Information that was three months old about drug sales was not stale when it was conected to information from a neighborhood watch group meeting regularly that defendant was engaged in hand to hand sales from the premises. United States v. Powell, 2010 U.S. Dist. LEXIS 80320 (M.D. Fla. July 9, 2010).*

Defendant’s arrest in his car also justified the search of the car under the automobile exception, and Gant was not an issue. United States v. Dixon, 2010 U.S. Dist. LEXIS 80463 (W.D. N.Y. May 26, 2010).*

The officer was able to articulate a reasonable suspicion for a stop of the defendant for driving without a license based on eight month old information and defendant’s general pattern of driving without a license. United States v. Cherry, 2010 U.S. Dist. LEXIS 80435 (E.D. Pa. August 9, 2010).*

Defendant’s stop was based on his headlights not being on at dusk, and the officer approached and smelled burnt marijuana. United States v. Blair, 2010 U.S. Dist. LEXIS 80621 (E.D. Tenn. July 13, 2010).*

A hotel guest with the defendant had apparent authority to consent to a search of the room that they were in as a part of a conspiracy to import 100,000 ecstasy pills. In addition, under the S.D. N.Y.’s practice rule to provide an affidavit of facts in dispute it is the defendant’s burden to show a fact dispute to get an evidentiary hearing. Without the fact dispute, the court does not have to have a hearing. United States v. Cicuto, 2010 U.S. Dist. LEXIS 79674 (S.D. N.Y. August 6, 2010):

But since a third party’s authority to consent to a search does not turn on “technical property interest[s],” Randolph, 547 U.S. at 110, whether or not Mannu was registered with the hotel as a guest staying in Room 233 is nearly irrelevant. Indeed, other courts have recognized the authority of third-parties sharing hotel rooms to consent to a search of the room even if the room is not registered in their name. See United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir. 2004) (“Although Defendant was not the registered guest who had paid for the room, he had stayed there overnight, left his possessions there, and carried a key to the room. This supports a finding that Defendant had joint access or control over the room, and thus had actual authority to consent.”); United States v. Clark, 234 F. Supp. 2d 471, 476-77 (D. N.J. 2002) (third-party had actual authority to consent to search of hotel room where he stayed overnight despite not being a registered guest). Mannu was clearly an occupant of Room 233 with “access to the area searched” and “common authority over the area.” Davis, 967 F.2d at 87. As such, he had actual authority to consent to the search. Id. In light of Mannu’s authority to consent to the DEA agents’ search of the hotel room, Cicuto ran the risk that “a guest obnoxious to … [him] would be admitted in his absence,” Randolph, 547 U.S. at 110, and the search of Room 233 did not violate the Fourth Amendment.

Even if Mannu did not have actual authority, it was objectively reasonable for the DEA agents to believe that he had the authority to consent to a search of Room 233, and so he had apparent authority. Rodriguez, 497 U.S. at 188. Mannu “reasonably appeared to … [the DEA agents] to possess authority to consent to the search,” McGee, 564 F.3d at 139, because he told the informant he was staying at the Ramada; provided the informant with the hotel phone number and room extension; answered the phone in Room 233 both the day before and morning of the search; and was alone in Room 233 when the agents knocked on the door after arresting Cicuto. Since Mannu had apparent authority to consent to the search of Room 233, his consent and the search were valid.

The screened-in porch is an area not entitled to Fourth Amendment protection. Even it it was, the officers acted reasonably when they entered to knock on the door to the house inside the porch with an arrest warrant. United States v. Bergin, 2010 U.S. Dist. LEXIS 79583 (M.D. Fla. August 6, 2010):

Defendants argue that Deputy Roberts violated the Fourth Amendment when he entered the screened-in porch area to knock on the door. The Report and Recommendation correctly rejects this argument (Doc. #205, p. 29, n.6). Even in the absence of any type of warrant, officers may approach a residence and knock on the door for legitimate police purposes unconnected with a search of the premises, United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006); United States v. Bervaldi, 226 F.3d 1256, 1263 (11th Cir. 2000) and may tell the suspect to exit the residence. Knight v. Jacobson, 300 F.3d 1272, 1277-78 (11th Cir. 2002). The Supreme Court drew a “firm line” at the threshold of the home, not the front porch. Payton v. New York, 445 U.S. 573, 590 (1980); …. The Fourth Amendment was not violated when the officer entered the porch area, and defendants’ objections to the contrary are overruled.

