Defendant was merely on the premises when a search warrant was executed, and he attempted to hide his cell phone. That was not reason enough to search his cell phone. United States v. Garvey, 2010 U.S. Dist. LEXIS 98527 (D. V.I. September 17, 2010).*

Defendant’s Franks challenge to his wiretap failed because the statements weren’t false. United States v. Garvey, 2010 U.S. Dist. LEXIS 98539 (D. V.I. September 17, 2010).*

On the totality of circumstances, there was reasonable suspicion for defendant’s stop. United States v. Garvey, 2010 U.S. Dist. LEXIS 98462 (D. V.I. September 17, 2010).*

Off-duty officer working at a private club escorted defendant off the premises because of an altercation with another. The officer had reasonable suspicion to stop the defendant’s car because of the possibility he was armed. The officer determined there was a warrant out for the defendant, so he was taken into custody and the gun was in plain view. United States v. Robinson, 2010 U.S. Dist. LEXIS 98523 (E.D. Ark. September 20, 2010).*

Back in October 2007, I wrote a post about Alexandre v. New York City Taxi & Limousine Comm’n, 2007 U.S. Dist. LEXIS 73642 (S.D. N.Y. September 28, 2007), and the NYC TLC’s requirement of all taxicabs having GPS monitored by the TLC. (As a sidelight, note that when you pay for a cab fare with a credit card in NYC, it transmits your information via a cell phone link.)

In today’s NYTimes, posted online yesterday is Dozens of Cabbies Are Arrested in Fare Scheme where cab drivers were accused of intentionally overcharging riders by hitting the out-of-city rate button when riders got in the cabs. And how did they catch them? A tip from a passenger and then analyzing GPS data from the suspect cab and then others. This was revealed in a prior story New York Cabs Gouged Riders Out of Millions. Huge numbers of drivers were doing it. The prosecution threshold was 300 events.

And they cannot expect NY’s seminal GPS case, People v. Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (May 12, 2009) (discussed here and posted here, to suppress that information because, as Alexandre found, and anyone must concede, taxicabs have always been regulated, and, in some cities and states, heavily regulated, as in NYC. With 48,000 licensed drivers and 12,000 medallions, they have to be.

The Peer Spectre program is not a wiretap, and its use does not violate the Fourth Amendment. United States v. Willard, 2010 U.S. Dist. LEXIS 98216 (E.D. Va. September 20, 2010):

In 2009, Special Agent Howell analyzed the pen data using the Wyoming Toolkit database. fn1 The database uses an automated software program called Peer Spectre which reads publicly available information from computers identified as sharing child pornography images. Special Agent Howell queried Wyoming Toolkit regarding the IP addresses that communicated with Defendant’s IP address in October and November 2008, and found that more than 2,200 of those IP addresses had been previously identified by Peer Spectre as advertising child pornography files available for sharing.

1 The Wyoming Toolkit database was developed by the Wyoming Internet Crimes Against Children (“ICAC”) Task Force. Whenever an investigator identifies child pornography that is shared over a peer-to-peer file-sharing network, the observation is recorded into the Wyoming Toolkit database. The database record contains: (1) the date and time of the observation; (2) the SHA1 value of the files; and (3) the name of the files and the IP address sharing the files. SHA1 stands for Secure Hash Algorithm 1. It is essentially a fingerprint of a digital file. By comparing the SHA1 values of two files, investigators can determine whether the files are identical with precision greater than 99.9999 percent certainty.

. . .

Defendant argues in the instant case that the Government’s use of Wyoming Toolkit and Peer Spectre to determine the nature of his computer files was analogous to installing a wiretap and went beyond the scope of the pen register orders. As such, Defendant argues, the officers should have obtained a search warrant based on probable cause.

The Court finds that the use of Peer Spectre did not constitute a wiretap because the software does not intercept electronic communications. The functions performed by Peer Spectre and Wyoming Toolkit are more akin to mining data. The term “intercept” as used in the Wiretap Act requires that the acquisition of contents be contemporaneous with the transmission of such contents. See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002) (“Congress … accepted and implicitly approved the judicial definition of ‘intercept’ as acquisition contemporaneous with transmission. We therefore hold that for a website … to be ‘intercepted’ in violation of the Wiretap Act, it must be acquired during transmission, not while it is in electronic storage.”). Peer Spectre does not acquire communications contemporaneously with the transfer of data from one IP address to another. Instead, it reads publicly available advertisements from computers identified as offering images of child pornography for distribution and identifies their IP addresses.

