Defendant stayed at his wife’s place, but he was not on the lease. His wife had the authority to consent. He did not clearly object to the search. And, even if his statement to his wife was an objection to consent arguably valid under Randolph, there was plenty of probable cause, and the police could have gotten a search warrant, and that means that a search warrant would have issued if sought. Therefore, the motion to suppress was properly denied. State v. Lampkin, 2010 Ohio 4934, 2010 Ohio App. LEXIS 4174 (6th Dist. October 8, 2010):

[*P75] In this case, evidence was presented at the suppression hearing that appellant’s wife and three children were the only residents listed on the application and approved to occupy the government subsidized home where the mask was found. Therefore, appellant was neither on the lease nor listed as a resident. As a result, his wife would have had the authority to give consent to the search, regardless of appellant’s objections. Moreover, the detective testified that appellant repeatedly stated to his wife, it’s “your home” and “you don’t have to let them search.” These statements indicate that appellant did not view the home as his own, even though he may have been staying there.

[*P76] Even presuming, arguendo, that appellant was living with his wife and did have authority as a co-tenant, we conclude that the evidence was still admissible. Appellant was physically present at the residence and his comments could be construed as an objection to the search consented to by his wife. Thus, under Georgia v. Randolph, supra, it is arguable that his Fourth Amendment rights were violated by the subsequent warrantless search and seizure of the mask from the bedroom. Nevertheless, prior to the search, appellant had been identified as one of the assailants by the victim and was placed under arrest shortly after the police entered the home. Since the police had probable cause and could have gotten a warrant and conducted the search of the home without appellant’s consent, the evidence was admissible under the inevitable discovery doctrine. Therefore, appellant’s motion to suppress the mask and its wrapper was properly denied.

The first fire scene search of defendant’s house by Army CID was a continuation of the fire department’s entry under Tyler. The second, days later, was with a dog to sniff for accelerants and was by consent of defendant’s wife (after the fact without her knowing of a probably illegal entry). It was not a continuation of the first entry under Clifford, but defendant’s wife did not know of that entry when she consented. An examination of the exterior of defendant’s car outside was reasonable. United States v. Smallwood, 2010 U.S. Dist. LEXIS 108762 (W.D. Ky. October 12, 2010).*

A court released defendant from supervision, but the Ohio Parole Authority disagreed that a court could. Subsequently, a parole search occurred, and it was still valid as far as the OPA was concerned. United States v. Starnes, 2010 U.S. Dist. LEXIS 109004 (N.D. Ohio October 13, 2010).*

Under U.S. v. Padilla, defendant had no standing to challenge the constitutionality of the arrest of his co-defendant. United States v. Smith, 2010 U.S. Dist. LEXIS 108775 (W.D. Tenn. October 12, 2010).*

Defendant was the subject of a Miranda violation and his statement is suppressed, but his consent is independent of that and it was voluntary. “[E]ven if the Defendant were illegally detained, the subsequent consent served to purge the taint of the illegal action.” United States v. Rakotojoelinandrasana, 2010 U.S. Dist. LEXIS 109139 (D. Minn. August 2, 2010) (also, in fn. 2, judicial notice taken of Google Maps), adopted 2010 U.S. Dist. LEXIS 109241 (D. Minn. October 13, 2010).

The package in a controlled delivery made it to defendant’s car, and a warrant was unnecessary to search the car for it. United States v. Trevino, 2010 U.S. Dist. LEXIS 109093 (M.D. Fla. September 23, 2010).*

Defendant was not free to leave. (“See [Exhibit 1 at 3:59:03 a.m. through 3:59:05 a.m. (In response to the Defendant’s asking if he could leave, Walker replied, ‘No. You move off that car and you are going to have a bad day.’)]. The question for the Court’s resolution is whether the seizure of the Defendant was unreasonable.”) Based on the facts, the officer had reasonable suspicion that the vehicle was involved in a robbery. And, “handcuffing a suspect does not ‘exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution.’” United States v. Nance, 2010 U.S. Dist. LEXIS 108781 (E.D. Tenn. September 17, 2010).*

Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World by Jeffrey Bellin of SMU Dedman School of Law on SSRN. The 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.

