Forced catheterization by a hospital for urine sample and then turning urine over to police in a DUI case stated a claim for relief against the hospital. Elliott v. Rush Mem. Hosp., 928 N.E.2d 634 (Ind. App. 2010):

In sum, we hold that Elliott’s proposed complaint adequately stated factual issues regarding whether Elliott’s urine sample was obtained pursuant to a written request meeting the dictates of subsection (g)(2), whether the taking of the sample constituted unreasonable force in contravention of subsection (g)(3), and whether forced catheterization constituted a “medically accepted manner” for obtaining a urine sample under subsection (i). The Defendants have not established that they are entitled to immunity as a matter of law under Section 9-30-6-6 against any civil claims Elliott might bring.

A search warrant for a house does not have to list a safe found in the house as a thing or place to be searched if the things sought could be secreted in the safe. State v. Stites, 2009 Ark. 154, 300 S.W.3d 103 (2009). [Actually, how often will the police know that there is a safe inside?]

Officers received an anonymous call that defendant was engaged in a grow operation in his house, and they sufficiently corroborated it by a trash pull to get a search warrant. United States v. Silvey, 2009 U.S. Dist. LEXIS 21522 (E.D. Ky. March 17, 2009).*

Going in and out of a convenience store six times in 3-4 minutes without buying anything was reasonable suspicion. United States v. Hare, 2009 U.S. Dist. LEXIS 21287 (W.D. Mo. March 13, 2009).*

“[W]e hold that defendant’s weaving within his lane, standing alone, is insufficient to support a reasonable suspicion that defendant was driving under the influence of alcohol. To hold otherwise would extend the grounds for reasonable suspicion farther than our Courts ever have.” State v. Fields, 195 N.C. App. 740, 673 S.E.2d 765 (2009).*

“[S]trip searches carried out in non-secluded areas of prisons and in the presence of prison employees of the opposite sex are not unconstitutional.” Tuft v. Chaney, 2009 U.S. Dist. LEXIS 12860 (S.D. Tex. February 17, 2009).*

Probable cause was shown for seizure of DNA evidence in a bank robbery case. United States v. Cornelius, 2009 U.S. Dist. LEXIS 12849 (D. Kan. February 19, 2009).*

Defendant was detained based on a warrant, and he was handcuffed. About 8 minutes into it, the officers learned that the warrant had been recalled, and they unhandcuffed him. While conversing with him, they obtained consent. The consent was separate from the arrest on the recalled warrant. State v. Haslam, 2009 Ohio 696, 2009 Ohio App. LEXIS 604 (7th Dist. February 10, 2009).*

The evidence supports the trial court’s finding of consent, and this appellate argument is really just that the wrong conclusion was reached. State v. Hodges, 195 N.C. App. 390, 672 S.E.2d 724 (2009).* See also McFadden v. State, 2009 Tex. App. LEXIS 1119 (Tex. App.—San Antonio February 18, 2009).*

Defendant visiting another answered the motel room door smoking a blunt, and the officer smelled and saw it, handcuffed him, and did a protective sweep of the room before getting a search warrant. Celestin v. State, 296 Ga. App. 727, 675 S.E.2d 480 (2009)*:

Celestin argues that the warrantless intrusion into the motel room was not justified by exigent circumstances. We disagree. First, pretermitting whether Celestin had a reasonable expectation of privacy in a motel room that he had occupied for only a few hours, neither Butler’s knock on the door nor Bracken’s presence in the corridor implicated the Fourth Amendment. Thereafter, Bracken was “rightfully standing before the open doorway of the motel room for purposes of investigation” when he saw Celestin with contraband. Observing Celestin smoking marijuana created an exigency that justified the officer’s warrantless intrusion. “A classic example of exigent circumstances is the likelihood that contraband is in danger of immediate destruction.” Bracken was entitled under the exigency doctrine to enter the room to prevent the further destruction of the contraband.

Officers reasonably entered defendant’s apartment without a warrant after a drug sale outside and then when officers moved to arrest, another fled inside and nobody would come to the door and there were sounds inside consistent with destruction of evidence. They climbed to the balcony. United States v. Anderson, 2010 U.S. Dist. LEXIS 90158 (E.D. Mo. July 30, 2010)*:

Based on this evidence, an objectively reasonable officer on the scene could have believed that there was an exigency and that contraband inside of 815½ Gladstone Blvd. was being destroyed 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 apartment (after Anderson opened the door) to arrest the occupants.