Defendant’s IAC claim that defense counsel waived his Fourth Amendment parole search claim in his state appeal fails because, even if all that defendant says is true, the search would have been valid under the good faith exception for searches under a prior statute declared unconstitutional (Illinois v. Krull). Hunt v. United States, 2010 U.S. Dist. LEXIS 97450 (S.D. Ohio September 17, 2010).*

The defendant’s stop was not unreasonably prolonged by the officer’s questioning of his travel plans. United States v. Pennington, 2010 U.S. Dist. LEXIS 97931 (E.D. Ky. August 25, 2010).*

In a consent search issue, the USMJ found the defendant’s “testimony hyperbolic and exaggerated,” veering to editorial, not fact, and credited the officer. The record supports the conclusion. United States v. MacConnell, 2010 U.S. Dist. LEXIS 97962 (W.D. N.C. August 24, 2010), adopting 2010 U.S. Dist. LEXIS 97934 (W.D. N.C. June 11, 2010).*

In the D.C. Cir’s Maynard GPS case, posted here, the government has filed a petition for rehearing en banc. See Blog of the Legal Times.

[Posted 9/22 because I had a federal appellate argument yesterday morning, and then my computer died.]

The search incident of defendant’s car pre-Gant for driving on a suspended license violated Gant, even though it was commonly understood that it was valid before Gant. The court concludes that Gant has to be retroactive under general rules of constitutional adjudication, and Gant would have said it wasn’t retroactive if it wasn’t supposed to be. McCane and other good faith cases are rejected because this proposed good faith exception conflicts with the principles of constitutional adjudication. Finally, the state did not show inventory as inevitable discovery. State v. Johnson, 2010 Mo. App. LEXIS 964 (July 13, 2010), Modified August 31, 2010:

The effect of using objectively reasonable reliance on case law as a basis for applying the good-faith exception would be to ignore the Supreme Court’s retroactivity rules, set forth above, in the context of Fourth Amendment cases. While truly “new” rules interpreting the Fourth Amendment might technically be applied retroactively, they could have no retroactive effect because a new constitutional rule interpreting the Fourth Amendment would in every case result in a good-faith exception to the exclusionary rule. We would recognize that the individual’s rights were violated, but we would afford him no remedy. Therefore, applying the good-faith exception to reasonable reliance on precedent would cause a tension between the good-faith exception and the retroactivity doctrine that we find unacceptable. See United States v. Gonzales, 578 F.3d 1130, 1132 (9th Cir. 2009) (in a case factually similar to Johnson’s, holding that to apply the good-faith exception would conflict with the Supreme Court’s retroactivity precedents); United States v. Buford, 623 F. Supp. 2d 923, 926-27 (M.D. Tenn. 2009). 10 Applying the good-faith exception to reasonable reliance on precedent would require that we ignore the spirit, if not the letter, of Supreme Court precedent by interpreting Gant as having “fish[ed] one case from the stream of appellate review” while “permitting a stream of similar cases… to flow by unaffected.” 11 Mackey, 401 U.S. at 679 (Harlan J., dissenting). Thus, the State, in asking us to apply the good-faith exception to reliance on case law, is effectively asking us to reinvigorate the clear break rationale, albeit under a new name, “good faith,” for new constitutional rules affecting the Fourth Amendment.

