Identified business records for a specified time period was not overbroad. United States v. Simon, 2010 U.S. Dist. LEXIS 108079 (N.D. Ind. October 8, 2010):

A warrant satisfies the particularity requirement if the warrant tells a reasonable executing officer what items are to be seized. …

This warrant listed the Simons’ business affiliations and limited the records search concerning those businesses to a particular time frame. It specified tax documents within a particular time frame. The other categories of items are limited by subject matter rather than by time frame. Greater specificity would be needed for a search of an accountant’s office, but this warrant related to a residence.

Seizure of the financial aid documents neither exceeded the warrant’s scope nor demonstrated an impermissible lack of particularity. The financial aid applications contained information from the Simons about taxable income, expenses, and loans, and included copies of tax returns. The warrant specified evidence of the obtaining and concealment of assets by Mr. and Mrs. Simon, and the financial aid documents appear to fall within that category of items.

Defendant was encountered in the hallway of an apartment building by an officer looking for an immigration fugitive. The officer’s talking to him was not a seizure. The officer also told him to sit down on the floor, so he could be questioned later, and that was not a seizure either. When defendant revealed he was from Guatemala without papers, there was reasonable suspicion. United States v. Castillo-Martinez, 2010 U.S. Dist. LEXIS 108154 (N.D. Iowa October 8, 2010).*

The Supreme Court granted cert yesterday and consolidated Camreta v. Greene (09-1454) and Alford v. Greene (09-1478) both from the Ninth Circuit. ScotusBlog’s summary is here. The Ninth Circuit held in Greene (posted here) that interviewing a potential child abuse victim at school violated family privacy. Greene’s question presented from the cert petition:

Does the Fourth Amendment require a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused by her father.

See Youthtoday here.

Angad Singh, Stepping out of the Vehicle: The Potential of Arizona v. Gant to End Automatic Searches Incident to Arrest Beyond the Vehicular Context, 59 Am. U. L. Rev. 1759 (2010). Interesting reading, and this is the third paragraph:

This Comment argues that Gant not only enhances Fourth Amendment protections overall by limiting authority to search an automobile upon arrest, but that its first holding also undermines other cases permitting automatic searches incident to arrest in nonvehicular situations. Gant‘s affirmation of two specific rationales that permit a search incident to arrest, officer safety and the preservation of evidence, directly conflicts with nonvehicular cases allowing automatic searches irrespective of these rationales. Since Gant undermines such cases by reconnecting the search incident to arrest exception with its justifications, applying Gant to cases that permit automatic searches of containers on the person, and certain automatic home searches incident to arrest, serves to enhance privacy protections against these nonvehicular searches that have become police entitlements.

Defendant was stopped for a traffic offense, and when the officer approached, defendant said “Why the f*** are you stopping me?”, and he started to get out of the car. The officer did not like his aggressive tone, and the officer tried to keep defendant in the car. Defendant succeeded in getting the door open and knocking the officer down. The officer Maced him as he ran off. This was an abandonment of the car, which was lawfully impounded and inventoried. United States v. Jefferson, 2010 U.S. Dist. LEXIS 105628 (N.D. Ga. May 25, 2010).*

Defendant’s admission about there being a meth pipe was suppressible, but the evidence would have inevitably been found during the ongoing execution of the search warrant at his house. United States v. Rodriguez, 2010 U.S. Dist. LEXIS 106417 (D. S.D. September 9, 2010).*

Defendant was stopped for a host of traffic offenses, and he argued that the police were actually more interested in him because of suspected drug activity. Well, that’s just irrelevant under the Fourth Amendment since he gave them probable cause to stop him for the traffic offenses. United States v. Mendoza, 2010 U.S. Dist. LEXIS 105570 (S.D. Iowa June 4, 2010).*

Been through what is now called a “naked scanner”? They are really “backscatter scanners.” So innocuous sounding. But, naked scanner is appropriately descriptive. Get this from a German website: “What can the ‘naked’ scanner really see? Pregnancy, intimate piercings, genitals…” I tried embedding the link, but it didn’t work, so here it is:
http://www.bild.de/BILD/news/bild-english/world-news/2009/12/31/pregnancy-body-piercings-genitals/what-can-naked-scanners-really-see.html. Note that it is from December. Wonder why I didn’t see it sooner?