The officer found defendant had a drug history and called in a drug dog for a valid sniff. United States v. Jones, 2010 U.S. Dist. LEXIS 89256 (M.D. Ala. June 11, 2010).*

Defendant was not in custody at the time he consented, and thus not subject to Miranda, and he voluntarily consented. United States v. Burnett, 2010 U.S. Dist. LEXIS 90207 (W.D. Mo. August 2, 2010).*

By entering a National Wildlife Refuge, a hunter does not impliedly consent to a search. United States v. Azevedo, 2010 U.S. Dist. LEXIS 84591 (E.D. Cal. July 21, 2010):

Resolution of this motion therefore turns on whether by his entry onto the National Wildlife Refuge to hunt, Azevedo thereby gave his implied consent to a search for purposes of enforcing all applicable laws and regulations. The government argues that hunting in general is a heavily regulated activity and that all hunters are aware of compliance checks. The government also argues that various provisions of Title 50 C.F.R., state law, brochures, training booklets, and the “Harvest Record” permit issued to those hunting at the Colusa National Wildlife Refuge advise hunters of what they may and may not do (including that they may not possess controlled substances) and that they may be subject to ejection if they violate those provisions. Thus, the government concludes, just like an airline passenger who elects to fly thereby subjects himself to search upon entering the security checkpoint outside the gate area, defendant AZEVEDO had two options: enter the refuge and subject himself to possible search or not hunt. The government’s argument misses the mark and is unpersuasive.

Where it is clear that the stop was justified, the standing question is moot. United States v. Houston, 2010 U.S. Dist. LEXIS 84438 (W.D. Tex. August 16, 2010).*

There was probable cause for issuance of four search warrants where the probable cause for the arrest was included in the affidavit for the warrants. The CI was corroborated and had a history with the officers. United States v. Ortega, 2010 U.S. Dist. LEXIS 84715 (D. Minn. May 25, 2010), adopted 2010 U.S. Dist. LEXIS 84706 (D. Minn. August 16, 2010).*

The defendant’s vehicle was lawfully searched and towed, but the scope of inventory was clearly pretextual, and cocaine found under the trunk carpet is suppressed. State v. Wells, 2010 Ohio 4000, 2010 Ohio App. LEXIS 3404 (8th Dist. August 24, 2010):

[*P13] An inventory search conducted with an investigatory intent and not in the manner of an inventory search does not constitute an inventory search. State v. Seals, 8th Dist. No. 90561, 2008 Ohio 5117, P28, citing Caponi, supra. It is apparent that Officer Yasenchack used the inventory search as a “pretext” for searching for more evidence. If he suspected evidence was in the wheel well, he should have obtained a search warrant to inspect it. The vehicle was not at risk of being driven away because, as Officer Yasenchack testified, it was to be towed to a secured police parking lot.

[*P14] We do not find the State’s argument that the “automobile exception” to the warrant requirement allowed Officer Yasenchack to search the wheel well persuasive. The officer specifically stated that he performed an inventory search of the vehicle. Further, the prosecutor argued to the trial court that this was a “standard search of an automobile lawfully towed.”

The stop in this case, with guns drawn and commands to show hands, was not a situation where the suspects were “free to leave.” State v. Mayberry, 2010 Ohio 4081, 2010 Ohio App. LEXIS 3458 (2d Dist. August 30, 2010)*:

[*P27] The threatening presence of several officers, the officer’s wearing of a uniform, the officer’s display of a weapon, and the officer’s use of language or a tone of voice conveying that compliance is compelled are among various factors that indicate that an encounter is not consensual. State v. Saunders, Montgomery App. No. 22621, 2009 Ohio 1273, P16, quoting State v. Schott (May 16, 1997), Darke App. No. 1415, 1997 Ohio App. LEXIS 2061. Officer Dedrick’s conduct of approaching the vehicle with his weapon drawn and ordering the occupants to show their hands, along with Officer Gustwiller’s subsequent orders to Mayberry, constituted a display of authority such that the four individuals would not have believed that they were free to leave but, instead, that they were compelled to comply with the officers’ orders. Accordingly, upon exiting the cruiser, the officers initiated an investigatory detention, which was lawful only if they had a reasonable and articulable suspicion of criminal activity when the detention began.