10 The State cites United States v. McCane, 573 F.3d 1037, 1039 (10th Cir. 2009), where the Tenth Circuit held that, regardless of any retroactive effect of Gant, the good-faith exception should be used to admit evidence found during a search incident to arrest that Gant would deem unconstitutional. Because we believe that both the United States Supreme Court and the Missouri Supreme Court would apply the Griffith retroactivity rule over Leon’s good-faith exception in cases where the two doctrines conflict, we do not find McCane persuasive. However, we acknowledge that a number of other courts have applied the good-faith exception to post-Gant motions to suppress. See, e.g., United States v. Allison, 637 F. Supp. 2d 657 (S.D. Iowa 2009); United States v. Lopez, Crim. Action No. 6:06-120-DCR, 2009 WL 3112127 (E.D.Ky. Sept. 23, 2009); Brown v. State, 24 So.3d 671 (Fla. Dist. Ct. App. 2009). See also United States v. Grote, No. CR-08-6057-LRS, 2009 WL 2068023 (E.D. Wash. July 15, 2009) (ruled in the alternative that, even if the search of defendant’s vehicle was not a valid search incident to arrest, evidence obtained from the search should not be excluded because the officer conducted the search in objective good faith based on pre-Gant case law).

From CBS13 in Sacramento: Several Cases Linked To Former Officer Dropped after accusations were proved that he lied about numerous cases where his dashcam video proved it–79 cases were dropped.

The search warrant that produced evidence in this case came from another case against the defendant where he fully litigated the search issue. Issue preclusion applies in civil and criminal cases. “The rule of collateral estoppel applies in criminal cases as well as civil cases, although in criminal cases, the rule ‘“is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality[.]”’ Untied States v. Torres-Villalobos, 487 F.3d 607, 617 (8th Cir. 2007) (quoting Hernandez-Uribe v. United States, 515 F.2d 20, 22 (8th Cir. 1975)).” In the prior case, the subject was a shotgun. Here it was child pornography. The court goes to the merits of the search issue, and it finds that the search was by third-party consent. United States v. McManaman, 2010 U.S. Dist. LEXIS 96106 (N.D. Iowa September 14, 2010).

Defendant’s bus encounter with the police in Shreveport was by consent. A dog had already alerted to defendant’s bag, but he didn’t know it. The officers asked to talk to him over in the baggage handling area, and he came with them. After some conversation, he was told the dog alerted, and he insisted he had no drugs in the bag. He consented to a search and a stolen gun was found, and he was under indictment. This was all by consent. United States v. McCurdy, 2010 U.S. Dist. LEXIS 96501 (W.D. La. September 2, 2010).*

Local officials found out that the plaintiff ISP company was allegedly tolerating child pornography exchanges through its servers and it did not monitor any usage. They obtained a search warrant for the servers for the child porn and seized the computers. The ISP filed a civil rights action against the officials which they lost on First and Fourth Amendment grounds. They argued overbreadth because of seizure of protected materials as well under both the First and Fourth Amendment. Voicenet Communications, Inc. v. Corbett, 2010 U.S. Dist. LEXIS 95619 (E.D. Pa. September 13, 2010). As to the Fourth Amendment overbreadth claim, they failed; the entire server was seizable for off-site search.

In this case, however, the affidavit of probable cause specifically establishes, in detail, how the plaintiffs’ computer system would be of evidentiary value in the search for evidence of child pornography. The affidavit, which was incorporated into the warrant, states sufficient facts to establish probable cause to believe that contraband would be found in the Quikvue computer system. It limits the scope of the search to Quikvue’s business records, subscriber information, any records pertaining to the distribution or possession of child pornography, and any and all visual depictions of minors engaged in sexually explicit conduct. It also provides that, based upon their training and experience, the affiants knew that computers are utilized by individuals who exploit children, including those who collect and distribute child pornography. The warrant in this case, therefore, was specific as to the place to be searched and the items to be seized, left nothing to the “discretion” or “whim” of the officers conducting the search and complied with the normal preconditions for a warrant.

The plaintiffs also argue that the warrant was overbroad because it allowed the defendants to seize and keep their equipment off-site. They argue that, instead, the defendants should have seized only the contraband itself, by segregating the contraband material on the plaintiff’s premises. Because of the difficulties inherent in finding, segregating and preserving evidence of contraband on computer systems, however, courts routinely allow the seizure of computer hardware to conduct an off-site search. See, e.g., United States v. Hay, 231 F.3d 630, 634 (9th Cir. 2000); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999); Guest v. Leis, 255 F.3d 325 (6th Cir. 2001). 21 Although the United States Court of Appeals for the Third Circuit has not directly addressed this issue, it has permitted the seizure of computer hardware upon a showing of probable cause that the hardware is the instrumentality or evidence of a crime, such as the possession of child pornography. See, e.g., Vosburgh, 602 F.3d at 527 (allowing the seizure of a destroyed computer hard drive, key drive and external hard drive).