More to the point, since Germans are not as sexually repressed as Americans, you can see the image on the website of a woman which clearly shows her nipples and pubic area. You can also see a gun hidden in the small of her back, which would be found by conventional technology. But not a bomb, or anything hidden in a body cavity. Prison inmates hide shanks and even cell phones in body cavities. Not enough of a bomb to bring a plane down, or would it be? All it has to do is breach the fuselage at 30,000 ft and down it comes, like the PanAm 103 bombing. That one was hidden in a radio in the luggage compartment. But I digress into next having body cavity searches to get on an American airplane. Meanwhile, back to the article:

How intimate are the pictures?

Security advisor Hans-Detlef Dau (54, Hamburg), who sells the scanner, said: “Unlike with a complete X-ray examination, the rays do not go deeply under the skin. They see only the things which lie over it, so bladed weapons and firearms as well as ceramics.

“Beyond that, they show intimate piercings, catheters and the form of breasts and penises.

“But newer devices can automatically distort intimate areas in the picture.”

See prior posts here and here, among others. Remember that last one from May where one TSA worker in Miami was sent through the device and a coworker commented on his penis size which led to a workplace assault? Was he joking, or could he really see? Apparently he really could see.

Sadly, TSA might be a perfect job for a voyeur if he can get scanner duty. My home airport isn’t big enough to ever have one, but I fly through DCA all the time, and the Delta concourse has one.

Finally, the German website mentions a company that sells pasties for going through scanners: FlyingPasties.com. “The next time they tell you that they can’t see you naked, watch this and get back to us…” with video.

What are we becoming? Wearing pasties to fly? The terrorists really are winning. We’re selling our liberty out.

Yesterday was a post about the California man that found an FBI installed GPS on his car, posted here. Yesterday on PogoWasRight is this post: Is there a storm brewing over FBI surveillance? If not, there should be. That post has a link to a TV interview with the GPS target. Wired.com’s story is here.

One can be assured that the government had made no pre-installation showing of probable cause. What is more surprising is that the FBI actually had to grovel and go to the target and ask for the GPS device back. After all, asking for it back led to them telling him, according to Wired.com’s story, that he’d been under surveillance for three to six months. Maybe he wasn’t a terrorist after all. If he was, I’d think that they would just put another one on his car and sure not tell him about it.

The blogosphere is having fun with this: See CNN.com, DisInfo.com, NewsPlurk, AboveTopSecret.com. Google it. The number of appearances is astounding, aside from the mainstream press.

A silver lining? Anything that calls more attention to wanton GPS surveillance of citizens is well worth talking about because, mark my words, the Supreme Court is going to get this issue soon if United States v. Maynard, 615 F.3d 544 (D.C.Cir. August 6, 2010), posted here, survives rehearing en banc because that is the case they will take. (Note that Orin Kerr in the previous link on Volokh Conspiracy thinks that Maynard is not the case for SCOTUS to take.)

In this law office search case, “[t]here is no evidence to establish that the search team grossly exceeded the scope of the warrant in this case, nor that the search was overly broad as to give rise to constitutional concerns.” The use of a “taint team” protected attorney client communications and was not a constitutional violation. United States v. Mower, 2010 U.S. Dist. LEXIS 106927 (D. Utah October 6, 2010):

Defendants argue that the government’s use of taint teams to protect against the improper intrusion into attorney-client privileged information constitutes a per se intrusion on the attorney-client privilege. While courts have expressed mixed reviews on the appropriateness of the use of taint teams in addressing attorney-client privilege issues, the use of a taint team itself does not constitute an intrusion warranting complete suppression of all evidence seized. This is especially true in cases such as this case where the government has already obtained the physical control of potentially privileged documents, the legality of the seizure of documents was not initially challenged, and there are large volumes of documents at issue. See, e.g., In re Grand Jury Subpoenas 04-124-03 and 04-124-05, 454 F.3d 511, 522-23 (6th Cir. 2006); United States v. Winters, no. 06-cr-54, 2006 U.S. Dist. LEXIS 70488, 2006 WL 2789864 at *2 (S.D.N.Y. 9/27/06); Hicks v. Bush, 452 F. Supp. 2d 88, 103 n. 12 (D. D.C. 2006).

