Errors in the search warrant and return for the wrong address (8111 Cherry Valley v. 3111 Cheerful Valley) but the right address was searched were not material. Taking the defendant’s argument to its conclusion makes no sense. United States v. Derrick, 2010 U.S. Dist. LEXIS 58360 (E.D. Wis. June 11, 2010)*:

In addition to being wrong on the facts, defendant’s argument made little sense. Defendant did not claim that he was living at 3111 Cheerful (or Cherry) Valley rather than 8111 Cheerful Valley. If the officers actually searched 3111 Cheerful (or Cherry) Valley rather than 8111 Cheerful Valley, why would defendant care? And how could any evidence relevant to defendant’s charges have been seized from the wrong place? And how would defendant have standing?

Officers responding to an armed robbery call saw a vehicle matching the description of the vehicle involved and stopped it. There was reasonable suspicion for the stop and the frisk of the occupants and the van. United States v. Bailey, 2010 U.S. Dist. LEXIS 58357 (N.D. Okla. June 11, 2010).*

Officer watching a car sitting at the curb with the motor running in an area known for its street drug dealing and people coming and going and the driver furtively looking over his shoulder had reasonable suspicion under Terry. United States v. Nelson, 2010 U.S. Dist. LEXIS 58300 (D. Minn. March 29, 2010).*

Quon decided; city’s access of employee’s text messages was reasonable under O’Connor v. Ortega, 480 U. S. 709 (1987), and, significantly, the Court assumes the employee has a reasonable expectation of privacy that the employer could overcome. City of Ontario v. Quon 2010 U.S. LEXIS 4972 (U.S. June 17, 2010):

Petitioner Ontario (hereinafter City) acquired alphanumeric pagers able to send and receive text messages. Its contract with its service provider, Arch Wireless, provided for a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. The City issued the pagers to respondent Quon and other officers in its police department (OPD), also a petitioner here. When Quon and others exceeded their monthly character limits for several months running, petitioner Scharf, OPD’s chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of Quon’s and another employee’s August and September 2002 text messages, it was discovered that many of Quon’s messages were not work related, and some were sexually explicit. Scharf referred the matter to OPD’s internal affairs division. The investigating officer used Quon’s work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating OPD rules. He and the other respondents—each of whom had exchanged text messages with Quon during August and September—filed this suit, alleging, inter alia, that petitioners violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of Quon’s pager messages, and that Arch Wireless violated the SCA by giving the City the transcript.The District Court denied respondents summary judgment on the constitutional claims, relying on the plurality opinion in O’Connor v. Ortega, 480 U. S. 709, to determine that Quon had a reasonable expectation of privacy in the content of his messages. Whether the audit was nonetheless reasonable, the court concluded, turned on whether Scharf used it for the improper purpose of determining if Quon was using his pager to waste time, or for the legitimate purpose of determining the efficacy of existing character limits to ensure that officers were not paying hidden work-related costs. After the jury concluded that Scharf’s intent was legitimate, the court granted petitioners summary judgment on the ground they did not violate the Fourth Amendment. The Ninth Circuit reversed. Although it agreed that Quon had a reasonable expectation of privacy in his text messages, the appeals court concluded that the search was not reasonable even though it was conducted on a legitimate, work-related rationale. The opinion pointed to a host of means less intrusive than the audit that Scharf could have used. The court further concluded that Arch Wireless had violated the SCA by giving the City the transcript.

Held: Because the search of Quon’s text messages was reasonable, petitioners did not violate respondents’ Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise. Pp. 7–17.

(a) The Amendment guarantees a person’s privacy, dignity, and security against arbitrary and invasive governmental acts, without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 613–614. It applies as well when the government acts in its capacity as an employer. Treasury Employees v. Von Raab, 489 U. S. 656, 665. The Members of the O’Connor Court disagreed on the proper analytical framework for Fourth Amendment claims against government employers. A four-Justice plurality concluded that the correct analysis has two steps. First, because “some [government] offices may be so open … that no expectation of privacy is reasonable,” a court must consider “[t]he operational realities of the workplace” to determine if an employee’s constitutional rights are implicated. 480 U. S., at 718. Second, where an employee has a legitimate privacy expectation, an employer’s intrusion on that expectation “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id., at 725–726.

JUSTICE SCALIA, concurring in the judgment, would have dispensed with the “operational realities” inquiry and concluded “that the offices of government employees … are [generally] covered by Fourth Amendment protections,” id., at 731, but he would also have held “that government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context—do not violate the … Amendment,” id., at 732. Pp. 7–9.