Hat tip CrimProf Blog.

Pilot Refuses Full Body Scan, Says He’s Fighting for Rights | Michael Roberts Could Lose Job for Refusing to Go Through Scan, Pat Down: ‘It’s an Outrage’, by Lee Ferran and Jim Vojtech.

The Rutherford Institute has gotten involved.

In the Detroit Free Press: Lawyers argue over secret taping of Jabalee brothers at gravesite:

Ryan Jabalee was heard crying or sobbing on a recording device set up by law enforcement at the gravesite of his murdered parents, Ronald and Christine Jabalee, in 2007.

His brother, Ronald Jabalee Jr. — who is standing trial today in Macomb County Circuit Court in the October 2006 slayings — did not sound distraught.

In opening statements, the prosecution painted Ronald as an uncaring son. The recording, if admitted, could support their claim.

Defense attorney Stephen Rabaut said the device was installed without a warrant and that the Fourth Amendment goes beyond telephone calls and includes invasion of privacy.

“It’s eavesdropping,” he said, adding that Michigan has a law about eavesdropping.

Assistant Prosecutor Steven Kaplan disagreed, saying “there’s no privacy in public.”

Could they eavesdrop in a public place with a parabolic microphone a la “The Conversation”, or should a warrant be required? Is a graveside a “public place”? Is our society expectation that we will not be overhead alone at a graveside?

See Simple Justice Blog.

Because defendant’s house was so far from the road that reasonable suspicion was required, but officers had reasonable suspicion to conduct a knock and talk and enter his property which was a long way from the roadway. United States v. Ardoin, 2010 U.S. Dist. LEXIS 109806 (M.D. La. October 14, 2010):

Though the roadway is not a curtilage, and is therefore not subject to the heightened standards applicable to homes, the officers still must have had a reasonable suspicion upon which to approach Ardoin’s home to conduct a “knock and talk” investigation. If the officer has a reasonable suspicion of criminal activity, the officer may approach an individual’s home, knock on the door, and talk to the home’s occupants, and the Fourth Amendment is not implicated because no search or seizure occurs. United States v. Walters, 529 F. Supp. 2d 628, 636 (E.D. Tex. 2007). Reasonable suspicion sufficient to validate a “knock and talk” investigation may be based upon complaints or tips that an individual’s home is being used for drug activity. Jones, 239 F.3d at 718, 720.

(Note: Cases seldom hold that reasonable suspicion is required for a knock and talk. Here, an entry onto the curtilage was also an issue, so it was disposed of with reasonable suspicion.)

On the totality of circumstances, defendant’s PO had reasonable suspicion of a parole violation and that evidence would be found at his house, so that justified the parole search. United States v. Chatman, 2010 U.S. Dist. LEXIS 109881 (E.D. Pa. October 15, 2010).*

The defendant was the target of a search warrant for counterfeit evidence, and the government showed a “fair probability” that evidence would be found and a nexus to defendant’s place. For example, finding a flash drive on his person at the time of arrest meant that there was a likelihood there was a computer involved. Reference to defendant’s criminal history in the affidavit for similar crimes was not impermissible. United States v. Nance, 2010 U.S. Dist. LEXIS 110081 (W.D. Pa. October 18, 2010).*

Defendant did not show standing or a reasonable expectation of privacy in the place searched where he was a social guest; while he was a social guest, he had left the place and could not get back in when he was stopped on the porch. He had no key. He showed no standing in the home or the porch. United States v. Banister, 2010 U.S. Dist. LEXIS 110144 (D. Neb. October 15, 2010).*

Defendant’s 2255 for, inter alia, defense counsel’s failure to file a motion to suppress against a clearly lawful search incident was not IAC. Pariag v. United States, 2010 U.S. Dist. LEXIS 110104 (D. Md. October 14, 2010).*

SCOTUS cert grant in Ashcroft v. al-Kidd, 10-98 (Kagan, J., recused). ScotusBlog here and here.

