When asked whether defendant had any “guns, drugs, or narcotics” she handed over a pill bottle. That was implicit permission to search it. Brown v. United States, 2009 D.C. App. LEXIS 600 (November 25, 2009).*

Defense counsel filed an Anders brief, and defendant claimed in his brief that defense counsel was ineffective for not challenging the search warrant. While that was not the time nor place to first challenge the search warrant on that ground, it was apparent from the record that the warrant was valid. State v. Johnson, 28 So. 3d 1125 (La. App. 5th Cir. 2009).*

The search of defendant’s car was valid as an inventory and search incident was not an issue. On appeal, defendant sought to expand his argument that the inventory did not follow standardized procedures, but that argument was not made below and could not be made now. State v. Lopez, 2009 NMCA 127, 223 P.3d 361 (2009), certiorari denied, State v. Lopez, 224 P.3d 1257 (N.M., Oct. 6, 2009).*

A search warrant for drugs permitted a search of defendant’s purse when she was living there. State v. Barbosa-Quinones, 2009 Iowa App. LEXIS 1562 (November 25, 2009).*

Reasonable suspicion is not required to call in a license plate for an NCIC check. Suppression order reversed. State v. Herrera, 2010 NMCA 6, 224 P.3d 668 (2009), Certiorari Denied, State v. Herrera, 227 P.3d 90 (N.M., Dec. 11, 2009):

[*12] We agree with this reasoning of the Ninth and Tenth Circuits. Because a license plate is located in plain view, a license plate check is not intrusive, and because the United States Supreme Court has held that VIN searches are not Fourth Amendment violations because of the lack of a reasonable expectation of privacy, see Class, 475 U.S. at 118-19 (holding that “as part of an undoubtedly justified traffic stop,” officers checking for the VIN in order to run a search is “sufficiently unintrusive to be constitutionally permissible in light of the lack of a reasonable expectation of privacy in the VIN”), license plate checks are not searches under the Fourth Amendment. Therefore, they do not require reasonable suspicion of criminal activity. As such, Investigator Hubbard did not need reasonable suspicion to conduct a license plate check on Defendant’s car, and the ensuing investigation, including the VIN check and questioning of Defendant to explain the discrepancy discovered from the license plate check, was permissible. We additionally note that although “police may not randomly stop a vehicle solely to check a driver’s license or car registration because a seizure of this nature is arbitrary,” Reynolds, 119 N.M. at 385, 890 P.2d at 1317 (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979)), there was no seizure of Defendant in this case because Investigator Hubbard conducted the NCIC check while Defendant was inside the building.

. . .

[*14] We reverse the district court order granting Defendant’s motion to suppress and remand for the district court to answer the issues raised below regarding whether evidence obtained after any of the following actions should be suppressed: (1) the alleged seizure of the gun, (2) the question posed to Defendant regarding his felony status, or (3) the inventory search after Defendant’s arrest.

Officer’s plain view of a “chunk” of drugs the size of a pinky fingernail seen from outside the car looking in to a messy floorboard could not be “immediately apparent” for plain view. United States v. Williams, 2010 U.S. Dist. LEXIS 88850 (N.D. Ohio August 27, 2010):

Trooper Greene testified that he was standing outside the car with the door closed looking inside when he observed the “chunk.” [Doc. 26 at 25.] He further testified that the “chunk” was “slightly smaller than [a] pinky fingernail.” [Doc. 26 at 20.] Other testimony showed the interior of the vehicle was messy with torn carpeting and that discarded items were scattered throughout the car. [Exhibit DX3.] The Court finds that from Trooper Greene’s vantage point, standing outside of a sport utility vehicle with the door closed and peering in through the window into a messy vehicle, the incriminating character of a fingernail-sized piece of plant matter could not be “immediately apparent.” From the distance of a few feet it would be impossible for even an experienced officer to determine that a “chunk” of plant matter on the floorboard of a vehicle only a few millimeters in size was in fact marijuana, and not a piece of soil, grass, or other material.