The Bilateral Fourth Amendment and the Duties of Law-Abiding Persons by L. Rush Atkinson V of N.Y.U. School of Law, forthcoming in the Georgetown Law Journal, on SSRN. The Abstract:

The Fourth Amendment protects the innocent only from “unreasonable” searches. In lieu of the limited nature of this constitutional safeguard, law abiders consistently take precautions to avoid government searches. This Article considers why constitutional jurisprudence limits the protection of the innocent to “unreasonable” searches, thereby forcing them to alter their behavior. The most satisfying answer derives from an often overlooked fact: Searches of innocent persons are often “bilateral accidents,” meaning that both the innocent suspect and the police can affect the likelihood of an erroneous search occurring. In bilateral conditions, a reasonableness rule induces both the searcher and searched to take optimal care to avoid mistaken searches, while other rules embodied in constitutional protections — like that within the Takings Clause — cannot.

By assigning costs for erroneous-but-reasonable searches to the innocent, the Fourth Amendment functions as an important regulatory device, channeling law abiders away from activity that unintentionally masks others’ criminal enterprises. Thus, the Amendment regulates the very people that it protects from governmental intrusions. This Article refers to this duality as the “bilateral Fourth Amendment,” and argues the Amendment’s incentives for the innocent are best understood as a duty for law-abiding people to act reasonably.

At the same time, identifying the “bilateral” nature of searches should influence the legal rules dictating what evidence police may use as grounds to search a suspect. Because the innocent alter their behavior based on which activities the government deems “suspicious,” rules about cause and suspicion cannot singly turn on evidence’s probative value; they must also account for the socially beneficial activity that is reduced by labeling behavior “suspicious.”

The CI here appeared before the judge issuing the search warrant. While there were leading questions asked, the judge had a substantial factual basis for issuing the search warrant. The reviewing court does not have to parse the questioning to determine whether probable cause exists. United States v. Glover, 2010 U.S. Dist. LEXIS 94359 (W.D. N.Y. September 10, 2010):

As has been clearly articulated by the Court of Appeals for the Second Circuit, the role of a reviewing court is “simply to ensure that the magistrate had a substantial basis for . . . conclud[ing]” that probable cause existed and not as the defendant would have this Court believe, to scrutinize the form of the questions posed by the issuing judge. Here, the defendant objects to what he characterizes as leading questions posed by Judge Drury and on that basis alone, concludes that Judge Drury did not have substantial basis for the finding of probable cause. As discussed above, Second Circuit precedent clearly establishes the role of the judge in examining the totality of the circumstances and further, what the judge is required to assess in determining whether probable cause exists. Notably, Second Circuit precedent does not mandate that judges follow a script in questioning a confidential informant, rather, judges must make a practical, common sense decision, given all the circumstances. Equally well-established by Second Circuit precedent is the role of the reviewing court. Based on the clearly delineated role of a reviewing court, this Court declines to second guess Judge Drury’s evaluation of the affidavit and testimony of the confidential informant, especially Judge Drury’s method of questioning the confidential informant and Judge Drury’s finding of probable cause.

Usually, bringing the CI to the issuing magistrate far more easily helps the prosecution prove the substantial basis for issuance of the search warrant.

The Timely Demise of the Fourth Amendment Third Party Doctrine by Stephen E. Henderson of Widener University School of Law, forthcoming in the Iowa Law Review on SSRN.

Abstract:

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine “has at least taken ill, and it can be hoped it is an illness from which it will never recover.” It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend or invoke it, and lower courts seem to be responding to that shift. In the relatively short space allotted, I place Tokson’s thoughtful argument in this greater context, and briefly reply to related arguments of Professor Kerr and Judge Posner.

From AP: Allegheny Co. [PA] reaches $3M strip-search settlement:

Allegheny County has agreed to pay $3 million to settle a lawsuit over strip searches for nonviolent offenders.

County solicitor Michael Wojcik tells the Pittsburgh Tribune-Review the county agreed to settle because the courts have recently favored plaintiffs in similar cases.