The taint team at issue in this case was formed prior to the search and was available for privilege determinations during and throughout the search. The government has stated that the documents all went through several levels of review by the taint team according to the classes of privilege of the documents as designated by the agents, the taint team attorneys and defendants’ counsel. Finally, the government’s use of a taint team was approved by a neutral and detached magistrate and as it was used in conjunction with a valid search warrant, the use of a taint team, in itself, does not warrant a blanket suppression. …

Note: I personally have problems with the entire “taint team” concept when the team comes from DoJ because it leaves the appearance of impropriety for the government and the defendant will never believe that privilege was not breached. A special master process would be far better, but that would cost the government money–retaining a civil lawyer from the community to review everything. The problem with that is protecting grand jury secrecy, but that can be arranged up front. Better yet, let a USMJ do it.

Forced catheterization for a urine sample of a prisoner on a hunger strike was not an unreasonable search where it was clearly medically necessary. Hurrey v. Unknown Tech Med. Person “A”, 2010 U.S. Dist. LEXIS 106035 (N.D. Tex. September 15, 2010):

Plaintiff appears to argue that court authorization was necessary for the forced catheterization; however, a court order is not required for an involuntary medical procedure. Prison officials are not required to allow an inmate to harm himself or commit suicide by fasting. Even force-feeding an inmate under those circumstances is not a violation of his civil rights. See, e.g., Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (rejecting claim that force-feeding an inmate after seven days on a hunger strike was unconstitutional). A forced catheterization on the seventeenth day of a hunger strike to monitor plaintiff’s well-being is not constitutionally offensive. Although plaintiff maintains he was simply trying to lose weight, prison officials had no way of determining why plaintiff was no longer eating, or, more importantly, whatever his goal, whether he was harming himself. Even if they had known plaintiff was trying to lose weight, that would not relieve them of the duty to provide medical care for plaintiff’s serious medical needs, including a determination of whether his self-imposed fast was doing serious harm to his body.

Officer’s use of slight force to get defendant out of the car when defendant refused did not make the action unreasonable. United States v. Jefferson, 2010 U.S. Dist. LEXIS 105629 (N.D. Ga. October 4, 2010)*:

Police officers are authorized to use reasonable force to remove a person from a car in the face of even mild resistance by a driver. See United States v. Bradley, 2009 WL 4281260, at *3 n.5 (S.D. Ga. Nov. 5, 2009), adopted at 2009 WL 4348951, at *1 (N.D. Ga. Nov. 30, 2009) (police officer was “entitled to employ reasonable force to remove defendant from the vehicle” once defendant failed to comply with the officer’s lawful order that defendant exit the vehicle); United States v. Rookard, 2007 WL 2176895, at *6 (W.D.N.Y. July 27, 2007), adopted at *1 (police officer could physically remove defendant from the car after defendant repeatedly refused to comply with the officer’s orders to show his hands); United States v. Douglass, 467 F.3d 621, 622-623 (7th Cir. 2006) (police officer did not violate defendant’s Fourth Amendment rights when, after defendant’s refusal to exit the car, the officer reached through the partially opened window of the car to physically remove defendant from the car).

PA SPCA’s lack of direct involvement in an animal cruelty raid by the government did not permit it to be sued under § 1983. Blank v. Pennsylvania Society for the Prevention of Cruelty to Animals, 2010 U.S. Dist. LEXIS 106142 (E.D. Pa. October 5, 2010).*

A Fourth Amendment for the Poor Alone: Subconstitutional Status and the Myth of the Inviolate Home by Jordan C. Budd of the University of New Hampshire School of Law, to be published in the Indiana Law Journal, Vol. 85, No. 2, 2010. Abstract at the link.