Because the incriminating nature of the “chunk” could not have been immediately apparent to Greene at the time it was in his “plain view,” Greene did not have the authority to seize it under the plain view exception. See McLevain, 310 F.3d at 442 (reversing trial court’s denial of motion to suppress because incriminating nature of a twist tie, a cigarette filter, a spoon with residue, and a bottle, which experienced officers believed to be associated with methamphetamine use, was not immediately apparent); see also Arizona v. Hicks, 480 U.S. 321, 324-26, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987) (police, whose entry into home was premised on exigent circumstances related to gunfire, violated Fourth Amendment by moving stereo to read and record its serial numbers because moving stereo was “unrelated to the objectives of the authorized intrusion,” and incriminating character of stereo was not immediately apparent).

Defendant’s conviction was reversed by the Sixth Circuit for a violation of Gant. On remand, the government sought to reopen the suppression hearing to show that inevitable discovery would have saved the search because it would have been found in an inventory, but it requested that relief from the Sixth Circuit which did not do so. The government had its chance to present alternate theories and failed. Motion to suppress granted on remand. United States v. Jackson, 2010 U.S. Dist. LEXIS 1699 (S.D. Ohio January 11, 2010).*

Defendant’s mother consented to a search of the premises by police after one of them, a firefighter-police officer combination, entered the premises on a smoke call and looked through the house for a fire, finding a grow operation on the top floor. After there was no fire found, he left the house, informed police officers outside, and he removed his fire gear and got supervisor permission to act as a police officer. Defendant’s mother was asked for consent and told she did not have to, and she still validly did. Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87920 N.E.2d 45 (2010), Review denied by Commonwealth v. Farnsworth, 456 Mass. 1102, 922 N.E.2d 153 (2010).

Defendant had no reasonable expectation of privacy in a cell phone that was not actually his and was used by others and left in a house that the police searched. Videos on the cell phone depicted defendant. State v. Thunder, 2010 SD 3, 777 N.W.2d 373 (2010).*

Defendant had standing in the common areas of a pleasure craft the same as joint users have in a hotel room. However, he effectively abandoned the boat after the first search and gave up his reasonable expectation of privacy. United States v. Franki-Irizarry, 2009 U.S. Dist. LEXIS 125722 (D. P.R. August 21, 2009).*

While prosecutors only have qualified immunity for investigative functions, issuing subpoenas for third party held information did not violate plaintiff’s Fourth Amendment rights, so they prevail. Rehberg v. Paulk, 598 F.3d 1268 (11th Cir. 2010).*

Officers had probable cause to arrest defendant for a felony, and her search incident was justified. United States v. Bell, 692 F. Supp. 2d 606 (W.D. Va. 2010).*

Defendant was handcuffed when he was stopped, but, on the totality of circumstances, his consent was valid. United States v. Coppedge, 369 Fed. Appx. 338 (3d Cir. 2010) (unpublished).*

Have any of you noticed the sudden flurry of news stories in the last week, and today on CNN Headline News, about the Ninth Circuit’s United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), like it just happened yesterday? It was January 11th, posted here.

Other sleeping news organizations just noticing this 7½ month old decision are:

• CNN, August 27: Court allows agents to secretly put GPS trackers on cars

• FoxNews August 27: Court Allows Warrantless GPS Tracking

• All headline news, August 27: Ninth Circuit Appeals Court Allows Warrantless GPS Tracking

OPB News had it a week later on January 19: Ninth Circuit Court Allows GPS Surveillance Technique.

None of them bother to mention United States v. Maynard from the D.C. Circuit a few weeks ago or People v. Weaver from New York’s highest court last year, posted here holding that there are government limits on GPS. It isn’t over their heads. Jeffery Toobin could do it, or the faux former judge on Fox with the plastic hair.

Where are you guys when “the right to be let alone” is swirling around and down the toilet? Where is the thoughtful analysis that should inform the public that this is going to the Supreme Court and what might happen there? Not from these people; not yet.

This was partly conceded in the Freep.com: We, the people, need to pay attention by Rochelle Riley in the Detroit Free Press:

We, the people, don’t always keep up with what federal agencies are doing.

So while we, the people, aren’t looking, we are losing our rights.

While we were sleeping, the U.S. 9th Circuit Court of Appeals — which covers California and eight other states — decided it was OK for agents from the federal Drug Enforcement Administration to sneak into a guy’s driveway and put a GPS tracking device under the bottom of his car. The wise judges said that the agents did not need a warrant because the guy’s driveway wasn’t private.

That kind of thinking — that you should have no expectation of privacy in your driveway — is now law in nine states.