The plaintiffs sued the county over routine strip searches for those accused of misdemeanor or summary offenses.

The search and seizure warrant for seizure of computers and hard drives was timely served, but the data was not searched until after the 90 days expired. This was not a violation of the warrant because the warrant distinguished between seizure of the hardware and the data which could be searched later. Moreover, inevitable discovery supported it under Mil. R. Evid. 311(b)(2). The military judge erred in suppressing. United States v. Cote, 2010 CCA LEXIS 186 (A.F. Ct. Crim. App. April 6, 2010):

The warrant clearly distinguishes three types of material: electronic devices, storage media, and electronic data. As stated in the addendum to the warrant, the 90-day time limit for searches clearly applies only to seized devices and media, not the data on such devices and media: “The search of any Electronic Device or Storage Media authorized by this warrant shall be completed within 90 days from the date of the warrant unless, for good cause demonstrated, such date is extended by an order of the Court.” Emphasis added. Highlighting this distinction between devices, media, and data, the warrant later authorizes retention of devices and media that contain contraband but directs the return of copies of data on such devices and media that do not contain contraband.

This construction of the warrant is consistent with the view that computer searches are a “two-step process” of first seizing devices and media and then later searching the data. Wayne R. Lafave, Search and Seizure, § 4.7 (4th ed. supp. 2009-10) (citing Kerr, Search Warrants in an Era of Digital Evidence, 75 MISS. L.J. 85, 86 (2005)). Indeed, in her ruling the military judge recognized the routine practice of law enforcement to make forensic copies of computer data for later analysis, but then mistakenly applied the 90-day restriction to that copied data. Consistent with routine practice, SA SH lawfully copied and stored the electronic data from the Sony and HP storage media onto government servers within the time specified in the warrant. His later analysis of that data in the forensic copies did not violate the warrant’s 90-day time limit for searches of electronic devices or media seized from the appellee.

This construction is also consistent with the settled view that, contrary to the military judge’s conclusion, no reasonable expectation of privacy exists in copies made of lawfully seized data. …

Defendant was arrested for child enticement involving an Internet sting with a fake underage girl. His consent to search his computer and dormitory room on base was voluntary. United States v. Koebele, 2010 CCA LEXIS 208 (A.F. Ct. Crim. App. May 19, 2010) (unpublished).

Classic [my word] hot pursuit of a man fleeing from being pointed out as an assailant with a gun led to a valid entry to arrest him. He was tackled inside his apartment. United States v. Collymore, 2010 U.S. Dist. LEXIS 93773 (D. R.I. September 8, 2010):

At approximately 1:50 in the morning on November 3, 2009, Greene, a Providence police officer, was dispatched to 54 Dartmouth Avenue for a report of a disturbance involving a weapon. Gov. Exhibit 1. When Greene arrived at that address, he briefly detained a potential suspect. While patting down the suspect, Greene heard Brian Clements (“Clements”) pointing to 53 Dartmouth Avenue, yelling – “That’s not him. That’s not him. He just put a f***ing gun to my chin. He was up there on the second floor.” Transcript vol. I, 9:13-14, June 16, 2010.3 Greene testified that Clements, who was visibly “upset,” was “bleeding from his chin and his neck area” and had abrasions that were not present when Greene had dropped him off earlier that evening. Id. at 12:9-10.

According to Greene, he then observed a “silhouette of a person in the door of the entrance to 53 Dartmouth Avenue.” Id. at 12:23-24. When Greene approached the door, he pulled on it a few times, noticed it was locked, and then banged on it until it was opened from the inside by Defendant. Greene kicked debris into the door to keep it open, and heard Clements repeatedly yelling from the courtyard – “That’s him. That’s the mother f***er right there.” Id. at 13:20. Defendant began to run up the stairs and Greene pursued him. Greene noticed that Defendant’s right hand was in front of his body near his waist, leading Greene to believe that Defendant was armed. Id. at 14:6-7.