[posted 8/31–I had to get to court yesterday]

The government’s failure to support the CI in an affidavit for a search warrant for a package was not material because probable cause was otherwise shown, and the good faith exception would apply. Besides that, it is highly unlikely that the defendant even has standing to contest a search of a package that was neither sent by nor to the defendant. This latter issue is not decided, but only because the other issue was determinative. United States v. Contreras, 2010 U.S. Dist. LEXIS 84571 (D. Mass. August 18, 2010).*

Defendant passenger had standing to challenge the stop of the vehicle (which was with reasonable suspicion of a traffic offense), but not its search. United States v. Cruz-Chavez, 2010 U.S. Dist. LEXIS 84172 (D. Kan. August 17, 2010)*:

4. The court shall begin with the issue of standing. The government has only challenged the standing of the passenger, Toscano-Burgueno, to object to the car stop. During a traffic stop, a passenger is “seized” for Fourth Amendment purposes and thus has standing to challenge the validity of the stop at issue. Brendlin v. California, 551 U.S. 249, 251, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). However, the passenger’s right to contest a subsequent search not of his or her person but the vehicle remains subject to analysis under Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). United States v. Cortez-Galaviz, 495 F.3d 1203, 1206 (10th Cir. 2007). In Rakas, the Supreme Court held that a passenger who asserts neither a possessory nor a property interest in a vehicle “would not normally have legitimate expectation of privacy” in the vehicle protected by the Fourth Amendment. Rakas, 439 U.S. at 148-49.

Officers approaching defendant’s house from the street up the driveway that led to a smell of fresh marijuana did not violate curtilage. “Even assuming the area of the driveway where the Agents detected the smell of cannabis was within the curtilage of the Banana Residence, the Agents still did not violate the Defendants’ Fourth Amendment rights. It is well established that ‘the Fourth Amendment is not “implicated by entry upon private land to knock on a citizen’s door for legitimate police purposes unconnected with the search of the premises.”’” United States v. Neth, 2010 U.S. Dist. LEXIS 83985 (M.D. Fla. March 30, 2010).*

A U.S. Forest Service Law Enforcement Officer was patrolling the El Dorado National Forest and nearly had an accident with the defendant. When they stopped on the snow covered road, she noticed that he looked like he was stoned. After getting his ID (no license) she came back and asked about marijuana, which he admitted he had. The stop and question was valid. United States v. Mitchell, 2010 U.S. Dist. LEXIS 84662 (E.D. Cal. July 16, 2010).*

Defendant filed a 2255 against defense counsel for, inter alia, not filing a motion to suppress. He did not show that he would not have pled guilty but for counsel’s not filing a motion to suppress which would have been denied anyway. Payton v. United States, 2010 U.S. Dist. LEXIS 83920 (E.D. Tex. June 30, 2010).*

The Center for Constitutional Rights issued a press release this afternoon concerning the fact that the NYPD’s stop and frisk statistics show a 21% increase over the same period last year.

CCR has found significant racial disparities for stop-and-frisks over the last decade based on NYPD data turned over by court order. CCR, which represents victims of the NYPD’s racially discriminatory stop-and-frisk policies in a class action lawsuit, will receive more comprehensive data than the summary numbers released to the City Council yesterday and will provide those results as soon as they are available.

Meanwhile, the preliminary numbers reported indicate a 21 percent rise in the number of New Yorkers being stopped by the police over the same period last year, with 88 percent of the New Yorkers stopped being Black and Hispanic. By contrast, from 2005 to 2008, approximately 80 percent of total stops made were of Blacks and Latinos, who comprise approximately 25 percent and 28 percent of New York City’s total population, respectively.

. . .

Earlier data and other documents are available at www.ccrjustice/stopandfrisk. A ruling by U.S. District Judge Shira Scheindlin required the NYPD to make public all raw stop-and-frisk data from 1998 through the present in relation to the case, Floyd v. City of New York.