(b) Even assuming that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable under both O’Connor approaches, the plurality’s and JUSTICE SCALIA’s. Pp. 9–17.

(1) The Court does not resolve the parties’ disagreement over Quon’s privacy expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve. Because it is therefore preferable to dispose of this case on narrower grounds, the Court assumes, arguendo, that: (1) Quon had a reasonable privacy expectation; (2) petitioners’ review of the transcript constituted a Fourth Amendment search; and (3) the principles applicable to a government employer’s search of an employee’s physical office apply as well in the electronic sphere. Pp. 9–12.

(2) Petitioners’ warrantless review of Quon’s pager transcript was reasonable under the O’Connor plurality’s approach because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. See 480 U. S., at 726. There were “reasonable grounds for [finding it] necessary for a noninvestigatory work-related purpose,” ibid., in that Chief Scharf had ordered the audit to determine whether the City’s contractual character limit was sufficient to meet the City’s needs. It was also “reasonably related to the objectives of the search,” ibid., because both the City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or, on the other hand, that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine whether either of these factors caused Quon’s overages. And the review was also not “excessively intrusive.” Ibid. Although Quon had exceeded his monthly allotment a number of times, OPD requested transcripts for only August and September 2002 in order to obtain a large enough sample to decide the character limits’ efficaciousness, and all the messages that Quon sent while off duty were redacted. And from OPD’s perspective, the fact that Quon likely had only a limited privacy expectation lessened the risk that the review would intrude on highly private details of Quon’s life. Similarly, because the City had a legitimate reason for the search and it was not excessively intrusive in light of that justification, the search would be “regarded as reasonable and normal in the private-employer context” and thereby satisfy the approach of JUSTICE SCALIA’s concurrence, id., at 732. Conversely, the Ninth Circuit’s“least intrusive” means approach was inconsistent with controlling precedents. See, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 663. Pp. 12–16.

(c) Whether the other respondents can have a reasonable expectation of privacy in their text messages to Quon need not be resolved. They argue that because the search was unreasonable as to Quon, it was also unreasonable as to them, but they make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to them. Given this litigating position and the Court’s conclusion that the search was reasonable as to Quon, these other respondents cannot prevail. Pp. 16–17.

529 F. 3d 892, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, THOMAS, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined, and in which SCALIA, J., joined except for Part III–A. STEVENS, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in part and concurring in the judgment.

A child pornography investigation brought investigators to a fire station after an IP address was traced there. The officer could not open the files after defendant consented to a look at the computer. At that point, seizure of defendant’s computer was justified by exigent circumstances because it was likely defendant would destroy the images before a search warrant could be obtained. United States v. Bradley, 2010 U.S. Dist. LEXIS 59816 (E.D. Ky. June 16, 2010):

Although Bradley had consented to the image scan and examination of his LimeWire props, Bradley still could have attempted to destroy evidence once out of the investigators’ presence. See United States v. Lamb, No 09-CR-44, 2010 U.S. Dist. LEXIS 19899, at *22 (N.D. W. Va. Jan. 14, 2010) (noting that although it seemed unlikely that the defendant would have destroyed evidence because he was cooperating with agents, he “could have gone into the residence and deleted some or all of the images from his computer or destroyed his computer”). Because Investigator Bell had a reasonable expectation that Bradley would destroy the evidence, exigent circumstances were present when Bell seized the computer. See Vallimont, 2010 U.S. App. LEXIS 9651 at *4 (noting that concern about destruction of evidence was understandable where defendant might become aware of the investigation); United States v. Stiles, 2010 U.S. Dist. LEXIS 41325, at *13 (holding that because the defendant had already admitted that the computer contained child pornography, there was a risk the computer would disappear if the agents did not immediately seize it); cf. United States v. Santa, 236 F.3d 662, 670 (11th Cir. 2000) (holding that there were no exigent circumstances where defendants were “unaware of their impending arrest”).

Officers from Missouri were conducting surveillance when they were following defendant and they unknowingly traveled into Kansas. The fact they were outside their jurisdiction was irrelevant under the Fourth Amendment. United States v. Jones, 2010 U.S. Dist. LEXIS 59429 (D. Kan. June 15, 2010):

