During defendant’s valid traffic stop, instead of looking for his paperwork for the car, he stared straight ahead. “Rather than attempt to avoid a traffic citation by locating those documents, Defendant remained still and his gaze remained straight ahead. When asked again to locate the registration and insurance information, this time with the suggestion that he look in the vehicle’s glove compartment, Defendant’s nervousness visibly escalated. These behaviors gave rise to increased suspicion by the officers, who now suspected that illegal drugs or a firearm was in the car’s glove compartment.” United States v. Smith, 2010 U.S. Dist. LEXIS 101121 (S.D. W.Va. September 21, 2010).*

Defendant was stopped for overtinted windows, and he made furtive movements before getting out of the car. That justified a frisk of the car for a weapon. United States v. Boyd, 2010 U.S. Dist. LEXIS 101233 (W.D. Mo. August 27, 2010).*

Defendant’s car search may not have been valid under Gant, but it was valid as an inventory, and the officer testified for two pages about the department inventory policy. United States v. Rollins, 2010 U.S. Dist. LEXIS 101952 (E.D. Ky. September 27, 2010).*

The search warrant had one address and the affidavit had another completely different street and number. The affidavit was not incorporated and the owner was not identified. Therefore, the warrant was fatally defective. The state’s argument this was a “mere technicality” was rejected. Thomas v. State, 287 Ga. App. 262, 651 S.E.2d 183 (2007):

Based upon this information received from the two responding officers, a detective with the Gwinnett Drug Task Force submitted an affidavit and application for a warrant to search for marijuana and drug-related documents and paraphernalia at “3958 Bailey Castle Court, Duluth Georgia, Gwinnett.” A magistrate granted the detective the search warrant at 11:28 p. m., but the warrant listed the address for the search as “5365 Williams Road, Georgia, Gwinnett.” The warrant did not make mention of Thomas or any other owner or occupant. The warrant also provided that the affidavit submitted by the detective “shall not be served upon the premises–only the [search warrant] shall be served.” After obtaining the search warrant, the detective, along with the two responding officers, searched Thomas’ residence in the early morning hours of February 2nd and found over 42 pounds of marijuana.

. . .

Citing to OCGA § 17-5-31, the State argues that the erroneous address in the search warrant was a mere technical irregularity, given that the residence and its occupant was described in the detective’s supporting affidavit and application for a warrant. We cannot agree under the circumstances of this case. It is true that even if a search warrant contains an erroneous address, the warrant may nevertheless be valid “where there are other elements of description sufficiently particular to identify the premises to be searched” in the supporting affidavit and application. Lester v. State, 278 Ga. App. 247, 249 (1) (628 SE2d 674) (2006). … Significantly, however, a court is entitled to construe a warrant in conjunction with the supporting affidavit and application only “if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.” (Emphasis omitted.) Battle v. State, 275 Ga. App. 301, 302 (620 SE2d 506) (2005), quoting Groh v. Ramirez, 540 U. S. 551, 557-558 (II) (124 S. Ct. 1284, 157 LE2d 1068) (2004) (holding that officer’s possession of affidavit at searched premises, without leaving a copy with the occupant, was insufficient to allow for consideration of the affidavit in evaluating the constitutionality of the warrant). Here, the search warrant did not contain words incorporating the detective’s affidavit and application, and the warrant expressly stated that the supporting documentation was not to be served upon the occupant. Hence, the warrant cannot be construed with reference to the detective’s affidavit and application. Battle, 275 Ga. App. at 303-304.

It is also true that a warrant containing an erroneous address can pass constitutional muster if the warrant itself contains other descriptive elements that would “permit[] a prudent officer executing the warrant to locate the place definitely and with reasonable certainty, and without depending upon his discretion.” Chambless, 165 Ga. App. at 195 (1). … But, in the instant case, the warrant contained no other descriptive information about the property or the occupant, other than the erroneous address.