Neither the Fourth Amendment (Grubbs and Groh) nor state law requires that a search warrant (here for a blood draw) requires that the warrant be in the hand of the executing officer. It may be “foolhardy,” but it is not unconstitutional. State v. Breuer, 2010 Iowa App. LEXIS 838 (August 11, 2010).

In United States v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987), the Eighth Circuit was presented with the argument that “it was unreasonable for law enforcement officials to commence the searches prior to the arrival of a warrant.” The court disagreed.

While it may be foolhardy to proceed in the absence of the physical presence of the warrant, it is not unconstitutional. Nothing in the [F]ourth amendment or Rule 41 requires that the search warrant be physically present prior to commencing the search. …

“The Fourth Amendment says nothing specific about formalities in exercising a warrant’s authorization,” it speaks to the manner of searching as well as to the legitimacy of searching “simply in terms of the right to be ‘secure … against unreasonable searches and seizures.’” United States v. Banks, 540 U.S. 31, 35, 124 S. Ct. 521, 524-25, 157 L. Ed. 2d 343, 352 (2003). Instead, the issue is one of reasonableness, which is determined on a case-by-case basis. Id. at 35-36, 124 S. Ct. at 525, 157 L. Ed. 2d at 352.

. . .

We agree with the [Grubbs] Court that the right of a person to be free from unreasonable searches and seizures is protected not by the person’s right to argue with law enforcement during execution of a warrant, but “by interposing, ex ante,” the “deliberate, impartial judgment of a judicial officer … between the citizen and the police,” and “by providing, ex post, a right to suppress evidence improperly obtained.” Id. at 99, 126 S. Ct. at 1501, 164 L. Ed. 2d at 205.

The police kept defendants from their house and home office while they procured a search warrant, 33 hours later. The officer getting the search warrant was not told to hurry it up. One defendant was an insulin-dependent diabetic, and officers would not permit him access to get it. The search and detention of the wife for the duration was unreasonable. United States v. Song Ja Cha, 2009 U.S. Dist. LEXIS 129278 (D. Guam February 19, 2009):

Applying the third factor to Mrs. Cha, the court notes that she was detained throughout the entire 33-hour period. Her possessory interest in her home can be said to be minimal. The same however, cannot be said regarding her possessory interest in the business establishment. While she may have been detained and arrested, she could have authorized the re-opening of the business and could have requested her husband to do so. Because of the seizure, the business was not able to open. While the allegations that she operated a prostitution house constitute a criminal offense, the opening of the lounge for the sale of alcoholic spirits is not illegal.

Finally, in applying the fourth factor the court finds 33 hours until procurement of the search warrant to be unreasonable. In McArthur, the Court found two hours to be a reasonable time frame in restricting the defendant from reentering his home without a police escort while the police diligently sought the warrant. In this case, it appears from the testimony presented that the police officers did not know they had a duty to diligently move to secure the search warrant. More importantly, Officer Perez, the officer tasked with drafting the search warrant, did not know that he had a duty to diligently pursue the drafting and eventual approval of the warrant by a detached magistrate. He had facts within his knowledge with which he could draft a search warrant with probable cause since he was at the briefing on the morning of January 13 when certain information was first divulged. But not knowing there was a sense of urgency, he waited until the police reports were all completed before he began drafting the warrant application. Officer Perez cannot solely be faulted for delaying the drafting of the information because he did not know there was urgency to do so. He testified that had he known there was a sense of urgency, he would have acted much sooner. But there was a sense of urgency and a duty of diligence because the possessory interests of Mr. Cha to the home and Mrs. Cha to the business enterprise were being interfered with by the police.