And, Ms. Riley, as for the others, it isn’t that they were sleeping–their head was someplace else. Likely more “worried” about [read: fell for] any false political issues of the day designed to distract all of you from what is really going on in criminal justice, and it worked. It really worked.

Better late than never, apparently.

Pervasive Surveillance and the Future of the Fourth Amendment, by Russell D. Covey, 80 Miss. L. J. No. 4 (2010):

Abstract:
We are in a period of intense technological change. The continued explosive growth in technology has two major effects on the scope and application of the Fourth Amendment. First, the diffusion of powerful new technologies like DNA synthesis and high-powered computing makes it far easier than ever before for ill-meaning groups or individuals to obtain powerful and destructive weapons. Regardless of who is perceived to desire such weapons, the very existence and potential use of such weapons poses a permanent and growing threat to national security. Second, with the development of new technologies, governments are finding it increasingly cheap and easy to conduct intrusive surveillance on their populations and to obtain data and information about individuals in quantities and in detail never before imagined. For both of these reasons, states are increasingly likely to adopt strategies of pervasive surveillance.

Fourth Amendment doctrine has failed to respond adequately to these trends. First, Fourth Amendment law – mainly, the so-called “third party doctrine” – fails to adequately protect privacy in light of new technology. Second, the few limits that have been placed on government use of technology threaten the ability of the state to conduct the type of surveillance necessary to effectively combat the risks posed by terrorism. The solution suggested is to shift the focus of the Fourth Amendment from its longstanding concern with acquisition of information to its use. Current practices already suggest that people generally are less concerned about revealing private information to others under appropriate circumstances than they are in ensuring that these limited disclosures are not misused by their recipients. In a future world where dangerous technologies are cheap and easily obtained, the critical problem will be to safeguard the population through carefully targeted surveillance, while ensuring that such surveillance cannot be used for pretextual or politically oppressive purposes.

An FBI Agent trolling in a Yahoo! child pornography chat room was able to tell that “markie_zkidluv6” had uploaded child porn. An administrative subpoena was served on Yahoo! for the subscriber information, and information was used to get a search warrant for Bynum’s a/k/a “markie_zkidluv6″‘s house. There manifestly is no reasonable expectation of privacy in one’s subscriber information with an internet service provider. Also minor date discrepancies in the affidavit for the search warrant were not material to the finding of probable cause from the fact of the uploads to his IP address. United States v. Bynum, 604 F.3d 161 (4th Cir. May 5, 2010), certiorari denied 2010 U.S. LEXIS 4928 (U.S. June 14, 2010):

First, Bynum contends that the Government’s use of “secret” administrative subpoenas violated his Fourth Amendment rights. He offers no case law supporting this theory, and we have found none. “The ‘touchstone’ of Fourth Amendment analysis is whether the individual has a reasonable expectation of privacy in the area searched ….” [United States v. Breza, 308 F.3d 430,] at 433 (quoting Oliver v. United States, 466 U.S. 170, 177 (1984)). In order to demonstrate a legitimate expectation of privacy, Bynum “must have a subjective expectation of privacy, and … that subjective expectation must be reasonable.” United States v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997).

In this case, Bynum can point to no evidence that he had a subjective expectation of privacy in his internet and phone “subscriber information”—i.e., his name, email address, telephone number, and physical address—which the Government obtained through the administrative subpoenas. Bynum voluntarily conveyed all this information to his internet and phone companies. In so doing, Bynum “assumed the risk that th[os]e compan[ies] would reveal [that information] to police.” Smith v. Maryland, 442 U.S. 735, 744 (1979). Moreover, Bynum deliberately chose a screen name derived from his first name, compare “markie_zkidluv6” with “Marques,” and voluntarily posted his photo, location, sex, and age on his Yahoo profile page.

Even if Bynum could show that he had a subjective expectation of privacy in his subscriber information, such an expectation would not be objectively reasonable. Indeed, “[e]very federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.” United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (collecting cases).

No case yet disagrees, and, in light of Smith v. Maryland, there won’t be soon. The opinion does not reveal how the issue was presented to see if SCOTUS will be asked for review.