Consent was found voluntary of a DWI defendant after officer felt defendant was in sufficient control of his faculties to consent. Davis v. State, 287 Ga. App. 478, 651 S.E.2d 750 (2007).*

Defense counsel was not ineffective for not pursuing a motion to suppress that could not prevail. People v. Morrison, 375 Ill. App. 3d 545, 874 N.E.2d 896, 314 Ill. Dec. 531 (2d Dist. 2007).*

Affidavit for search warrant was not the best, but it was clearly not bare bones, so probable cause was shown. State v. Johnson, 2007 Ohio 4158, 2007 Ohio App. LEXIS 3750 (4th Dist. August 10, 2007).*

Judge: DNA Alone Found Sufficient to Support Indictment, by Mark Fass in the New York Law Journal (September 30, 2010):

A Brooklyn, N.Y. judge has ruled that even though the only evidence linking a defendant to a burglary — DNA on a screwdriver recovered from inside a burglarized movie theater — is “wholly circumstantial,” it is nonetheless sufficient to support an indictment.

Hot pursuit into a house to make an arrest was reasonable. United States v. Ginn, 2010 U.S. Dist. LEXIS 94404 (W.D. Mo. August 24, 2010)*:

In this case, under the particular facts presented, the Court concludes that the law enforcement officers did reasonably perceive exigent circumstances at the time they made the decision to enter the residence at 1519 Charles. At time the officers made that decision, they had reason to believe:

• When Ginn was approached by law enforcement officers regarding his traffic offence, he refused to heed their orders to stop and ran off into a residence, locking the door, and thereafter forcibly attempting to keep the officers from opening the door.

• Prior to entering the residence (which the officers did not know was Ginn’s residence), Ginn was seen displaying what appeared to one officer to be a handgun.

Based on this evidence, an objectively reasonable officer on the scene could have believed that there was an exigency and that a suspect was attempting to escape and/or there was an immediate danger to innocent third persons. These circumstances justified all of the officers’ actions up to and including entry of the residence to arrest Ginn.

A specific date from the CI was not provided to the officer and put into the affidavit for the search warrant, but reading the affidavit as whole, the affidavit was not stale. The CI contacted the officer just before the affidavit was prepared, and it sounded timely reading it as a whole. United States v. Downs, 2010 U.S. Dist. LEXIS 94504 (E.D. N.C. September 10, 2010).*

Remembering what we lost on 9/11 — and what we threw away thereafter, Blog on the Run: Reloaded by Lex Alexander:

On most anniversaries of the terrorist attacks on the Twin Towers and the Pentagon and Flight 77, I have been much more about sorrow than anger.

Not today. Today I’m pissed.

A recent confluence of events is emerging into a mosaic that depicts the destruction of some of what’s most valuable about America. Our Fourth Amendment in particular, and many of our essential rights in general, are under attack by our own government at all levels by officials of both major parties

My own short reflection is similar. We have given up more rights to be “safe” than I could ever imagine. Then the technology boom joined in. Ben Franklin said, depending on the source, “They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” The terrorists didn’t completely win, but they won a lot. Will we ever go back? In don’t think so.

See also Volokh Conspiracy.

Where all three attachments to the application for a search warrant were presented to the USMJ, the fact one was not attached to the warrant when it was served is not a Fourth Amendment violation under Groh. In re Premises Located at 200 N. Main St. Atmore, Alabama, 2010 U.S. Dist. LEXIS 97239 (S.D. Ala. August 19, 2010):

In this case, the Government has produced uncontroverted evidence that the search warrant application and the warrant that were presented to the undersigned Magistrate Judge included “attachment A,” which described the items to be seized. In addition, both the search warrant application and the warrant expressly referenced and incorporated “attachment A.” Accordingly, there is no question about whether the three warrants in issue were validly issued. Instead, the question is whether the failure to include “attachment A” with three of the warrants served on the movants amounted to a constitutional violation. Based upon the above-referenced cases, the undersigned finds that the failure to include “attachment A” does not establish a Fourth Amendment violation because “attachment A” was incorporated into the application and the warrant and specified the items to be seized.

A broken taillight lens covered with tape that had white light coming through was reasonable suspicion for a traffic stop. State v. Brotherton, 2010 Tenn. LEXIS 878 (September 27, 2010), revg State v. Brotherton, 2009 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App., Apr. 23, 2009).*

The trial court found that the defendant consented to a search of her car. She said she couldn’t remember consenting. The trial court’s finding was dispositive. State v. Pennington, 2010 Tenn. Crim. App. LEXIS 804 (September 27, 2010).*

In a drug search, the government seized four large flat screen TVs as alleged proceeds of the crime. The government says that it will not offer the evidence at trial, so the motion to suppress the evidence as outside of the scope of the search warrant is moot. United States v. Chapman, 2010 U.S. Dist. LEXIS 101599 (E.D. Mich. September 27, 2010).*