A gap in the information linking an IP address to defendant was sufficient to make a Franks showing for a hearing. The officer stated something as a fact when it was his deduction. The government does not get to rehabilitate the affidavit; all that can be done is strike the offending information. The information was necessary to the finding of probable cause, and the magistrate’s grant of the motion for a Franks hearing. United States v. Nelson, 2010 U.S. Dist. LEXIS 70317 (D. S.D. July 12, 2010):

Similarly, in this case, Agent Boone misled the issuing judge by misrepresenting his own analysis and conclusion regarding the identity of the subscriber associated with the suspected file-sharing activity as a factual statement made by Knology. Knology did not definitively state the identity and address of the subscriber of IP address 216.16.82.227 on the dates and times requested in the subpoena, but rather provided DHCP logs and data on which Agent Boone drew conclusions about the identity of the subscriber at the relevant time. Thus, like in McCain, Agent Boone’s affidavit was false in two related ways: first, it falsely stated that Knology determined that Nelson was the subscriber at the relevant times, and second, it misrepresented Agent Boone’s interpretation of the DHCP logs and other relevant data as a direct factual statement by Knology.

. . .

Despite Agent Boone’s sincere belief that he accurately determined and stated in the affidavit the identity of the subscriber of the IP address engaging in distribution of child pornography, he recklessly misrepresented the source of this conclusion and made it impossible for the issuing judge to determine whether there was probable cause to search Nelson’s home. Without this false statement, Agent Boone’s affidavit does not establish probable cause to search Nelson’s home or vehicle, and as a result, it is

ORDERED that the court adopts the Report and Recommendation of Magistrate Judge Simko (Docket 27) as supplemented herein, and therefore, Nelson’s motion to suppress evidence and request for a Franks hearing (Docket 17) is granted.

Defendant who “stayed the weekend” sometimes and helped out the occupant with her bills had standing to challenge a search of the premises. The fact he had not spent the night before was not determinative. It was apparent he could come and go at will. The warrantless entry, however, was based on exigent circumstances. Commonwealth v. Bostick, 2008 PA Super 233, 958 A.2d 543 (2008):

[*P18] It is apparent from the court’s remarks that it accepted the Commonwealth’s argument that Appellant had to establish that he was staying on the premises as an overnight guest at the time the incident occurred in order to establish a reasonable expectation of privacy. However, we can find no Pennsylvania case that supports this proposition. Instead, it appears that in several federal cases (e.g., Fields, Rhiger, and Pollard), the court did not find this factor, i.e., whether Appellant was an overnight guest at the time of the incident, to be dispositive of the issue of a reasonable expectation of privacy. 8 Even in Ferretti, where we determined that the defendant had no reasonable expectation of privacy, we found it relevant that the appellant had not “in the past or recently” stayed overnight on the premises, Ferretti, 577 A.2d at 1381, thereby giving rise to the implication that in Pennsylvania, staying overnight at the time of the search or arrests is not a dispositive factor in establishing a reasonable expectation of privacy. Rather, it is incumbent on the suppression court to consider the totality of the circumstances in each case when addressing the issue of a reasonable expectation of privacy in the searched premises.

[*P19] We conclude that the totality of the circumstances of record in this case reveal that, although Appellant may not have been staying at the residence on the day of the arrests, he stayed overnight there on the weekends, contributed to the household bills (albeit a small amount), received mail there, ate meals there, and had laundry done there on occasion. Police surveillance on the day of the incident also gives rise to the inference that Appellant had free entry into the residence as he “had been going in and out of the property the entire time of the surveillance.” N.T. Hearing at 31. Certainly, Appellant was also involved in illegal activities conducted on the premises. See Govens, 632 A.2d at 1319. Under these circumstances, we conclude that Appellant was more than a “casual visitor” who had both a subjectively and objectively reasonable expectation of privacy in the searched premises.

After 12 hours of searching under a search warrant finding 65-75% of the files covered by the search warrant, the government agents seized file cabinets and left to search off premises. That off-site search took 160 hours. That was not unreasonable. United States v. Western Titanium, Inc., 2010 U.S. Dist. LEXIS 79508 (S.D. Cal. August 6, 2010):

Nor does the Court believe that the removal of the file cabinets from the premises by Agent Dao demonstrates a flagrant disregard for the terms of the search warrant. Agents had already determined that 65-75% of the documents within similar file cabinets fell within the scope of the search warrant before the cabinets were removed. The off-site search of the cabinets consumed approximately 160 hours while agents reviewed the documents to determine whether they fell within the scope of the warrant. Given that significant effort was expended in attempt to comply with the terms of the search warrant, the Court does not find that the agents flagrantly disregarded the search warrant by ignoring its terms or engaging in indiscriminate fishing expeditions. Accordingly, Defendants’ request for suppression of all of the documents seized pursuant to the search warrant is denied.