Alternatively, the Court will assume that the screen-enclosed front porch constituted a portion of the home to which there was a reasonable expectation of privacy, either as curtilege, United States v. Dunn, 480 U.S. 294, 300 (1987), or as a component of the house itself within the meaning of Payton. See McClish v. Nugent, 483 F.3d 1231, 1241-42 (11th Cir. 2007) (Payton created a firm line delimiting a zone of privacy defined by the “unambiguous physical dimensions of an individual’s home.”) The Court will further assume that the screen door to that porch was the “threshold” referred to in Payton. With these assumptions, the officer’s entry into the screened-in porch was nonetheless lawful. There were two outstanding felony arrest warrants against Jason Bergin for violation of probation. The officers could lawfully enter the house to arrest defendant because there was a valid outstanding arrest warrant, the location was defendant’s residence, and defendant was inside the residence. United States v. Bennett, 555 F.3d 962, 965 (11th Cir. 2009); …. Therefore, even assuming the porch is a protected portion of the residence, the entry into the porch area was nevertheless lawful.

A CI used defendant’s computer to illegally download music from it, and he saw child pornography. He was not so incredible that the officers could not act on what he said. A search warrant properly issued on this independent information. United States v. Barefoot, 2010 U.S. App. LEXIS 16388 (3d Cir. August 5, 2010) (unpublished)*:

When detectives interviewed Beley and searched Barefoot’s apartment prior to the warrantless search, they were following up on Lukotich’s tip, which they would not have done had they believed Lukotich’s tip lacked credibility. Additionally, by telling police that he had violated Barefoot’s privacy to download music, Lukotich incriminated himself, which bolsters his credibility. Detectives had enough information from Lukotich’s tip and their interview with Beley linking Barefoot to the apartment to have been prompted to apply for a warrant. The court may presume law enforcement officers will act reasonably, absent evidence to the contrary. See United States v. Sicilano, 578 F.3d 61, 69 (1st Cir. 2009). Therefore, the District Court did not err in holding that there was an independent source for the evidence.

Plaintiff’s Bivens claim against IRS agents who searched his house for a tax violation seizing $19,000 which is what his wife said. At a bank, the counting machine only recorded $17,000, and that is what they obtained a cashier’s check for. He sued for theft of $2,000. The court held that the law was not clearly established that the alleged theft of $2,000 after a lawful seizure with a warrant violated the Fourth Amendment. Springer v. Albin, 2010 U.S. App. LEXIS 16324 (10th Cir. August 5, 2010) (unpublished).*

A woman flagged down a police officer about a disturbance in an apartment parking lot, and the officer went to investigate. He saw a car that did not belong in the parking lot, and he stopped it, and defendant’s conduct made him do a patdown. United States v. Tapia-Uribe, 2009 U.S. Dist. LEXIS 129404 (D. Neb. June 2, 2009):

Officer Turnbull considered several factors before making the decision to conduct a pat-down search of Tapia-Uribe. Those factors included: the late time of night, the urgent warning that officers investigate a disturbance, the high-crime nature of the area, the history of disturbances and drug complaints at the Nodaway Apartments, and the suspicious statements made by Tapia-Uribe and his companion.

Defendant’s traffic offense justified his stop. United States v. Williams, 2010 U.S. Dist. LEXIS 77993 (N.D. Okla. July 30, 2010).*

Defendant’s traffic offense justified his stop, and reasonable suspicion the continued detention. United States v. Gardenhire, 2010 U.S. Dist. LEXIS 77843 (D. Kan. July 30, 2010).*

Where defendant’s premises was searched with a search warrant, his claim that defense counsel did not challenge his consent was irrelevant. United States v. Thompson, 2010 U.S. Dist. LEXIS 78042 (E.D. Wis. June 30, 2010).*

Defendant’s guilty plea and plea agreement waived his post conviction challenge, and his claim that his search was invalid was barred by the agreement. Rader v. United States, 2010 U.S. Dist. LEXIS 77794 (S.D. Miss. June 30, 2010).*

On CNET News it is revealed that TSA officers are storing body scanner images. See Feds admit storing checkpoint body scan images, by Declan McCullagh. Remember, TSA sold us on being able to use scanners because the images would not be stored. The article mentions that EPIC has sued TSA over this revelation.

What of the body scan images of celebrities, the beautiful, the ugly getting passed around. Is that not a violation of our expectation of privacy?

Today’s Chicago Tribune: Hobbs DNA saga fuels debate on taking DNA samples after an arrest, instead of convictions. “Arrest in Virginia led to a DNA sample that may exonerate Illinois dad, but if the arrest had been made in Illinois, the DNA sample wouldn’t have been taken.”