A Tennessee General Sessions court judge was not a court of record, but a search warrant issued by that court that results in evidence in federal court is not subject to suppression for that reason alone under Rule 41. United States v. Green, 2010 U.S. Dist. LEXIS 88325 (E.D. Tenn. July 2, 2010):

There was no evidence presented to support a finding that the search warrant would not have been issued had Johnson gone to a federal magistrate judge or that the search would have been less abrasive had he done so. In addition, there is no evidence of intentional or deliberate disregard of Rule 41. Johnson testified he routinely conducts narcotics investigations as a detective for the Marion County Sheriff’s Department and, in doing so, he routinely obtains search warrants from the Marion County General Sessions Judge. The investigation involving Charles Green was initiated as part of his duties with the Marion County Sheriff’s Department, and Johnson was simply following his normal routine in obtaining the search warrant at issue from the General Sessions Judge. There was no intentional attempt to skirt Rule 41. Accordingly, even if Rule 41 did apply, the exclusionary rule does not.

Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083 (2010):

In the Information Age, an increasing amount of personal information is contained in records maintained by Internet Service Providers (ISPs), phone companies, cable companies, merchants, bookstores, website, hotels, landlords, employers and private sector entities. Many private sector entities are beginning to aggregate the information in these records to create extensive digital dossiers.

The data in these digital dossiers increasingly flows from the private sector to the government, particularly for law enforcement use. Law enforcement agencies have long sought personal information about individuals from various third parties to investigate fraud, white-collar crime, drug trafficking, computer crime, child pornography, and other types of criminal activity. In the aftermath of the terrorist attacks of September 11, 2001, the impetus for the government to gather personal information has greatly increased, since such data can be useful to track down terrorists and to profile airline passengers for more thorough searches. Detailed records of an individual’s reading materials, purchases, diseases, and website activity enable the government to assemble a profile of an individual’s finances, health, psychology, beliefs, politics, interests, and lifestyle. This data can unveil a person’s anonymous speech and personal associations.

On Prison Planet: 4th Amendment Violating Mobile X-Ray Scanners Hit The Streets.

As we warned at the beginning of the year, X-ray body scanners currently being used and abused in airports across the world are set to hit the streets as American Science & Engineering reveals that “more than 500 backscatter x-ray scanners mounted in vans that can be driven past neighboring vehicles to see their contents” have been sold to government agencies.

In January, we divulged how the ultimate end use of the body scanners would not be limited to airports, and that they were going to be rolled out on the streets as mobile units that would scan vehicles at checkpoints as well as individuals and crowds attending public events.

Dutch police announced that they were developing a mobile scanner that would “see through people’s clothing and look for concealed weapons” and that it would be used “as an alternative to random body searches in high risk areas”.

Another post on Network World with video.

Sometimes CNN is way behind the curve: See Court allows agents to secretly put GPS trackers on cars on the Ninth Circuit’s January GPS case and how easy it is to place a GPS.

Applying the Fourth Amendment to the Internet: A General Approach by Orin Kerr, 62 Stan. L. Rev. 1005 (2010). Full article here. First paragraph:

This Article proposes a general approach to applying the Fourth Amendment to the Internet. It assumes that courts will try to apply the Fourth Amendment to the Internet so that the Fourth Amendment has the same basic function online that it has offline. The Article reaches two major conclusions. First, Fourth Amendment protections online should depend on whether the data is content or non-content information. The contents of communications, like e-mail and remotely stored files, ordinarily should be protected. On the other hand, non-content information, such as IP addresses and e-mail addresses, ordinarily should not be protected. Second, courts should ordinarily require a search warrant if the government seeks to obtain the contents of protected Internet communications. Further, the scope of warrants should be based on individual users rather than individual accounts.

From the “too much time on their hands” category:

Cleveland will soon use high-tech trash containers with RFID chips to see if you are recycling. See High-tech carts will tell on Cleveland residents who don’t recycle … and they face $100 fine. The city will monitor your trash habits from the collection vehicle.

Ratted out by your trash container … If you don’t put the recycling bin out regularly, the trash police will seize your trash, search it for recyclables, and prosecute if you aren’t recycling. Containers bought with stimulus money, no less. And, in some cities, police and teachers are being laid off, but, in Cleveland, they are hiring.