Questions presented:

Respondent was arrested on a material witness warrant issued by a federal magistrate judge under 18 U.S.C. 3144 in connection with a pending prosecution. He later filed a Bivens action against petitioner, the former Attorney General of the United States, seeking damages for his arrest. Respondent alleged that his arrest resulted from a policy implemented by the former Attorney General of using the material witness statute as a “pretext” to investigate and preventively detain terrorism suspects. In addition, respondent alleged that the affidavit submitted in support of the warrant for his arrest contained false statements.

The questions presented are:

1. Whether the court of appeals erred in denying petitioner absolute immunity from the pretext claim.

2. Whether the court of appeals erred in denying petitioner qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of respondent’s arrest.

The underage defendant was on his porch drinking a beer, and a plainclothes detective saw him and pulled out his badge from under his shirt on a badge chain so it could be seen and came onto the porch. This was not a Fourth Amendment violation because it was in a public place that could be seen from the street. State v. Swonger, 2010 Ohio 4995, 2010 Ohio App. LEXIS 4208 (10th Dist. October 14, 2010).*

Defendant was involved in a traffic stop, and his DL was suspended. The officers searched his person and relieved him of $2,500. While the stop was valid, defendant was entitled to return of the money, and the City showed no reason to keep it. City of Cleveland v. Wells, 2010 Ohio 5014, 2010 Ohio App. LEXIS 4218 (8th Dist. October 14, 2010)*:

The State may not deprive an individual of his property without due process of law. State v. Lilliock (1982), 70 Ohio St.2d 23, 28, 434 N.E.2d 723; Cleveland v. Fulton, 178 Ohio App.3d 451, 2008 Ohio 4702, 898 N.E.2d 983, P47. Insofar as the Sheriff took the money pursuant to this arrest, but provided the trial court with no evidence that the money was legally being held elsewhere, we hold that the municipal court erred in denying Wells’s motion for return of the money seized from him when he was arrested.

The officer here responded to a 911 domestic disturbance call involving a name the officer recognized as a troublemaker (for want of a better way to put it), and the officer arrived and saw him on an apartment building parking lot. The officer approached him and touched his arm, and he pulled away and a struggle ensued. Defendant was handcuffed. There was reasonable suspicion for the initial contact, and the defendant’s resistance ripened it into a valid arrest. United States v. Nelson, 2010 U.S. Dist. LEXIS 109244 (D. V.I. October 13, 2010).*

NYPD officers in the housing unit on routine patrol saw defendant sitting on a bench outside an apartment building, and they approached him and could smell he was smoking crack. Defendant broke and ran for the building. He was not seized until he was caught. United States v. Kinred, 2010 U.S. Dist. LEXIS 109516 (E.D. N.Y. May 18, 2010).*

By the time the officer asked defendant for and got consent for a dog sniff to search the car defendant was driving, he had reasonable suspicion. A dog was brought in for an alert first, and then the car was searched. The court did not address the problematic issue of defendant’s consent. He did not even know who owned the car he was driving, and the paperwork was no help. United States v. Hearns, 2010 U.S. Dist. LEXIS 109242 (D. S.C. October 13, 2010).*

Officers came to defendant’s hotel room at night and pounded on the door for entry. After 30 seconds of repeated requests, defendant said his wife was naked, and they told her to hurry and get dressed so they could come in. After they entered, the officers misrepresented their purpose to look around. They had an audio of the interchange. The search was not by valid consent and was coerced, and the motion to suppress was granted. United States v. Quintero, 2010 U.S. Dist. LEXIS 98834 (D. N.D. September 8, 2010)*:

The Court is mindful that nighttime searches are not per se unconstitutional. United States v. Harris, 324 F.3d 602, 606 (8th Cir. 2003); United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997). However, search warrants command the officer to execute a warrant during the daytime, unless the judge for good cause expressly authorizes otherwise. Fed. R. Crim. P. 41(e). Daytime is defined as the hours from 6 a.m. to 10 p.m. Id. Here, the officers rousted two people out of bed at night, without probable cause or a showing of good cause as to why they could not have acted earlier in the day. They then pressured and interrogated the Quinteros to consent to a search at a time of the night that would not be permitted if the officers had obtained a warrant. Indeed, it is a rare case in which law enforcement officers ought to be given more latitude to act when they do not have probable cause or exigent circumstances than the law allows when they do have probable cause or exigent circumstances exist. Also, particularly troubling is the lack of any explanation as to why the officers waited for over five hours before they began their investigation at the hotel.

Moreover, it is clear the officers’ conduct intimidated Michelle. Six people were standing outside the door. Before the entry, Agent Weber pressured Michelle; he commanded her to get dressed, he directed her to hurry up, and then he told her after she got dressed they were going to come into the room to talk to her. Michelle told Agent Weber on three separate occasions that the officers were scaring her. Yet, Agent Weber continued on with the same force and pressure.

Once inside the room, Agent Weber purposefully misrepresented his intentions with regard to the search. He asked Michelle if the officers could “look around” or take “a quick peek around”, knowing he intended to do more than just look around. Agent Weber testified he intended to thoroughly search the room along with the Quinteros’ belongings. He also knew the only way he could search the room was to convince Michelle to consent.

It took several minutes of pressure by law enforcement officers to get Michelle to give the officers permission to look around. The recording makes clear that Michelle’s responses were ambivalent and made with hesitation and reservation. Michelle was clearly nervous and scared and under pressure. The audio recording also makes clear that the officers did not give Michelle a choice to consent to a search. Consent obtained by duress or coercion is not voluntary consent. Lakoskey, 462 F.3d at 973.

After considering and weighing all of the evidence, particularly the unexplained delay in arriving at the hotel, the time of night of the encounter, the number of officers involved, the pressure the officers put on Michelle, the coercive environment created by the officers, and the expressions of fear by Michelle, the Court finds the United States has not proven by a preponderance of the evidence that Michelle voluntarily consented to a search of the hotel room.

Remember this post from December on police body cams?

An important news story on sneak-and-peak warrants: Federal investigators used delayed-notice search warrant to help crack Greater Cleveland heroin ring by James Ewinger in The Cleveland Plain Dealer:

A little-known federal law that allows investigators to carry out a search warrant without the suspect’s knowledge contributed to the smashing of a major heroin ring in the area last week.

The tool was put in place as part of anti-terrorism laws passed by Congress after the 9/11 attacks on American soil. The implement was rarely employed in its first years, but records show investigators nationally are increasingly pulling it from their belts.

Some in the legal profession are jittery that the law can be abused and question whether federal judges should allow these warrants for offenses other than suspected terrorism.

The delayed-notice search warrant is designed to keep suspects from knowing they are under surveillance. In this case, investigators used the warrant to go through a suspected drug dealer’s apartment in Cleveland last April. They took more than a pound of heroin and two guns, then trashed the place to make it look like a burglary.

Give the government an inch, it takes a mile. The delayed notice provision of § 213 the USA Patriot Act, 18 U.S.C. § 3103a, was written into Rule 41(f)(3):

(3) Delayed Notice. Upon the government’s request, a magistrate judge—or if authorized by Rule 41(b), a judge of a state court of record—may delay any notice required by this rule if the delay is authorized by statute.

The FBI wrote about them here, EFF here, and a Georgia law professor wrote about them here.