Claimant was subjected to a cash seizure at Dulles airport after TSA saw “unknown masses” in x-ray of carry-on luggage. They opened his suitcase and saw it and photographed it, and he chose to leave the airport. The DEA was alerted. The claimant did not challenge the TSA snooping. United States v. $145,850 United States Currency, 2010 U.S. Dist. LEXIS 77686 (E.D. Va. July 30, 2010):

Arrington does not dispute that the initial inspection of his bags was constitutional. See United States v. DeAngelo, 584 F.2d 46, 47-48 (4th Cir. 1978) (holding that an airport x-ray search is a lawful search and also noting that a suspect’s voluntary entrance into a security line acts as consent to the search); see also, e.g., United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005), opinion amended on other grounds, 2005 WL 1661572 (9th Cir. July 18, 2005); U.S. v. Lopez-Pages, 767 F.2d 776, 778 (11th Cir. 1985). Thus, Arrington tacitly agrees that authorities were in a lawful vantage point to view the undefined masses in his suitcase. Well within the scope of this lawful search, the TSA agents permissibly inquired further and discovered that the masses were separately-wrapped bundles of money. Id. Provided that authorities had probable cause to believe the cash was contraband, the subsequent seizure of the cash visible in plain view was constitutional. See Payton, 445 U.S. at 587.

Can you say “Mission creep”? What if he challenged the TSA calling the DEA? Cash is not inherently contraband, and this is not TSA’s business. See this prior post and the links within it.

Defendant solicited an underage girl to come to his house for potentially nude picture taking, and this was sufficient probable case for issuance of a search warrant for the house for evidence of attempted production of child pornography. United States v. Davies, 2010 U.S. Dist. LEXIS 76778 (M.D. Pa. July 29, 2010)*:

This case is more like Vosburgh than Zimmerman. As in Vosburgh, the affidavit of probable cause set forth facts that would make it fairly probable, considering the totality of the circumstances, that evidence of attempted possession of child pornography in violation of 18 U.S.C. § 2252 would be found in Defendant’s home. Defendant engaged in explicit online discussions with the agent, said he wanted to take pictures of her on his pool table, asked her to take off her hoodie and shirt in subsequent photographs, and then gave her his address. Therefore, there was sufficient evidence to give rise to probable cause to believe that Defendant attempted to produce and/or possess child pornography. This case is distinguishable from Zimmerman, where there was no evidence that the defendant had ever possessed or attempted to possess child pornography at any time. Thus, the warrant was issued on probable cause.

White House proposal would ease FBI access to records of Internet activity, by Ellen Nakashima, Washington Post, today:

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

The requirement of record keeping of sexually oriented performers to avoid child pornography, 18 U.S.C. §§ 2257 & 2257A, is a reasonable record keeping requirement and inspection of those records does not violate the Fourth Amendment. Three decades of regulation qualifies as closely regulated for the purposes of age documentation of performers. [The case also involves First and Fifth Amendment challenges.] EFF’s page for the case does not have this opinion as of the time of this posting. Free Speech Coalition v. Holder, 2010 U.S. Dist. LEXIS 75471 (E.D. Pa. July 27, 2010):

It is well established that, under the Fourth Amendment, a person’s reasonable expectation of privacy in his or her home or business exists “not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative searches designed to enforce regulatory statutes.” New York v. Burger, 482 U.S. 691, 699-700 (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-13 (1978)). “An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.” Id. at 700 (citing Donovan v. Dewey, 452 U.S. 594, 598-99 (1981)).

This expectation is particularly attenuated in commercial property employed in “closely regulated” industries. Id. “‘Certain industries have such a history of government oversight that no reasonable expectation of privacy [can] exist for a proprietor over the stock of such an enterprise.'” Id. (citation omitted) (quoting Marshall, 436 U.S. at 313). As the Third Circuit has explained, “one who is engaged in an industry that is pervasively regulated by the government or that has been historically subject to such close supervision is ordinarily held to be on notice that periodic inspections will occur and, accordingly, has no reasonable expectations of privacy in the areas where he knows those inspections will occur.” Lovgren v. Byrne, 787 F.2d 857, 865 (3d Cir. 1986). For this reason, a warrantless inspection of commercial premises may be reasonable within the meaning of the Fourth Amendment, and the Supreme Court has correspondingly recognized an exception to the warrant requirement for searches of “closely” or “pervasively” regulated industries. Burger, 482 U.S. at 702-03.