The search incident of defendant’s cell phone when he was arrested on a warrant was unreasonable because there was no reason to believe that it was a weapon or that it contained evidence of the crime for which he was arrested. United States v. McGhee, 2009 U.S. Dist. LEXIS 129576 (D. Neb. June 19, 2009):

In today’s world, cell phones may contain a vast array of information which would be expected to be free from intrusion by the general public and the government. United States v. Finley, 477 F. 3d 250, 259 (5th Cir. 2007). As such, McGhee had a reasonable expectation of privacy in the contents of his cell phone. Consequently, the Fourth Amendment required law enforcement officers to obtain a warrant to search the cell phone unless a recognized exception to the warrant requirement existed. Among the well recognized exceptions to the warrant requirement is a search incident to arrest. United States v. Robinson, 414 U.S. 218, 224 (1973). Further, prior to April 21, 2009, upon arrest, the so-called automobile exception to the warrant requirement allowed the search of closed containers found in a vehicle without a warrant or further showing of probable cause. See New York v. Belton, 453 U.S. 454, 461 (1981) (noting “lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have”); United States v. Hrasky, 453 F.3d 1099, 1100 (8th Cir. 2006); United States v. Harris, 956 F.2d 177, 179 (8th Cir. 1992). Accordingly, the government argues search of the cell phone’s contents is legally justified when conducted incident to arrest for the purpose of searching for evidence of a crime.

. . .

In this case, McGhee was arrested pursuant to an arrest warrant based on a conspiracy to distribute drugs and for distribution of drugs during March 2008. The arrest took place in January 2009. Under these circumstances, it was not reasonable for the officers to believe a search of McGhee’s cell phone would produce evidence related to the crime for which he was arrested. Moreover, although McGhee had the cell phone within his immediate control, the cell phone did not present a risk of harm to the officers. Additionally, no evidence suggests the cell phone appeared to be or to conceal contraband or other destructible evidence. Therefore, the officers were not justified in conducting a warrantless search of McGhee’s cell phone as incident to his arrest. There is no evidence before the court regarding the circumstances of McGhee’s arrest which would otherwise justify the warrantless search of the cell phone.

Search incident is § 16.10A of the 2009 and 2010 Supplements (the latter forthcoming in the fall).

TSA has started “enhanced patdown” at the Las Vegas and Boston airports before trying it nationwide. It is reserved for those passengers who fail the metal detector, and it involves the front of the hand rather than the back.

The American Civil Liberties Union of Massachusetts is questioning whether the new technique is effective enough to justify what it calls a “seemingly constant erosion of privacy.”

Ever been frisked like that? It is intrusive. It is what Brussels airport security uses on those on American flights. The back of the hand doesn’t work for them? This will inevitably lead to more fishing expeditions into pockets.

The pleading requirements for a Fourth Amendment violation in a Bivens or § 1983 claim: Yopp v. United States DOJ DEA, 2010 U.S. Dist. LEXIS 85354 (E.D. Mich. August 19, 2010):

Plaintiffs claim that the search warrant executed at the Yopp residence was not based on probable cause, and that the search warrant affidavit, which supported issuance of the warrant and remains under seal, contained knowingly false statements. (Compl. ¶¶ 6, 9, 10.) Putting aside for a moment the unrebutted testimony of Agent Jeneary that all statements contained in the warrant affidavit were truthful, the Complaint fails on its face to satisfy the pleading standards established in Iqbal and Twombly that are necessary to state a Fourth Amendment claim. The Complaint gives no indication of the substance of the alleged false statements and Plaintiffs’ response to Defendants’ motion does nothing to enhance the factual content on the issue of the claimed lack of probable cause. In their response, Plaintiffs merely quote the legal principles governing claims of qualified immunity and “contend that they allege [in their Complaint] sufficient facts to give notice of the allegations and potential claims.” (Pls.’s Resp. 3.) Plaintiffs’ response does not even mention probable cause or the allegedly false statements. Plaintiffs’ Complaint merely states the legal conclusion that Defendants “lacked probable cause” and gave “false statements” in support of the warrant affidavit. Such “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, supra 129 S.Ct. at 1949. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1948. Plaintiffs’ allegations do not “nudge” their claims across the line from possibility to plausibility. Plaintiffs’ Complaint fails to state a claim based upon insufficiency of the warrant or lack of probable cause to issue the warrant.