This is an important story that hopefully AP will pick up and reproduce nationwide so the public knows about the abuse of sneak-and-peak. Regrettably, SCOTUS never made immediate notice of a search a Fourth Amendment requirement. See Dalia v. United States, 441 U.S. 238, 247-48 (1979):

Moreover, we find no basis for a constitutional rule proscribing all covert entries. It is well established that law officers constitutionally may break and enter to execute a search warrant where such entry is the only means by which the warrant effectively may be executed. See, e.g., Payne v. United States, 508 F.2d 1391, 1394 (CA5 1975); cf. Ker v. California, 374 U.S. 23, 28, 38 (1963); 18 U.S.C. § 3109. Petitioner nonetheless argues that covert entries are unconstitutional for their lack of notice. This argument is frivolous, as was indicated in Katz v. United States, 389 U.S. 347, 355 n. 16 (1967), where the Court stated that “officers need not 248*248 announce their purpose before conducting an otherwise [duly] authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence.” In United States v. Donovan, 429 U.S. 413, 429 n. 19 (1977), we held that Title III provided a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance. See 18 U.S.C. § 2518(8)(d). There is no reason why the same notice is not equally sufficient with respect to electronic surveillances requiring covert entry. We make explicit, therefore, what has long been implicit in our decisions dealing with this subject: The Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment.

Warrantless entry into defendant’s car at the scene of a three vehicle accident, when she was being attended to by paramedics to see if she was alright, was not legally sustainable entry under the community caretaking function because she was still there and conversing with EMTs. The officer never asked for consent to look for the papers; he just went into the car. State v. Garrison, 2010 Iowa App. LEXIS 1075 (September 22, 2010):

On his arrival, Bender spoke to Garrison, who was coherent enough to tell him she was experiencing some pain and was mobile enough to walk to a nearby ambulance when directed to do so. Bender did not ask her for her license or registration information at that or any other time, nor did he obtain her consent to search the vehicle. Instead, he told Officer Jensen to gather the registration information, which he said he needed. Bender stated that his sole purpose for having Garrison’s vehicle searched was to obtain her license and registration information “for [his] report.” He said, “I was to the point in my investigation where I needed those items to finish my investigation.”

Jensen testified that his instructions from Bender were specific; Bender told him he “was with one of the patients in the ambulance and asked [him] to go in one of the vehicles and look for the registration and insurance for the vehicle.” The vehicle he was to enter was Garrison’s, as Bender had already obtained license, registration, and insurance information from the drivers of the other vehicles. Jensen proceeded to implement these instructions. He acknowledged he did not first ask Garrison for the license and registration information or obtain her consent to enter the vehicle.

Based on these facts, we are convinced the officers were not engaged in a “bona fide community caretaker activity” when they searched Garrison’s vehicle.

Defense counsel was not ineffective for not challenging defendant’s car search under Gant when it was clearly a valid automobile exception search because the officer could smell marijuana during the stop. State v. Maughmer, 2010 Ohio 4425, 2010 Ohio App. LEXIS 3745 (4th Dist. September 16, 2010).*

SCOTUS granted cert today in Kentucky v. King, 09-1272 (SCOTUSBlog here with links to the petition and response), on a question of police created exigency. The Kentucky Supreme Court’s opinion is here, from January 10. This is the first Fourth Amendment case of the coming term.

Question presented:

Police officers entered an apartment building in hot pursuit of a person who sold crack cocaine to an undercover informant. They heard a door slam, but were not certain which of two apartments the trafficker fled into. A strong odor of marijuana emanated from one of the doors, which prompted the officers to believe the trafficker had fled into that apartment. The officers knocked on the door. They then heard noises which indicated that physical evidence was being destroyed. The officers entered the apartment and found large quantities of drugs. The Kentucky Supreme Court held that this evidence should have been suppressed, ruling that (1) the exigent circumstances exception to the warrant requirement did not apply because the officers created the exigency by knocking on the door, and (2) the hot pursuit exception to the warrant requirement did not apply because the suspect was not aware he was being pursued. … When does lawful police action impermissibly “create” exigent circumstances which preclude warrantless entry; and which of the five tests currently being used by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist?

(There was a second question the court did not accept.)