Greene testified that he tackled Defendant as he reached the second floor landing in the doorway of apartment 3, where the door was wide open. After a short struggle, Greene handcuffed Defendant and patted him down. While Greene did not find a weapon on Defendant’s person, he did observe, through the open doorway of apartment 3, a firearm on the table next to the couch and a bag of marijuana on the coffee table. According to Greene, the gun was “approximately five feet” away from him and in plain view. Transcript vol. I, 15:18.

Two year old information of sexual abuse in a child pornography and Mann Act investigation was not stale. It was timely corroborated, too. “In these circumstances, the two-year period between the time of the alleged sexual abuse and the time B.R. reported the abuse to her mother does not necessarily render the information stale. As the Magistrate Judge noted, ‘If that were the case, no warrant could ever be issued to obtain evidence of a crime that had occurred years before.’ (Report and Recommendation at 8, Docket No. 40.)” United States v. Bourgeois, 2010 U.S. Dist. LEXIS 93007 (D. Minn. September 7, 2010).*

A Boston Globe editorial from September 2d, which I just saw today: Supreme Court, Congress need new rules for GPS searches:

THE FOURTH Amendment protects Americans against “unreasonable searches and seizures.” But that protection, the Supreme Court has held consistently for more than 40 years, applies only where there is “a legitimate expectation of privacy.” This means, for example, that the police do not need a warrant to follow a suspect as he drives through town, since a person’s public movements are visible to anyone who chooses to look.

But that test is fast becoming outmoded in an age when advancing technology makes possible a degree of relentless 24/7 surveillance that would have been the stuff of science fiction four decades ago. The Supreme Court should take the first opportunity to reassess its test in light of improved electronic surveillance devices, and Congress should step in to provide guidelines of its own.

The founding fathers are rolling in their graves.

Flint eyes drug tests for public housing; Effort aimed at curbing crime, but ACLU says plan unconstitutional, by Kim Kozlowski in the Detroit News:

Flint’s public housing authority, in an effort to fight crime in the projects, is considering a requirement for all current and prospective residents to take a drug test to keep their federally subsidized apartments.

Flint Housing Commission Executive Rodney Slaughter said he wants a drug-testing program modeled after the city of Indianapolis, where public housing residents are required to take annual drug tests. If a resident tests positive, they would have 30 days to test negative or seek help.

“We’re trying to change the mindset,” Slaughter said. “There is a reasonable amount of negative events that take place … drug dealing, gambling, dice throwing. People should have the right to live in a drug-free, clean community.”

Unconstitutional? Well, duh!

Remember this post from June about the Georgia lawmaker that wanted to drug test those getting unemployment benefits? FoxNews thought it was a jolly good idea, taking away the privacy rights of anybody other than their viewers.

These utterly senseless public [dis]servants need to be drug tested because their stupidity about fundamental privacy law is stunning. Could drug use explain it? No. They must be the product of a failing school system in their states where they either slept through or cut class the day the Fourth Amendment was talked about.

I understood more about the Fourth Amendment in 8th Grade (1961-62; a class debate, Watertown NY public school) than these clowns today, which is perhaps why I’m doing what I’m doing.

Defendant’s car frisk was based on objective observations, and the officer’s supposed subjective belief did not matter. He had a knife, overtinted windows, and a “thin blue line” sticker when he had nothing to do with law enforcement. United States v. Vinton, 389 U.S. App. D.C. 199, 594 F.3d 14 (D.C. Cir. 2010)*:

Finally, Vinton’s argument that Officer Alton did not subjectively believe Vinton was dangerous may easily be rejected. Because “[t]he Fourth Amendment test is objective,” an officer’s “actual subjective motives … are irrelevant to the Fourth Amendment analysis of [a] traffic stop and protective search of the car.” United States v. Washington, 559 F.3d 573, 575 (D.C. Cir. 2009). Of course, it was possible that Vinton used his sheathed knife only for fishing, that he had benign reasons for having excessively tinted windows, and that his “thin blue line” sticker was not meant to be misleading. But “[a] determination that reasonable suspicion exists … need not rule out the possibility of innocent conduct.” Arvizu, 534 U.S. at 277. Examining the totality of the circumstances objectively, Officer Alton had a reasonable belief, based on specific and articulable facts, that Vinton was armed and dangerous. See Long, 463 U.S. at 1049. Thus, he properly searched the passenger compartment of Vinton’s car for additional weapons.