A tipster who gave call back information was more believable. The officers here had reasonable suspicion. United States v. Williams, 2010 U.S. Dist. LEXIS 83568 (D. N.J. August 13, 2010).*

“The Court finds that Officer Campbell’s reasonable belief that he had smelled marijuana and Mr. Diop’s reaction to questioning about money were sufficient to provide that ‘necessary reasonable suspicion’ to prolong the stop.” There was also time involved in getting back a report on wants or warrants from dispatch. United States v. $275,000 in United States Currency, 2009 U.S. Dist. LEXIS 129529 (M.D. Tenn. March 16, 2009).*

Defendant was found to have consented to a search of his car. Despite a language barrier, he said “Si” and pointed to the car when consent was sought. United States v. Real, 2010 U.S. Dist. LEXIS 83383 (E.D. Mo. July 30, 2010).*

Officers received a citizen’s report of a man with a gun, and they went to investigate and saw the defendant with a gun in his waistband. That was reasonable suspicion for the stop. United States v. Watson, 2010 U.S. Dist. LEXIS 83564 (D. N.J. August 16, 2010).*

Local ordinance mandated government review of some medical records upon a “credible complaint” about itinerant doctors providing abortion services without backup medical care. The plaintiff doctor sued over application of the ordinance to him. The court held that the Fourth Amendment claim was not ripe for decision because there had been no effort to review his medical records. The ordinance may very well create a constitutional violation, but the case is not ripe to decide it. Ft. Wayne Women’s Health v. Bd. of Comm’rs, Allen County, Ind., 2010 U.S. Dist. LEXIS 82128 (N.D. Ind. August 11, 2010):

Dr. Klopfer insists his Fourth Amendment challenge is an as-applied challenge. The Board of Commissioners argues that the challenge isn’t ripe because no search has occurred yet, so Dr. Klopfer’s challenge must be considered a facial Fourth Amendment challenge to the ordinance, which courts disfavor. The distinction makes no difference here. Without a subpoena, unconsented searches of patient records would be unconstitutional. Because the case law is so developed on this question, no government official would be entitled to qualified immunity in a § 1983 suit if he or she conducted such an unconsented search. See Doe v. Heck, 327 F.3d at 517 (“At this juncture, however, we now make it clear that it is patently unconstitutional for government officials to search the premises of a private or parochial school and/or seize a child attending that school without a warrant or court order, probable cause, consent, or exigent circumstances.”); see also Camara v. Municipal Court, 387 U.S. at 528-529 (stating that search of private property without proper consent is unreasonable unless authorized by valid search warrant). Though the ordinance might be read as providing an instruction to conduct an unconstitutional search, it is appropriate to presume that government officials in Allen County will apply the ordinance in a constitutional manner and obtain either consent or a subpoena before undertaking a search of patient notification forms. See, e.g., United States v. Ramsey, 503 F.2d 524, 530-531 (7th Cir. 1974) (noting that normal application of statute wouldn’t ordinarily lead to Fourth Amendment violations and that unconstitutional applications of the statute were inhibited by other protections). In the absence of an actual unconstitutional search, Dr. Klopfer is unlikely to succeed on his Fourth Amendment claim.

The officer had a hunch there was contraband in defendant’s car, and he told her to turn it over under threat of arrest. This was not consent. United States v. Darling, 2010 U.S. Dist. LEXIS 81658 (N.D. Cal. July 14, 2010)*:

Defendant handed the putative contraband over to Ranger Jay only after he threatened arrest (as opposed to a citation) if she did not. Consent to a search is not voluntary when made under a threat of arrest. The Ninth Circuit has observed that even if an arrest had not yet been made, “consent obtained under threat of subjecting [Defendant] to such an arrest cannot be said to be voluntary.” United States v. Ocheltree, 622 F.2d 992, 994 (9th Cir. 1980); United States v. Soriano, 361 F.3d 494, 602 (9th Cir. 2004) (factors in assessing voluntariness of consent include whether defendant was in custody [see discussion below regarding arrest], whether Miranda warnings were given, and whether defendant was notified that she had a right not to consent).

Defendant ran from the police on a “show of authority” and abandoned his gun. A show of authority is not a seizure. United States v. Baker, 2010 U.S. Dist. LEXIS 81457 (S.D. Ohio July 1, 2010).*

Defendant’s traffic stop was valid, despite the subjective basis argued for it, so everything flowed from that. United States v. Raffa, 2010 U.S. Dist. LEXIS 81573 (E.D. Tenn. July 22, 2010).*