While talking to the victim of a stabbing in an apartment building, the officer determined that the victim lived there despite his denials. There was a blood trail back to the apartment, which the officer followed, finding drugs and drug paraphernalia in the apartment. Under New York’s Mitchell standard, viewed through Brigham City, the People showed sufficient emergency to justify the entry. The officer did not have to know that there was somebody else injured. People v. Rodriguez, 2010 NY Slip Op 6530, 2010 N.Y. App. Div. LEXIS 6617 (2d Dept. August 31, 2010):

Emergencies are analytically distinct from other exigent circumstances (see 3 LaFave, Search and Seizure § 6.6, n 6). The Fourth Amendment is concerned with reasonable probabilities (see Hill v California, 401 U.S. 797, 804, 91 S. Ct. 1106, 28 L. Ed. 2d 484), and the emergency doctrine is not as exacting as general probable cause analysis (see People v DePaula, 179 AD2d at 426 [noting that the basis for the belief that an emergency existed does not have to meet the probable cause standard]). Indeed, our jurisprudence demonstrates that entry into a home is permissible without a warrant if law enforcement officers reasonably believe that emergency assistance is needed (see People v Desmarat, 38 AD3d at 915 [“objective facts observed by the police provided them with a reasonable basis to believe that an emergency was at hand, that other persons may have been at risk of injury, and that the emergency was associated with (a particular room)”] [emphasis added]; People v Manning, 301 AD2d 661, 663, 756 N.Y.S.2d 58 [“facts were sufficient to support the detective’s belief that there might have been an injured woman in the defendant’s apartment”] [emphasis added]; People v Longboat, 278 AD2d 836, 836, 718 N.Y.S.2d 761 [holding that the hearing court, based on the officer’s testimony, properly determined that the entry was justified by an emergency, “i.e., the perception that an injured person might be in the apartment”] [emphasis added]; see also Michigan v Fisher,US, 130 S Ct 546, 549, 175 L. Ed. 2d 410 [concluding that it was objectively reasonable for the police officers, who observed the defendant throwing things inside his home, to believe that the defendant’s projectiles “might have” a human target or that he would hurt himself; “Officers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception”] [emphasis added]; Brigham City v Stuart, 547 U.S. at 406 [concluding that “the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning”] [emphasis added]; State v Linton, 146 Ariz 184, 185, 704 P2d 825, 826 [concluding that “it was not unreasonable for the officers to believe that a helpless victim might be lying within the house”] [emphasis added]).

The defendant contends that because there was no report of a missing person, and no reason for the officers to believe that there were more than two people involved in the incident, both of whom had been accounted for just prior to the officers’ entry into apartment 3L, there was no objective basis to believe that there was an emergency justifying entry into the apartment. We disagree. …

A fact question for trial was shown as to whether plaintiff’s strip search because she was detained because of an open container violation occurred in the car in which she was riding was necessary. She was strip searched before she went to the bathroom, and the male detainees with her weren’t. Moreover, her body cavity search would be unconstitutional if her allegations are believed by a jury. Lucero v. Bush, 2010 U.S. Dist. LEXIS 90921 (D. S.D. September 1, 2010).*

The CI’s information corroborated by the officers’ surveillance was sufficient to support issuance of the search warrant. United States v. Powell, 2010 U.S. Dist. LEXIS 91278 (E.D. Mich. September 2, 2010).*

Officer’s observation of a gun and drugs through the car window was justification for search of the car. The defendant’s car was not even stopped by the officer; it was in a strip club parking lot when the officer approached to talk to them. United States v. Johnson, 2010 U.S. Dist. LEXIS 91489 (N.D. Ind. September 2, 2010).*

In this meth case, the affidavit for the search warrant referred to information gathered about purchases of pseudoephedrine three weeks earlier. That was not stale, even though meth can be manufactured quickly. United States v. Mathis, 2010 U.S. Dist. LEXIS 101080 (E.D. Mich. September 7, 2010).*

Defendant’s recasting his search argument in a 2255 became a distinction without a difference. He had no reasonable expectation of privacy in this rental car, and the company’s consent was essentially meaningless. Mincey v. United States, 2010 U.S. Dist. LEXIS 100276 (W.D. N.C. September 13, 2010).*

Defendant was found to have consented to the search of his car. His complaints about the authoritative tone of the officer was just a factor, and alone was not enough. United States v. Benard, 2010 U.S. Dist. LEXIS 100189 (D. Utah August 16, 2010).*

From the news overnight:

Birmingham police beating video: Two former Birmingham officers indicted in 2008 beating from AL.com, with video: Two former police officers indicted for Fourth Amendment violations for beating a suspect caught on dashcam video.