YouTube video: Police threaten to KILL Pastor over License Plate Light being Burned Out.

“The main action of the video is between minutes 0:00-4:00 and 10:50-15:35. The death threat is found around 2:10-2:30.”

This is a thought provoking consent article: Compare consent in a rape case to consent in Fourth Amendment doctrine, and the searched defendant’s perspective should prevail. Blaming the Victim: ‘Consent’ within the Fourth Amendment and Rape Law by Josephine Ross of Howard University School of Law to be published in Harvard Journal of Racial & Ethnic Justice, Vol. 26, p. 1, Spring 2010.

The link on the article name is the SSRN Abstract.

See this unintentionally hilarious piece on WorldnetDaily, a bastion of truth and unabashed promoter of Sarah Palin for President as a government visionary, tells us yesterday in Worldnet Daily: Obama’s euthanizing of 4th Amendment that the Justice Department’s desire to make it possible to wiretap the Internet is the end of the Fourth Amendment.

WND, December 22, 2005 praising President Bush for keeping tabs on the enemy:

No, this debate is about partisan politics. The left wants to deprive Americans of yet another tool in the war on terror, this time by curtailing the ability of our commander in chief to secretly keep tabs on those who wish to kill us. President Bush has briefed senators more than 12 times about this program; he has re-authorized it more than 30 times since 9-11. This program is hardly news to anyone in the know.

If you love the President, then he can do no wrong in trying to “keep tabs on the enemy.” If you hate the President, then his trying to “keep tabs on the enemy” is an affront to the Fourth Amendment. Wiretapping the Internet is a scary thought, but it is but a logical extension of the USA PATRIOT Act, brought to you by the Republican Party at a scary time when nobody in government cared about the civil liberties implications. If you were for the USA PATRIOT Act, you are complicit in what is happening now.

There is also another WND article today that evolution is false, but I digress.

In State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949 (2009), posted here, the Ohio Supreme Court decided 4-3 that a search incident of a cell phone was improper. Today, SCOTUS denied cert (today’s orders page 73).

SCOTUSBlog here.

Joyriding defendant who claimed she did not know car was stolen had no reasonable expectation of privacy in a cigarette case she left in the backseat. Clark v. State, 231 P.3d 366 (Alas. App. 2010):

The prevailing view of cases from other jurisdictions is that a passenger has no expectation of privacy in containers left in a stolen vehicle.FN10 In response, Clark argues that there was no evidence establishing that she knew that Roatch’s vehicle was stolen. But that is not the critical question. The critical question is what information was available to Officer Thompson at the time of the search.

FN10 See 6 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 11.3(e), at 206-07 (4th ed. 2004); Nelson v. State, 405 So.2d 392, 398 (Ala. Crim. App. 1980), rev’d on other grounds, 405 So.2d 401 (Ala. 1981) (holding that passenger in stolen vehicle lacked standing to object to search of vehicle); see also State v. Thompson, 490 S.W.2d 50, 51-52 (Mo. 1973); State v. May, 613 S.W. 2d 877, 881 (Mo. App. 1981); Harper v. State, 84 Nev. 233, 440 P.2d 893, 895-98 (Nev. 1968); State v. Scott, 860 P.2d 1005, 1007-08 (Utah App. 1993); State v. Bruski, 2007 WI 25, 299 Wis. 2d 177, 727 N.W. 2d 503, 511-13 (Wis. 2007) (holding that defendant did not have reasonable expectation of privacy in makeup case he left in vehicle because he did not have permission to be in the vehicle).

Judge Blankenship found that Officer Thompson had probable cause to believe that the vehicle was stolen and that Clark was guilty of joyriding. These findings were adequately supported by Officer Thompson’s testimony about Roatch’s report that Thomas had stolen her vehicle. Based on this information, Officer Thompson could have reasonably concluded that Clark had a reduced expectation of privacy in the containers that were found in the stolen vehicle.