The fact that the officers were out of their authorized jurisdiction may be relevant for purposes of state law but does not change this court’s analysis for purposes of suppression. “[I]t is not the province of the Fourth Amendment to enforce state law.” Virginia v. Moore, 128 S.Ct. 1598, 1607-08 (2008) (holding that a search of a person, conducted incident to an arrest that was beyond the arresting officers’ authority under state law, nonetheless should be evaluated by Fourth Amendment standards for warrantless searches). See also Bowling v. Rector, 584 F.3d 956, 968 (10th Cir. 2009) (holding that Fourth-Amendment analysis was proper inquiry to evaluate validity of search warrant sought and executed by an officer who was investigating a matter outside the limited subject-matter jurisdiction granted to him by Oklahoma law); United States v. Green, 178 F.3d 1099, 1107 (10th Cir. 1999) (applying Fourth Amendment analysis to officers’ execution of search warrant outside their state-authorized jurisdiction); United States v. Gonzales, 535 F.3d 1174, 1183 (10th Cir. 2008) (state jurisdictional law irrelevant to inquiry of reasonableness of traffic stop under Fourth Amendment); United States v. Sawyer, 441 F.3d 890, 895 (10th Cir. 2006) (stating that officer’s authority under state law is irrelevant for purposes of analyzing validity of consent to search).

The CI was corroborated in significant part, and the CI had a good track record, so the stop was justified by that and the fact the registration expired. A drug dog was used on the vehicle, and the defendant has the burden of showing the drug dog was unqualified. United States v. Nguyen, 2010 U.S. Dist. LEXIS 59455 (D. Utah June 15, 2010).*

Note: This is just so fundamentally wrong, and I am shocked, shocked that a judge can still be that obtuse in 2010. (See this post from May on the same issue where a federal judge granted a motion to reconsider after applying the wrong burden of proof at the government’s request. “I’m from the government, and I’m here to help you.”)

Let me say it again for the Fourth Amendment impaired in the judiciary and government:

The government always bears the burden of proof on the merits of any warrantless search. See this chain of citations from this case, which shows that the Tenth Circuit may have it wrong in 1994: this case only cites United States v. Clarkson, 551 F.3d 1196, 1202-03 (10th Cir. 2009), but that says nothing. It, in turn, cites United States v. Moore, 22 F.3d 241 (10th Cir. 1994), which states: “The proponent of a motion to suppress bears the burden of proof. Rakas v. Illinois, 439 U.S. 128, 130-31 n. 1, 99 S.Ct. 421, 423-24, 58 L.Ed.2d 387 (1978); United States v. Carr, 939 F.2d 1442, 1446 (10th Cir.1991).” Rakas‘s note 1 just says that the defendant has to show standing to get to the merits of the search claim. See United States v. Matlock, 415 U.S. 164, 177 n.14 (1974):

There was an inadvertence in articulating the applicable burden of proof, but it seems to have been occasioned by a similar inadvertence by the Government in presenting its case. In any event, the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence. See Lego v. Twomey, 404 U. S. 477, 488-489 (1972). We do not understand the Government to contend that the standard employed by the District Court was in error, and we have no occasion to consider whether it was.

Standing is one thing, the Fourth Amendment merits are another. Standing is a question of going forward, just like saying “I was the target of a warrantless search of my car, and I have standing because it is my car.” It’s that simple. When the defendant shows standing, the burden then shifts to the government to support the merits of the warrantless search. See, e.g., United States v. Jeffers, 342 U.S. 48, 51 (1951):

The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both “houses” and “effects.” Over and again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. See Weeks v. United States, 232 U. S. 383 (1914); Agnello v. United States, 269 U. S. 20 (1925). Only where incident to a valid arrest, United States v. Rabinowitz, 339 U. S. 56 (1950), or in “exceptional circumstances,” Johnson v. United States, 333 U. S. 10 (1948), may an exemption lie, and then the burden is on those seeking the exemption to show the need for it, McDonald v. United States, 335 U. S. 451, 456 (1948). In so doing the Amendment does not place an unduly oppressive weight on law enforcement officers but merely interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended. Johnson v. United States, supra. Officers instead of obeying this mandate have too often, as shown by the numerous cases in this Court, taken matters into their own hands and invaded the security of the people against unreasonable search and seizure.

This is settled law for over 60 years. Are you guys new at this?

Finally, the drug dog’s reliability is generally satisfied by a few words from the officer about training, and the burden shifts to the defendant to attempt to rebut, say by the number of false positives. See, e.g., United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999):

A dog’s positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable. To establish the dog’s reliability, the affidavit need only state the dog has been trained and certified to detect drugs. An affidavit need not give a detailed account of the dog’s track record or education.

(See first here; it’s essentially Brady, but not all courts would go that far. See here. Search “dog reliability” and “dog training” and “false positives” for more.)