This is the first case of the term, and one would hope the last. SCOTUS cert grants on a state or government petition are usually a bad sign, but Gant went up on the state’s petition. And, we know that the Maynard GPS case is going up with the Government as the petitioner since there is a conflict in the Circuits. State court conflicts to date are based on state constitutional grounds since no state court apparently had confidence in SCOTUS on the question, but I don’t know. I still have hope here because Maynard was on the mark, and written by a conservative judge. The betting money is on a cert grant with about 100 amicus briefs being filed.

[This case will not be posted on the side bar for a few days because I don’t have access to my computer with the software to do so.]

Defendant was notorious to the University of Louisville Art Library staff and patrons for using the public terminals to view pornography, likely child pornography. They were on the look out. When he showed up and signed in on a terminal, the staff could see pornography, and they called university police. The officer came to defendant, who minimized the image so nobody could see what he was looking at. The officer asked him to come outside so they could talk, and defendant came out. The officer asked about child pornography, and defendant “freely” admitted looking at it and having it on a thumb drive with him. He was arrested. There was probable cause for the arrest. The officer came to the computer and opened the screen seeing child pornography. Defendant had no reasonable expectation of privacy in a library public use computer terminal. He consented to a search of his apartment, that computer, and the thumb drive. United States v. LaPradd, 2010 U.S. Dist. LEXIS 102355 (W.D. Ky. September 28, 2010):

LaPradd did not have a subjective expectation of privacy using the public computers at the Art Library. The computers are located in the lobby of the library and in plain view of the patrons and staff. Indeed, that other patrons saw LaPradd viewing pornographic images indicates just how little privacy is afforded those who use the Art Library’s public computers. Additionally, access to the computers appears to be granted at the library staff’s discretion, illustrating that LaPradd had ultimately no control over whether he could use the computer, and consequently could not have expected any privacy as to his computer-related activities. Finally, the internet sites to which the computer terminal was connected did not contain personal information relevant to LaPradd, such as an email account; instead they were generally accessible to all with a computer and the internet, and therefore LaPradd had no expectation of privacy in viewing those particular sites.

Courts around the country have also been reluctant to extend broad Fourth Amendment search protections to computers and computer-generated information located on a computer outside of one’s residence or place of work. …

[Posted 10/3; I got busy yesterday]

Where a drug dog jumps into a stopped car on his own, without direction of the officer to conduct the sniff, it is not a search, and Place governs. A few other courts have reached the issue, and they are in accord. United States v. Pierce, 09-3865 (3d Cir. October 1, 2010):

In determining that Cole’s “interior sniffs” were not a search, the District Court was persuaded by the reasoning set forth in United States v. Hutchinson, 471 F. Supp. 2d 497 (M.D. Pa. 2007), where the defendant, like Pierce, entered a conditional guilty plea and preserved the issue of the legality of a K-9 dog’s “interior sniffs,” which led to the recovery of substantial quantities of marijuana from the back seat of the van he was driving. Indeed, the District Court, Pierce, and the government agree that Hutchinson, and the cases cited in it, provide the legal framework for deciding when an interior dog sniff transforms into a “search.” (App. 14; Appellant’s Br. 12; Appellee’s Br. 15-16.) Although we affirmed in a not precedential opinion, we did not discuss this issue. United States v. Hutchinson, 316 Fed. App’x 137 (3d Cir. 2009).

We find that the district court’s decision in Hutchinson correctly applies the governing law to the facts germane to the Fourth Amendment issue. The Supreme Court has addressed the use of trained dogs to sniff for illegal drugs in various factual contexts. In United States v. Place, 462 U.S. 696 (1983), the Court applied the Terry stop-and-frisk principles to dog sniffs of luggage: “[T]he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.” Id. at 707.

. . .