The stop of the vehicle defendant was riding in was valid, and the continuation of the stop was de minimus. A dog alerted on the passenger side, and no drugs were found in the car. It was reasonable to then search the defendant’s person. United States v. Fox, 2010 U.S. Dist. LEXIS 70327 (D. Alaska July 13, 2010).*

Defendant’s Fourth Amendment rights were not violated by recording conversations from the jail. Defendant also raised a First Amendment free speech claim that monitoring the phone calls chills free speech rights to complain about the criminal charges. Even if it applied, the exclusionary rule does not apply to First Amendment violations. United States v. Korbe, 2010 U.S. Dist. LEXIS 70419 (W.D. Pa. July 14, 2010).*

Defendant’s § 2255 Fourth Amendment claim by an amended petition was time barred. The record showed that he was aware of the claim within the one year limitations period, not as a newly discovered claim. Casseday v. United States, 2010 U.S. Dist. LEXIS 70465 (D. D.C. July 13, 2010).*

Defendant who did not live in the house searched had no standing to challenge the search of the place. He kept stuff there and he had a longstanding relationship with those who lived there, but it wasn’t his place, so no standing. United States v. Tamborello, 2010 U.S. Dist. LEXIS 71313 (N.D. Iowa July 15, 2010).*

Defendant’s IAC claim fails that defense counsel did not move to dismiss the case because the officers allegedly lied to him during the search. Even if the issue was challenged as a suppression motion, defendant would not have prevailed, so defense counsel had no basis for moving to suppress. Philson v. United States, 2010 U.S. Dist. LEXIS 70896 (E.D. N.C. July 13, 2010).*

The affidavit for the search warrant for child pornography on defendant’s computer was issued with probable cause. A detailed description of the alleged child pornography is not required as it is with adult pornography because of the lack of First Amendment protection. United States v. Werlein, 2010 U.S. Dist. LEXIS 70725 (D. Minn. June 24, 2010).*

Defendant’s stop was because of a license plate light. When he got to the driver’s window, he noticed the strong odor of air freshener, the passenger window would not go down, and they had unusual travel plans. This was reasonable suspicion to keep talking. United States v. Collins, 2010 U.S. Dist. LEXIS 70334 (E.D. Tex. June 21, 2010).*

Defendant failed to show in his § 2255 that the failure of defense counsel to file a motion to suppress the search of her computers in a fraud case would have succeeded. No record that was admitted into evidence at the trial was outside a common understanding of the search warrant. Also, there was no search protocol for execution of the warrant, and there is no requirement that there be one. Borden v. United States, 2010 U.S. Dist. LEXIS 71406 (M.D. Fla. July 15, 2010).*

Defendant’s claim he signed a consent to search form in blank twice, initialing it 24 times, was incredible. United States v. Buckhanon, 2010 U.S. Dist. LEXIS 71388 (W.D. Tenn. May 19, 2010)*:

Moreover, the court finds Buckhanon’s testimony to be unbelievable in its entirety. It strains credulity to believe that Buckhanon would initial a blank document 24 times and sign it twice if there were no answers filled in the blank spaces. If he was concerned about what he was signing, his mother, sister, and niece were present and could have witnessed the document. Plus, the answers written on the Rights Waiver Form contain a level of detail that would be difficult for the officers to fabricate.

In a qualified immunity case, the plaintiff cannot show that this right to be free from subpoena of personal emails was well established, particularly in light of Quon which chose not to decide the broad question of privacy in electronic communications as the technology evolves. Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010)*:

As these varied cases suggest, the questions of whether Fourth Amendment principles governing a search of Rehberg’s home also should apply to subpoenas sent to a third-party ISP for electronic data stored on the third-party’s server, and whether Rehberg had a reasonable privacy expectation in the contents of his personal emails sent voluntarily through that third-party ISP, are complex, difficult, and “far-reaching” legal issues that we should be cautious about resolving too broadly. As the Supreme Court advised us, “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” [Quon] at 10. Given the lack of precedent, we now question whether it would be prudent in this case and on this limited factual record to establish broad precedent as to the reasonable privacy expectation in email content. Moreover, because this is a qualified immunity case, we need not reach the underlying constitutional issue. Instead, we can resolve this case narrowly, cf. id. at 1, because at a minimum Rehberg has not shown his alleged constitutional right was clearly established.