District court and USMJ credited officers on consent issue, and the evidence supports it, so defendant’s standing does not even have to be decided. United States v. Bater, 594 F.3d 51 (1st Cir. 2010).*

Speeding on a supermarket parking lot justifies a community caretaking stop because pedestrians were at risk. Pleasant-Bey v. United States, 988 A.2d 496 (D.C. App. 2010).*

A consent to search is non-testimonial and not governed by the Fifth Amendment. State v. Sydnor, 2010 Tenn. Crim. App. LEXIS 75 (February 2, 2010).*

Officers had information a passenger was on the “FBI’s terrorist watch list,’ and that was reasonable suspicion to continue the stop. Finally, there was consent. United States v. Abdow, 2010 U.S. Dist. LEXIS 44582 (D. Minn. February 22, 2010).*

The stop of defendant’s car was with probable cause, as was the search. Defendant’s consent argument fails because the court finds he intended to consent, despite the language barrier. United States v. Valenzuela-Beltran, 2010 U.S. Dist. LEXIS 44490 (W.D. La. April 21, 2010).*

Information about controlled buy relayed to officer who stopped the car was sufficient for a stop. United States v. Garcia, 2010 U.S. Dist. LEXIS 44162 (D. Minn. March 22, 2010).*

In a Brooklyn search warrant sought by the Joint Terrorism Task Force, the items seized were all within the scope of the warrant. The government still has to show relevance at trial. United States v. Defreitas, 701 F. Supp. 2d 309 (E.D. N.Y. May 6, 2010),* prior opinion 701 F. Supp. 2d 297 (E.D. N.Y. 2010).

A dog sniff at the garage door is not a search, and it does not violate any reasonable expectation of privacy. Romo v. State, 315 S.W.3d 565 (Tex. App.—Ft. Worth April 8, 2010):

However, before we reach reasonableness, we must first determine whether a search even occurred. Our sister court has held that a dog sniff of a front door is not a search. See Rodriguez, 106 S.W.3d at 228-29 (holding that appellant did not have a reasonable expectation of privacy outside his home where the drug dog sniffed because the front door area was not enclosed, it was used as a main entrance to the house, and it was not protected from observation by passersby); see also Smith v. State, No. 01-02-00503-CR, 2004 Tex. App. LEXIS 1121, 2004 WL 213395, at *3 (Tex. App.–Houston [1st Dist.] Feb. 5, 2004, pet. ref’d) (mem. op., not designated for publication) (holding that appellant’s privacy interests under the U.S. and Texas Constitutions were not invaded when officer walked up appellant’s driveway to allow drug dog to sniff appellant’s garage door), cert. denied, 544 U.S. 961, 125 S. Ct. 1726, 161 L. Ed. 2d 602 (2005). The Rodriguez court reasoned that because a dog sniff discloses only the presence or absence of narcotics, in which there is no reasonable expectation of privacy,fn6 and does not expose noncontraband items, activity, or information that would otherwise remain hidden from public view, it does not intrude on a legitimate expectation of privacy and is thus not a “search” for Fourth Amendment purposes. 106 S.W.3d at 228-29; see also Porter v. State, 93 S.W.3d 342, 346-47 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d) (holding same). We agree with this reasoning and conclude that Rocky’s sniffs of the garage door and the backyard fence were not searches under the Fourth Amendment or the Texas constitution because he sniffed areas that were not protected from observation by passersby and because Romo had no reasonable expectation of privacy in the odor of marihuana coming from his backyard.

6 The Rodriguez court states, “There is no legitimate expectation or interest in ‘privately’ possessing an illegal narcotic.” 106 S.W.3d at 229; see Wilson v. State, 98 S.W.3d 265, 272-73 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d) (holding that a dog sniff of the area outside the door of a hotel room is not a search under the Fourth Amendment or the Texas constitution because the dog’s sniff does not explore the details of the hotel room and the sniff reveals nothing about the room other than the presence of cocaine, in which there is no legitimate privacy interest); see also United States v. Jacobsen, 466 U.S. 109, 122, 104 S. Ct. 1652, 1661, 80 L. Ed. 2d 85 (1984) (“The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities.”).