A pervasively regulated business is one which has “such a history of government oversight that no reasonable expectation of privacy could exist.” Marshall, 436 U.S. at 313 (citation omitted). “[T]he doctrine is essentially defined by ‘the pervasiveness and regularity of the federal regulation’ and the effect of such regulation upon an owner’s expectation of privacy.” Burger, 482 U.S. at 701 (quoting Donovan, 452 U.S. at 606). As the Third Circuit has emphasized, individuals who “voluntarily engage in such [closely or pervasively] regulated businesses accept the burdens as well as the benefits of the trade.” Frey v. Panza, 621 F.2d 596, 597 (3d Cir. 1980) (per curiam).

As discussed at length above, for over three decades the creation, production, and distribution of sexually explicit expression has been the subject of extensive federal regulation aimed at protecting children from sexual exploitation. 24 As a result of this steadily strengthening web of initiatives–which include §§ 2257 and 2257A and their implementing regulations–producers of sexually explicit expression have been on notice for some time that, when it comes to ensuring the performers in their expression are adults, they will be subject to various forms of government oversight, including inspection of age-verification records. Indeed, the “regulatory presence is sufficiently comprehensive and defined” in this regard that producers of such expression “cannot help but be aware that their property will be subject to periodic inspections undertaken for specific purposes.” Burger, 482 U.S. at 705 n.16 (internal quotation marks omitted). Accordingly, this Court finds that, “in light of the regulatory framework governing” the production of sexually explicit expression as it pertains to age verification and the protection of children from sexual exploitation, plaintiffs have a “reduced expectation of privacy in this ‘closely regulated'” enterprise. Id. at 707.

In the Arizona SB1070 preliminary injunction case, the District Court cited Fourth Amendment implications of detentions on people detained for lack of papers which factored into the decision to grant the preliminary injunction. United States v. State of Arizona, CV 10-1413-PHX-SRB, at 16 (D. Ariz. July 28, 2010)*:

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.6

6 The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined, as raised by the plaintiffs in Friendly House, et al. v. Whiting, et al., No. CV 10-1061-PHX-SRB.

Orin Kerr on Volokh Conspiracy: Good-Faith Exception for Changing Law Likely Headed to the Supreme Court. The Supremes denied his cert petition in McCane. DOJ resisted in McCane, but filed its own from United States v. Gonzalez, 598 F.3d 1095 (9th Cir. 2010), denying rehearing en banc from 578 F.3d 1130 (9th Cir. 2009). The government’s cert petition, as usual, is more likely to be granted.

The government didn’t want the issue heard when it was the winner, but it does when it is the loser. It had to know the case law would be hugely split by the time it would be argued.

McCane was decided a year ago today.

The parties did not raise the question of standing, but the court does sua sponte, and it finds that defendant lacks standing as a passenger in a rental car. “In the present case, the Defendant was a passenger in a Hertz rental car. It is undisputed that the driver … was the only authorized driver on the rental agreement. Accordingly, the Court finds that the Defendant does not have a legitimate expectation of privacy in the rental car and, therefore, lacks standing to challenge the inventory search thereof.” Defendant’s claim that the officers should have released the car to her also fails, just in case there was standing. United States v. McCalebb-Pippens, 2010 U.S. Dist. LEXIS 74767 (E.D. Tenn. May 24, 2010).*

Defendant’s PO had reasonable suspicion to search him in connection with a murder. While he was not charged, he was nearby and he was in a city he was not permitted to be without permission. United States v. Benjamin, 2010 U.S. Dist. LEXIS 74941 (E.D. Pa. July 26, 2010).*

Officers approached people involved in a fight just to talk to them, and defendant walked away, so they told him to stop. It was reasonable to do so because it was likely the situation would flare up after they left. United States v. Parker, 2010 U.S. Dist. LEXIS 74733 (N.D. Ind. July 21, 2010).*

Defense counsel was not ineffective for not moving to suppress his breath test because it would not have been granted. State v. Brewer, 2010 Ohio 3441, 2010 Ohio App. LEXIS 2951 (2d Dist. July 23, 2010)*:

[*P26] The prejudice prong of the Strickland test requires more than a determination that the motion not made by trial counsel would have been a close call; it requires a finding that a motion to suppress, had it been made, would likely have been granted. We conclude, therefore, that Brewer’s trial counsel was not ineffective for having failed to move to suppress the evidence.