Moreover, Clark apparently chose to leave the cigarette case in the backseat of the vehicle rather than to carry it on her person. Passengers have a reduced interest in containers that they leave in another person’s vehicle.

Capital murder defendant lacked standing to challenge the search of a car of another where his duffle bags were hidden. People v. Thompson, 49 Cal. 4th 79, 231 P.3d 289, 109 Cal. Rptr. 3d 549 (2010).*

Finding a dead body in defendant’s vehicle was reason to go to defendant’s house. There the officers found blood on the sidewalk and on a broom on the sidewalk. Officers went to the door and heard a faint voice inside. There were exigent circumstances for the entry, and PC for the search warrant issued thereafter. [Note: This is not even a close call.] Commonwealth v. Galvin, 603 Pa. 625, 985 A.2d 783 (2009), cert. denied 176 L. Ed. 2d 565 (U.S. 2010):

Here, the affidavits of probable cause offered in support of the search warrant provided a description of the police observing Appellant driving the van at night without its headlights illuminated, the stopping of the van, the observation, in plain view, of Kolesnik’s body, which was covered in a tarp which was wrapped with electrical wire, and on which there was blood. Additionally, the affidavits contained the officers’ observations of blood on Appellant’s leg, wrist watch, and glasses. The affidavits also contained the police officers’ observations of fresh blood leading from the front door of Appellant’s residence to the sidewalk, and a blood-covered broom on the sidewalk. Moreover, the affidavits described the officers’ approach to the door to determine if persons were in need of emergency treatment, the hearing of a faint voice, and the officers’ entry into the residence. Finally, the affidavits described the officers’ search for persons within the residence, and the observations of the officers once inside the residence. Specifically, the affidavits referenced the officers’ observation of a fresh pool of blood on the carpet next to the bed and an expended bullet shell casing on the floor next to the bed.

Video of defendant’s stop supported it—her car was weaving and the taillight was out. State v. Mercer, 2009 Tenn. Crim. App. LEXIS 1041 (December 22, 2009).*

Officers testified that the defendant consented, but he testified he told them to leave. Officers’ testimony credited and binding. State v. Simonton, 2009 Tenn. Crim. App. LEXIS 1062 (December 29, 2009).*

The Pennsylvania Supreme Court has agreed to hear a case that implicates gun searches in every drug case, Commonwealth v. Grahame, 603 Pa. 67, 981 A.2d 1284 (2009):

The issue, rephrased for clarity, is:

Did the Superior Court err in finding sufficient reasonable suspicion based on a “guns follow drugs” presumption to justify a “protective search” of Petitioner’s pocketbook for weapons pursuant to Terry v. Ohio 392 U.S. 1 (1968)?

In addressing this issue, the parties are to discuss and address any alternative, intermediate investigative measures, short of a search, which police officers may have lawfully utilized under the circumstances of this case. See, e.g., 4 Wayne R. Lafave, Search and Seizure § 9.6(e) (4th. Ed. 2008).

The prior post was from eighteen months ago:

Consent to search a house immediately after a drug deal there permitted a search of a large handbag of a guest on the premises. Normally, consent does not extend to the persons of guests not shown to be linked to the crime under investigation, but here the search of the bag was reasonably related to officer safety because it was clearly large enough to hold a gun. Commonwealth v. Grahame, 2008 PA Super 73, 2008 Pa. Super. LEXIS 581 (April 18, 2008).*

Don’t expect a decision soon.

Patdown of female breasts was unreasonable. Overly intensive search was suppressed. State v. Williams, 312 S.W.3d 276 (Tex. App.—Houston (14th Dist.) 2010):

Here, the trial court concluded that Officer Duncan would have been justified in conducting a pat-down of Williams. The distinction between Sheppard and Carmouche and the case at bar is that Officer Duncan did not conduct a Terry pat-down before employing more intrusive means of searching Williams. If a pat-down had been conducted, and if a weapon or other contraband had been detected as a result, then either Officer Duncan or the female officer could have attempted to extract the item or could have conducted a more intrusive search.