The inventory of defendant’s vehicle was dependent upon the initial impoundment. Under Krull, the officers relied in good faith on the ordinance for impoundment, so the inventory under specific policy thereafter was valid. United States v. Arias, 2010 U.S. Dist. LEXIS 60724 (W.D. N.Y. June 17, 2010).*

Defendant admitted in his motion to suppress that he did not reside in the place searched, and he had no standing. It belonged to his father, and there was no evidence that he was an overnight guest. There were some clothes there that he could wear, but there was no evidence that they were his. United States v. Jack, 2010 U.S. Dist. LEXIS 60690 (E.D. Tenn. May 25, 2010).*

A report from store loss prevention employees was reliable enough on the totality to stop defendant after two transactions that appeared to be fraudulent, despite the fact the credit card was accepted for the transaction. United States v. Abney, 2010 U.S. Dist. LEXIS 60616 (E.D. Pa. June 18, 2010).*

“Fourth Amendment cases[ by actual name], [full] citation, and links” is on the sidebar, and it is searchable by Ctrl + F.

[Update: This had a broken link on the sidebar. Nobody told me. Apparently nobody is online.]

This is a collection of 239 Fourth Amendment cases from the U.S. Supreme Court [from Boyd (1886) to Quon (2010)] and four historical cases from England in the 17th and 18th Centuries. This is the list I’ve used for three years to plug in links to case name here and to research Fourth Amendment cases and plug in citations in briefs.

I finally got around to posting it to share.

Now:

Fourth Amendment cases,
citations, and links [New]

Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts

“Arrest Efficiency and the Fourth Amendment,” L. Song Richardson of DePaul University College of Law to be published in the Minnesota Law Review. Abstract here. The article discusses unconscious racial profiling.

I couldn’t get in for nearly seven hours today. This sucks.

On FoxNews today, for some reason: Laid Off? Take a Drug Test | Lawmaker wants people get drug-tested in order to get unemployment benefits (video actually from March, but it was discussed today, again), from a Georgia state lawmaker. See also ajc.com from March. Its HB 1389, and the recipient of the funds has to pay for the test. Didn’t that die without a vote? This is so old, it’s not newsworthy. But, that’s Fox–filling airtime with the scare of the day.

This is so unconstitutional, it’s laughable. See Ferguson v. City of Charleston, 532 U.S. 67 (2001), and Chandler v. Miller, 520 U.S. 305 (1997) [from Georgia].

If it’s me, its unconstitutional. If it’s you, well that’s reasonable government regulation designed to save the Republic.

Anonymous tip that defendant was dealing drugs at school was insufficient to justify a search by an assistant principal and the police on the school parking lot. The tip came through the PD and was passed on to the school. Another tip about another person proved fruitless. There was nothing to show why it was a reliable tip. People v. Perreault, 287 Mich. App. 168, 2010 Mich. App. LEXIS 94 (January 19, 2010)*:

Therefore, the anonymous tip was vague concerning defendant and could not be viewed with a “totality of the circumstances” because there were no other circumstances. Indeed, the only other possible circumstance weighed against the tip being reliable. “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation” before governmental authorities may act against a suspect. White, supra at 329. (internal quotation marks and citation omitted). This is an example of such a tip. The tip alone did not provide a sufficient basis to form reasonable suspicion necessary for the search of defendant’s vehicle, and the search was based on nothing more than the tip. The search was therefore unconstitutional, and the trial court should have suppressed the evidence as the fruit of an illegal search. See Wong Sun v United States, 371 U.S. 471, 487-488; 83 S Ct 407; 9 L Ed 2d 441 (1963); Cartwright, supra.

Reversed for reasons stated in the dissenting opinion [there was reasonable suspicion]. People v. Perreault, 2010 Mich. LEXIS 912 (Mich., May 21, 2010), posted June 19, 2010.

Are we being hacked again? Today we were down from 6:30 am to 10:45 am Central.

CI’s information about defendant’s grow operation, “which is not a fly-by-night affair,” was a couple of weeks old but it was not stale. United States v. Widi, 2010 U.S. Dist. LEXIS 58881 (D. Me. February 23, 2010).*

Defendant admittedly consented to the officer’s entry during a knock-and-talk, and there is no showing they refused to leave. He consented to the later search. United States v. Perez-Saavedra, 2010 U.S. Dist. LEXIS 59071 (N.D. Iowa May 7, 2010).*

Defendant would fail on the prejudice prong of ineffective assistance because it is apparent the motion would have been denied. United States v. Carrasco, 2010 U.S. Dist. LEXIS 58789 (E.D. Mich. April 19, 2010).*

Appellate counsel’s failure to argue defendant’s search and seizure claim on appeal was not ineffective assistance because it was frivolous to argue there was no probable cause. Garey v. United States, 2010 U.S. Dist. LEXIS 59239 (M.D. Ga. March 29, 2010).*

The search warrant for a building specifically excluded the second floor front apartment as occupied by somebody else. When executing the search warrant for the building, the door to the excluded apartment was opened, and the officers smelled bulk marijuana. This did not justify a protective sweep under Buie. United States v. Baker, 2009 U.S. Dist. LEXIS 127395 (W.D. N.Y. December 11, 2009):

First of all, the entry into the building at 1334 Clinton Street occurred at 6:35 a.m. on February 9, 2007, and the knocking on the door of the second floor front apartment occurred within a matter of minutes thereafter. (T. 32).