Defendant’s mother discovered that he had child pornography on his computer, and she brought the hard drive to the police. The police made some effort to locate the defendant, but he was hard to find because the police were looking for him. They decided to declare the hard drive abandoned and searched it, but the court found no evidence of abandonment. State v. Gould, 2010 Ohio 3437, 2010 Ohio App. LEXIS 2925 (6th Dist. July 23, 2010):

[*P28] The state contends that the hard drive was abandoned by appellant. Abandoned property is not subject to Fourth Amendment protection. Abel v. United States (1960), 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668. “Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts.” United States v. Colbert (C.A.5, 1973), 474 F.2d 174, 176. In determining whether someone has abandoned property, “[a]ll relevant circumstances existing at the time of the alleged abandonment should be considered.” Id. “The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” Id.

[*P29] At the suppression hearing, there was no evidence presented to demonstrate appellant’s intent, by words spoken or acts done, to abandon the hard drive.

[*P30] While intent of one in possession of property or premises often cannot be inferred from his actions, abandonment will not be presumed. It must be clearly established by the party asserting it. Coleman v. Maxwell (C.A.6, 1967), 387 F.2d 134, certiorari denied (1968), 393 U.S. 1007, 89 S. Ct. 492, 21 L. Ed. 2d 472. Mere absence from the premises without a clear intention to abandon could not legitimize a search of property found therein. U.S. v. Robinson (C.A.6, 1970), 430 F.2d 1141.

[*P31] Detective Lester’s subjective belief that the hard drive had been abandoned was unsupported by the objective facts and Easterwood’s testimony. More significantly, the detective could have obtained additional information concerning the circumstances surrounding Easterwood’s access to the computer hard drive through further questioning and properly sought a search warrant for the hard drive. Accordingly, we find that the state failed to demonstrate by credible, competent evidence that the hard drive was abandoned.

Defendant was asked in Spanish for consent to search his vehicle, which he granted, after a simple and direct question. He was not Mirandized as he should have been, but that does not make the consent invalid. United States v. Solano-Fell, 2010 U.S. Dist. LEXIS 74324 (W.D. N.Y. May 17, 2010).*

Officers had a call of a suspicious person selling drugs on a street corner, so they went there, saw him, and approached. He threw down a gun, and that was probable cause to arrest. United States v. Chissem, 2009 U.S. Dist. LEXIS 129098 (E.D. Mo. April 17, 2009).*

Two apparent hand-to-hand sales of a man under surveillance was reasonable suspicion. United States v. Beard, 2009 U.S. Dist. LEXIS 129131 (E.D. Mo. April 8, 2009).*

In the NYTimes yesterday, by Adam Liptik: Court Under Roberts Is Most Conservative in Decades.

Remember the “balls and strikes” comment: Roberts: ‘My job is to call balls and strikes and not to pitch or bat’?

It seems more to me like it has been calling a force play at second base a home run when one considers the exclusionary rule under Hudson and Herring. And remember, Roberts dissented in Gant. The Government can hardly do no wrong, and as an umpire, he can rig the game, 5-4, most of the time. The criminal defendant just does not fare well, unless it is a white collar crime.

Search warrant rules are constitutional (fundamental) and statutory (non-fundamental or technical). Technical errors require proof of prejudice. Here, a municipal judge signed a search warrant for property in an adjoining county, and that is not a fundamental error. State v. Ridenour, 2010 Ohio 3373, 2010 Ohio App. LEXIS 2860 (4th Dist. July 14, 2010).

Defense counsel was not ineffective for not filing a motion to suppress. “The evidence, as sifted through below, demonstrates that officers had a reasonable suspicion of criminal activity to justify the seizure and investigation of appellant.” State v. Young, 2010 Ohio 3402, 2010 Ohio App. LEXIS 2881 (8th Dist. July 22, 2010).*

Defendant was stopped because his license plate was not visible from the rear and no seatbelt. As the officer walked up, defendant made furtive movements like he was hiding something, and that justified a frisk of the car. State v. Allen, 2010 Ohio 3336, 2010 Ohio App. LEXIS 2825 (2d Dist. July 16, 2010).*

An officer saw defendant’s SUV parked behind a bar and saw furtive movements when the occupants saw the officer. He drove up on them shining his police car lights. He could smell marijuana smoke, and that was justification for a search of the car. State v. McMullen, 2010 Ohio 3369, 2010 Ohio App. LEXIS 2856 (12th Dist. July 19, 2010).* This is the reasonable suspicion, for which there is no articulable basis of a crime:

[*P2] Officer Scott Johnson of the Trenton Police Department was on patrol in the evening hours of March 27, 2009, when he pulled into the parking lot of Whitey’s Bar. According to Johnson’s testimony at the motion to suppress hearing, upon pulling into the parking lot, he noticed a parked SUV that was occupied by multiple people. When Johnson saw that some of the people in the vehicle were making furtive movements, he approached the SUV in his police cruiser and turned on his spotlight. Once Johnson shined his light into the vehicle, he noticed the front passenger “ducking underneath the dashboard” and that his head came up and down.