Moving to the particular issue before us, the interior sniffs and alerts that led to the discovery of narcotics, both the Hutchinson decision and the District Court’s opinion here rejecting Pierce’s suppression arguments particularly relied on the Tenth Circuit’s reasoning in United States v. Stone that a trained narcotic dog’s instinctive action of jumping into the car does not violate the Fourth Amendment. 866 F.2d 359, 364 (10th Cir. 1989). Perforce, “instinctive” implies the dog enters the car without assistance, facilitation, or other intentional action by its handler. The Tenth Circuit recently reaffirmed Stone in United States v. Vasquez, 555 F.3d 923 (10th Cir. 2009), noting, “we have upheld the legality of such a sniff during a lawful detention when, as here, (1) the dog’s leap into the car was instinctual rather than orchestrated and (2) the officers did not ask the driver to open the point of entry such as a hatchback or a window, used by the dog.” Id. at 930 (citing Stone, 866 F.2d at 364; cf. United States v. Winningham, 140 F.3d 1328, 1330-31 (10th Cir. 1998)). The Eighth Circuit cited to Stone in its reasoning in United States v. Lyons, 486 F.3d 367 (8th Cir. 2007), where the K-9 dog under scrutiny, Capone, “stuck his head through the open passenger-side window and then sat down beside the front passenger door, his indication that he had found the strongest source of the odor of narcotics.” Id. at 370. …

How do you disprove that the officer hadn’t permitted the dog to do it before, so the dog has already learned that he jumps in open windows? In that situation, the officer has essentially trained the dog to jump in car windows, but didn’t specifically direct it in that case. Then what? All the officer has to say is that “He did it on his own.” Defense counsel will have to ask about the number of times it has happened in the past and then hope the officer is truthful.

A child told her mother that defendant had taken potentially pornographic pictures of her with a digital camera. Coupled with the fact defendant was known to be “proficient” with a computer, it was reasonable for the judge issuing the search warrant to draw the conclusion that the pictures would be on his computer, too. State v. Wild, 2010 Ohio 4751, 2010 Ohio App. LEXIS 4020 (2d Dist. October 1, 2010).*

Defendant was seen leaving a drug house in his car, and he was known to have a suspended DL. That was justification for the stop. He fled and dropped baggies of drugs in flight. State v. Mitchell, 2010 Ohio 4708, 2010 Ohio App. LEXIS 3967 (6th Dist. September 30, 2010),*

Defense counsel was not ineffective for not challenging the search of defendant’s car two years before Gant because it was valid as an inventory anyway because he was driving on a suspended DL. State v. Walker, 2010 Ohio 4695, 2010 Ohio App. LEXIS 4002 (11th Dist. September 30, 2010).*

On fd.org: Developments in Federal Search and Seizure Law by Stephen R. Sady, Chief Deputy Federal Public Defender, District of Oregon.

Defendant does not get a Franks hearing on omitted information because every affidavit omits something. More is required in the preliminary showing that just something was omitted. United States v. Polly, 2010 U.S. Dist. LEXIS 108661 (E.D. Ky. October 8, 2010)*:

Franks hearings are not like lollipops at the bank—you do not get one just because you ask. Search warrant affidavits are presumptively valid. Franks v. Delaware, 438 U.S. 154, 172 (1978). Nevertheless, police officers may not intentionally or recklessly lie in their affidavits or omit material information in order to gin-up probable cause where it might not otherwise exist. Criminal defendants may challenge search warrant affidavits on these grounds, but the right to mount such a challenge is not automatic. Before the Court will grant the defendant an opportunity to challenge the affidavit in an evidentiary hearing, the defendant must pass an initial hurdle. This hurdle is particularly high where, as here, the defendant does not allege that the officer affirmatively lied in his affidavit, but rather that the officer omitted important information. After all, every affidavit omits some facts—that is an inherent part of the exercise of reducing real-world events to paper. Because “an allegation of omission potentially opens officers to endless conjecture about investigative leads, fragments of information, or other matters that might, if included, have redounded to the defendant’s benefit,” United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997), the defendant must make a particularly strong preliminary showing before the Court will open the door to a Franks hearing. He must show that the affiant “engaged in ‘deliberate falsehood’ or ‘reckless disregard for the truth’ in omitting information from the affidavit” and that, if the omitted information had been included, probable cause would no longer exist. Id.