Defendant’s traffic ticket took 17-20 minutes. He was free to leave, and the officer asked for consent, which defendant first hesitated about and the officer clarified, and he consented. United States v. Mohammed, 2009 U.S. Dist. LEXIS 129055 (M.D. Fla. June 29, 2009).*

Defendant’s traffic ticket took 16 minutes. As he was walking back to his car, he was asked for consent, which he gave. United States v. Cruz-Guzman, 2009 U.S. Dist. LEXIS 129013 (M.D. Fla. May 21, 2009).*

One could say that the defendants here were just stupid for consenting, which might be only a little true. Instead, I believe all these type cases involve the officer exploiting every motorist’s legal need to cooperate during a traffic stop, which his hardly ever discussed in the cases. While the officer may say the defendant is free to go, the defendant doesn’t necessarily know it even if the officer tells him he can go but then re-engages him in conversation. At that point, the defendant has to believe that his permission to leave has been revoked. Just how truly “free to leave” are you when the officer keeps talking? “He said I could go but now obviously I can’t because he’s asking questions.” How “free” is that?

This is truly exploitation of a fiction in both fact and the law, and it is sorely disappointing to read these cases with the officer exploiting the motorist to keep talking to get consent or reasonable suspicion. You’d have to read the case law to know you were free to leave, and who does that except us lawyers?

Defendant was charged as a result of a search warrant executed on computers and a server where he worked. It is clear he had no reasonable expectation of privacy in the computer files to have standing to challenge whether the search was overbroad or became a general warrant. United States v. Nagle, 2010 U.S. Dist. LEXIS 90817 (M.D. Pa. September 1, 2010):

1. Computers

The evidence presented at the suppression hearing makes it clear that during its search of the SPI and CDS premises, the Government imaged computers belonging to SPI/CDS from multiple locations throughout the 28-acre campus. (See Suppression Hr’g Tr. 80, 183.) Specifically, the computers imaged were located in the private work space of employees other than Defendant, and Defendant testified that he never used any other employee’s computer. (Id. at 183.) Certainly, Defendant’s reasonable expectation of privacy cannot be said to include these areas. See, e.g., United States v. Triumph Capital Group, Inc., 211 F.R.D. 31, 54 (D. Conn. 2002) (CEO of company lacked standing to challenge search of company laptop computer used exclusively by another employee). Moreover, Defendant testified that his laptop was not at the office on the day of the search and was not imaged. (Suppression Hr’g Tr. 190.) Finally, Defendant testified that the company did not monitor what its employees did on their computers, it did not have a computer use policy, and he was unaware of what was on any of these machines. (Id. at 183, 185.) These facts unequivocally demonstrate that Defendant knew nothing—except in the most general sense that the computers were used for work—about what was stored on the computers seized or how they were used; thus, he had no personal expectation of privacy in any of the information that was imaged by the Government. See, e.g., Triumph Capital Group, Inc., 211 F.R.D. at 54 (CEO of company lacked standing to challenge search of company laptop computer used exclusively by another employee).

2. Server

The same is true for the SPI and CDS server. The evidence at the suppression hearing demonstrated that the server stored various types of electronic files and could be accessed by all of the employees with accounts on the companies’ joint computer system. (Suppression Hr’g Tr. 162, 195, 206.) The server was partitioned into different drives, at least one of which was a public drive that was available to anyone who had access to the server. (Id. at 181, 206.) The other drives could only be accessed by certain employees in the various departments within SPI and CDS; however, there was scant evidence about who had access to which drives. The only specific testimony was by Fink, who testified that five employees, including himself and Defendant, had access to all of the drives on the server. (Id. at 192.) However, Defendant himself testified that he did not know how the server worked or what was stored on it, except in the most general sense. (Id. at 181.) While Defendant also testified that the server was private, and that the companies took security measures to make sure that no one from the outside would have access, (id. at 187-88), there was no testimony that Defendant took steps to ensure that his information or user folder remained inaccessible to others.