Additionally, although Officer Duncan had been told that Williams had a knife, he was not told, nor was there any other indication, that Williams had hidden the knife in her bra. Furthermore, there is nothing to show that a pat-down would have been dangerous or ineffective. Officer Duncan stated that he did not want to pat-down a female, but the State has not cited any authority to show that he was therefore justified in conducting a more intrusive search. And the “more than average” size of Williams’s bust, as Officer Duncan described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search. See Balentine, 71 S.W.3d at 770. Because the State has not presented us with a situation justifying a search exceeding the scope of a pat-down, we cannot say the trial court abused its discretion in suppressing the evidence.

Probation search was justified by defendant’s MySpace page showing gang signs and two guns and cash. The probation search was valid without a search warrant. United States v. Romero, 2010 U.S. Dist. LEXIS 102089 (D. Kan. September 27, 2010):

In April of 2009, Youthville caseworker [], who works with families involved in Child In Need of Care proceedings, had contact with the defendant’s wife, Elizabeth Trevino. [] had worked on a case involving Trevino, defendant Romero and their children since April of 2008. As a result of that contact, [] subsequently looked at the defendant’s “My Space” web page on the internet. The web page showed various photos, including pictures of the defendant with other individuals apparently flashing gang signs, pictures of the defendant with his children, pictures of a firearm with two loaded clips, and large amounts of cash. [] noticed that the desk on which the handgun and cash were sitting looked familiar, and she thought it might be one she had seen in the defendant’s residence. On or about May 7, 2009, [] informed ISO Kristi Winter of the photographs.

Winter was Romero’s supervising probation officer at the time, and she printed the pictures off from the web page on May 8, 2009. Based on the photos, Winter believed the defendant might be involved in gang and criminal activity. She believed the photos showed violations of his gang restriction, and she noted that a picture of the gun showed part of a necklace that was similar to one the defendant was wearing in one of the other photos. [] had informed her that the desk on which the gun sat was similar to one in defendant’s house. Winter also believed that the large amount of cash indicated possible drug activity. Winter obtained approval from her supervisor to conduct a search of defendant’s residence, and she also conveyed the information to the sentencing judge from defendant’s case. She informed the judge that she intended to do a search based on the photos; the judge responded by email thanking her for the information and telling her to let him know the results of the search. No search warrant was requested or issued from the judge. (bracketed material added)

Update, Oct. 1: The person whose name is in brackets requested that her name be removed here. But the name is on Lexis and probably Westlaw. Nevertheless, I removed her name at her request.

Defendant flew into Liberal, KS from Las Cruces, NM without a flight plan with a plane rented in CT. The FAA was mildly suspicious of the flight, since a plane with cocaine had come in six months earlier. The pilot left the plane with the FBO’s aircraft service and asked that it be put in a hanger for the night. He paid for the hanger rental in cash, which was unusual. The police were called and came and a dog sniff was done on the plane, with the dog alerting. The police considered calling a locksmith but the hanger operator had a bucket of loose keys, and one opened the plane. Inside was a locked suitcase which was opened, containing about 28 kilos of cocaine. The government showed that the dog was well-trained, and there were no true false alerts, and the defendant did not rebut it. Defendant had no reasonable expectation of privacy in the hanger. Before the trip, the defendant wrote to his landlord in CT saying he unexpectedly moved to AZ, and he was not coming back to the property, and the landlord could keep the furniture but save the clothing, electronics, and papers. The locks had been changed, and the landlord had to have the locks drilled out to get in. Inside, the landlord found cash and called the police. A further search found cocaine. Defendant had no reasonable expectation of privacy in the house because he told the landlord he abandoned it. United States v. Ruiz, 2010 U.S. Dist. LEXIS 102088 (D. Kan. September 17, 2010).