‘Feds Radiating Americans’ with Scanners at Road Checkpoints: Is It True?, off AOL news, linking to Prison Planet:

Are scanners being employed at roadway checkpoints to “radiate Americans” with dangerous x-rays designed to peer inside their vehicles? Yes, according to Alex Jones conspiratorial website Prison Planet, and this time, the mainstream media agrees, at least in part.

In his most recent Google Trends coup, Alex Jones encouraged users to repeatedly search the phrase “feds radiating Americans,” to draw attention to Prison Planet reporter Paul Joseph Watson’s new article. In it, the author claims that instead of dedicating their efforts to control illegal immigration and drug trafficking, federal authorities are “more worried about radiating American truck drivers.”

The defendant admittedly often stayed at the residence police entered with an arrest warrant. They had information he was there at the time, which he was, and that satisfied Steagald. United States v. Bellamy, 2010 U.S. Dist. LEXIS 100758 (M.D. Fla. June 16, 2010).*

The affidavit for the search warrant showed probable cause, and defendant’s claim why the good faith exception should not apply is the two judge’s signatures on the papers didn’t exactly match, but they were still the judge’s signature. United States v. Stoudemire, 2010 U.S. Dist. LEXIS 100179 (M.D. Ala. September 21, 2010).*

An ABF freight company employee smelled marijuana coming from a shipping container, and it was determined at the shipper’s warehouse that it contained 505 lbs of marijuana. A controlled delivery was made, and this defendant showed no reasonable expectation of privacy in the shipping container. United States v. Puckett, 2010 U.S. Dist. LEXIS 100910 (N.D. Ill. September 23, 2010).*

From UPI.com (I didn’t know they still existed): Man awarded $52,000 for demolished house, a due process and Fourth Amendment claim brought in San Antonio:

A Texas court awarded a man $52,000 in damages from the city of San Antonio for the unlawful demolition of his house.

Paul Chance Kinnison, 33, who filed suit against the city in May 2008 after his cottage in the Tobin Hill Historic District was demolished by a city crew just 10 days after he purchased the property, was also awarded legal fees by the federal jury — an amount that could total nearly $340,000, the San Antonio Express-News reported Tuesday.

A Maryland police officer charged defendant with a state wiretapping charge for videotaping his own traffic stop with a helmet-cam and putting it on YouTube. Maryland is a two-party consent state. The trial judge held that a police officer has no reasonable expectation of privacy when arresting somebody. Baltimore Sun: Judge says man within rights to record police traffic stop:

In a decision that could make it easier for citizens to record police officers in Maryland, a Harford County judge ruled Monday that state police and prosecutors were wrong to arrest and charge a man for taping his own traffic stop and posting it on the Internet.

Circuit Court Judge Emory A. Plitt Jr.’s ruling helps clarify the state’s wire tap law and makes it clear that police officers enjoy little expectation of privacy as they perform their duties.

The victim of the crime made a 911 call, and she was not treated as a CI. Her call was enough to stop defendant’s car. State v. Victoria, 2010 Ohio 4536, 2010 Ohio App. LEXIS 3831 (2d Dist. September 24, 2010).*

Defendant’s particularity argument is too vague and amounts to a waiver of the issue. State v. Smith, 2010 Ohio 4507, 2010 Ohio App. LEXIS 3842 (4th Dist. September 20, 2010).*

The fact the city tow policy gives officers discretion did not make it unconstitutional. State v. Robinson, 2010 Ohio 4533, 2010 Ohio App. LEXIS 3832 (2d Dist. September 24, 2010), reopening prior appeal State v. Robinson, 2009 Ohio 6395, 2009 Ohio App. LEXIS 5336 (2d Dist. December 4, 2009).