[*P3] Johnson also noticed that a “considerable” amount of smoke was coming from the vehicle and that the passengers continued to make furtive movements. At that point, Johnson exited his cruiser and approached the vehicle. As he walked closer, he saw some of the passengers bend over and put their hands down in the seat, and also noticed that the smoke coming from the vehicle smelled of “raw burnt marijuana.” Johnson saw three people sitting in the back and two in the front of the vehicle, and continued to see smoke coming from the back corner.

So, if no furtive movements on seeing the police the stop was unjustified? This just is not reasonable suspicion.

Defendant on misdemeanor probation is subject to a probation search just as a felony probationer. “The [Knights] Court made no distinction between a felony and misdemeanor probationer.” United States v. Izatt, 2010 U.S. Dist. LEXIS 73028 (D. Idaho July 20, 2010).

Use of a Customs summons to get Internet subscriber information in a child pornography case violated no privacy interest. United States v. Cray, 2010 U.S. Dist. LEXIS 73351 (S.D. Ga. May 25, 2010)*:

“Every federal court to address [whether identifying information such as the defendant’s name, address, etc., is protected by the Fourth Amendment] 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) (citations omitted). In the instant case, the information gained pursuant to the Customs Summonses and used to support a probable cause finding for the search warrant was Cray’s subscriber information, residence address, and bank records. Thus, Cray has no protected interest in the subscriber information he provided to AT&T.

Defendant’s stop for trafficking drugs because of movement between Kentucky and Ohio after surveillance was with reasonable suspicion. United States v. Chandler, 2010 U.S. Dist. LEXIS 73199 (E.D. Ky. July 20, 2010), R&R, 2010 U.S. Dist. LEXIS 73457 (E.D. Ky. July 2, 2010).*

While the question was really close, the court finds that the continued stop of the defendant was with reasonable suspicion. United States v. Johnson, 2010 U.S. Dist. LEXIS 73468 (E.D. Tenn. May 19, 2010).*

By loaning his car to another, defendant had no reasonable expectation of privacy in the vehicle when the driver was stopped. United States v. Balcazar, 2010 U.S. Dist. LEXIS 73409 (D. Ariz. March 8, 2010):

In One 1977 Mercedes Benz, the Ninth Circuit Court of Appeals held that a defendant lacked standing to challenge the search of her vehicle where she had voluntarily turned possession of that automobile over to a third party for his exclusive use and had taken no precautions to safeguard any privacy interest within the vehicle. 708 F.2d at 449. The relevant holding from One 1977 Mercedes Benz has been applied broadly in this district. In United States v. Vizcarra, 835 F. Supp. 1160, 1162 (D. Ariz. 1993), the Court held, “where the owner of a vehicle has turned that vehicle over to someone else, the owner retains an insufficient privacy interest to possess standing to challenge the search of that vehicle.”

As in One 1977 Mercedes Benz and Vizcarra, Velez-Willem turned his vehicle over to another person. Velez-Willem has offered no evidence regarding his expectation of privacy in the vehicle after he turned it over to Balcazar. Accordingly, Velez-Willem has not met his burden of demonstrating a reasonable expectation of privacy in the Ford Focus at the time the searches were conducted.

General allegations that plaintiff’s decedent was killed by an officer was insufficient under the Fourth Amendment. Garcia v. Hatcher, State of Nevada ex rel. Its Gaming Control Bd., 2010 U.S. Dist. LEXIS 73377 (D. Nev. July 19, 2010)*:

Other than the allegation concerning police back-up, Plaintiffs do not allege any specific facts suggesting that Hatcher’s actions were unreasonable given the circumstances. Plaintiffs do not allege that Martinez was unarmed, that Martinez was not dangerous, or that Martinez was not attempting to flee the scene. Accordingly, Plaintiffs have failed to allege facts suggesting that Hatcher’s action amounted to a constitutional violation of the Fourth Amendment.