEXIS 106448 (S.D. Iowa June 4, 2010)*:

The Court finds that there was a sufficient indication that someone might be home for a police officer to knock at an alternate entrance. The presence of several cars at the residence made it reasonably likely for a police officer to believe that someone was home. Raines, 243 F.3d at 420. Because of Special Agent Stepleton’s stated familiarity with the layout of single-wide trailers, it was entirely reasonable for the agents to try an alternate entrance once no one answered at the front door. They also left the curtilage area after no one answered the back door. With an investigatory purpose in mind and cars at the residence, the Court finds that it was a reasonable and “limited intrusion” for the agents to knock at the back door of the residence. Anderson, 552 F.2d at 1298. Once the agents discovered that no one was home, the agents did not remain in the backyard. It is reasonable for an officer to initially enter a backyard to determine if a defendant is home. Estate of Smith, 430 F.3d at 157. Accordingly, the government has met its burden to show that the agents were in a place where they had the right to be when they discovered the 30 ton hydraulic press.

So, just how easy is it for the police to make up the circumstances to go to the back door and claim it was reasonable?