Defendant’s IAC claim against defense counsel’s failing to file a motion to suppress was insufficient to even get a hearing because nothing was offered to even suggest that the motion would be granted. Hawthorne v. State, 2010 Ark. 343, 2010 Ark. LEXIS 431 (September 23, 2010).*

A few weeks ago, as posted here, the Virginia Supreme Court decided the Foltz GPS case holding that real time GPS tracking of a serial rapist did not violate the Fourth Amendment. A creepy defendant, but a creepier government intrusion.

On PogoWasRight.org today, I see that the court has considered rehearing the case. It was in the Washington Post, and I missed it, but PogoWasRight didn’t.

Scott Turow’s op-ed piece in the NYTimes today: Oct. 4, 1995: Reasonable Doubt, about the O.J. Simpson case, and going into the Fourth Amendment:

Everybody hates the Fourth Amendment, of course. What a lamentable concept: the constable blundered so the evidence is lost. But the Fourth Amendment was not added to the Constitution to make most of us happy. It was intended to protect individuals from the state and to insure that political minorities would not be the object of random searches engineered by the political majority.

When the Fourth Amendment and the other constitutional rules restricting police behavior are violated, it necessarily carries with it a strong message to our political minorities that the legal system is a two-faced joker, one that says, “We make the rules and we’ll follow the ones we like.”

The Fifth Circuit holds that it still will require reasonable suspicion of contraband to strip search a detainee for misdemeanor hindering apprehension. Jimenez v. Wood County, Texas, 09-40892 (5th Cir. September 23, 2010):

The County argues that it was not required to base its search of Ms. Jimenez on reasonable suspicion for two reasons. First, it argues that we should reverse our prior precedents and hold that, under Bell v. Wolfish, 441 U.S. 520 (1979), the Fourth Amendment permits visual strip searches of all jail detainees upon being booked into a detention facility, regardless of reasonable suspicion. Second, the County argues in the alternative that the district court erred in classifying hindering apprehension as a “minor offense,” and that the nature of Ms. Jimenez’s offense therefore justified the search regardless of the lack of individualized reasonable suspicion. For the following reasons, we disagree.

There has been a flurry of strip search cases this year coming to somewhat differing results in the circuits. The last post is here. See also here.

The affidavit for the search warrant for defendant’s vehicle was based on probable cause. The fact the warrant sought “contraband” drugs did not make it lack particularity. United States v. Jenkins, 2010 U.S. Dist. LEXIS 98360 (D. Me. August 27, 2010):

I find no substantial basis to conclude that the Cejka affidavit failed to convey probable cause to search the defendant’s minivan. The defendant errs in arguing that Cejka was required to supply probable cause to believe that a specific type of contraband was present in the minivan. Cejka need only have supplied probable cause to believe that contraband was present there. See, e.g., United States v. Martinez-Cortes, 566 F.3d 767, 771 (8th Cir. 2009) (when occupants of vehicle did not promptly comply with orders to put the vehicle in park and show their hands, and defendant moved his arms as if to hide something between his leg and the car’s console, officers had probable cause to believe that criminal activity was afoot and were justified in searching those areas of the vehicle where weapons or contraband might be hidden).

The record shows that the consent in this case was voluntary and valid. United States v. Ziga, 2010 U.S. Dist. LEXIS 98097 (W.D. La. August 27, 2010).*

Gunfire from inside a house and the obvious presence of weapons being used was exigency for an entry into the premises. United States v. Hall, 2010 U.S. Dist. LEXIS 99130 (N.D. Ohio September 21, 2010):

The government contends that the entry into the residence and the subsequent search is justified by the exigent circumstances. The Court agrees.

In this case, a call to the police dispatcher reported gunfire, the possible presence of an assault weapon, and the entry of the persons engaged in the shooting into the house in question. Ms. Hall, who answered the door, confirmed to the officers her understanding that they were present at her door because of shots fired. The police officers testified at the suppression hearing that the purpose of the search was to secure the armed suspects. The officers were concerned about the presence inside the house of individuals with guns who had just been firing the guns, the safety of the residents of the house, and their own safety as the police could not definitively determine whether the residents were under orders from the suspects to act calm, whether the residents were even aware of intruders in the house, or whether more shots might be fired by the suspects in the house. Even after securing the first floor, the officers testified that not all the suspects reported had been accounted for, and movement on the second floor was being confirmed while the officers were in the house securing the first floor. This information supported a continuing concern as to whether suspects with guns remained at large on the second floor, and for the safety of the residents and their own safety from suspects who had already demonstrated a propensity for discharging their weapons.