The “mere propinquity” of the second floor front apartment to the second floor rear apartment does not create a justification for a protective search or sweep of that apartment. (See Ybarra v. Illinois, 444 U.S. 85, 91 (1979). “A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”).

Detective Rinaldo testified at the evidentiary hearing that he “had not heard anybody in that other [second floor front] apartment;” and that at that point in time, “there was no reason to believe that anyone else would be in that apartment.” (T. 53, 30-31).

Safety or security sweeps or searches “may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the … scene.” Maryland v. Buie, supra at 336; United States v. Moran, 376 F.3d 112, 117 (2d Cir. 2004); United States v. Miller, 430 F.3d 93, 95 (2d Cir. 2005).

As the Court of Appeals for the Second Circuit has stated:

The Buie court explicitly declined to hold that the danger inherent in executing an arrest warrant will ipso facto justify a protective sweep. … Officers must point to facts that give rise to an individualized suspicion and cannot rely solely on generalizations that suspects are usually accompanied by dangerous third parties.

United States v. Gandia, 424 F.3d 255, 263-264 (2d Cir. 2005).

The fact that Detective Rinaldo smelled a “strong [odor] of marijuana” which “smelled like bulk marijuana” did not justify a warrantless entry into the second floor front apartment for “odors alone do not authorize a search without a warrant.” Johnson v. United States, 333 U.S. 10, 13 (1948).

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

Id. at 13-14.

Detective Rinaldo’s belief, no matter how well founded, that the second floor front apartment contained “bulk marijuana” based on what he “smelled” while standing outside that apartment, did not justify a warrantless entry into the apartment by the S.W.A.T. team for purposes of conducting a “protective search.”

The officer suspected that defendant was carrying a gun in the pocket of his hoodie, but it was based on his experience as an officer and no other facts about the hands or what he might be holding. The Eighth Circuit [surprise!] finds this not enough for reasonable suspicion under Terry and Arvizu. United States v. Jones, 09-1731 (8th Cir. June 8, 2010):

Like the district court, we conclude that Officer Hasiak lacked the requisite reasonable suspicion that Jones was carrying a concealed firearm in his hoodie pocket, as opposed to some other object, or no object at all. The critical question is, again, whether Hasiak had a “particularized and objective basis” for his suspicion. Arvizu, 534 U.S. at 273. Given the deference we must accord both Hasiak’s training and experience and the inferences drawn by a resident district judge, this is a close question.

The government emphasizes that Jones by clutching the outside of his hoodie pocket exhibited one of the firearm-carrying clues Hasiak had been trained to observe, and Hasiak’s testimony that, on ten other occasions, the suspect he stopped and frisked was in fact armed. But this evidence was not as conclusive as the government suggests. On cross examination, Hasiak admitted that he was unable to see the size or shape of whatever was in Jones’s hoodie pocket, and that Jones exhibited none of the other clues Hasiak had been trained to look for, such as walking with an unusual gait, turning that part of his body away from the officers’ view, adjusting his grip or the location of the item in his pocket, or running away. Compare United States v. Jackson, 175 F.3d 600, 601-02 (8th Cir.), cert. denied, 528 U.S. 828 (1999). Government counsel then failed to clarify whether the other ten suspects to whom Hasiak generally referred had likewise exhibited only this one telltale clue. Because totality of the circumstances is the test, undue focus on one circumstance is suspect.

Pro se plaintiff did not state a claim against any person who used excessive force during the raid on his property, so the complaint is dismissed as to the police department. Warren v. SWAT, Tucson Police Dep’t, 2010 U.S. Dist. LEXIS 57542 (D. Ariz. May 17, 2010).*

Defendant granted consent for officers to enter to look at photographs on his wall. Others with apparent authority consented to the look going further. United States v. Ramirez-Vazquez, 2009 U.S. Dist. LEXIS 127338 (M.D. Fla. January 16, 2009).*

Search warrant for a pharmacy for all its records in a steroid prescribing case, where there was no link to the pharmacy and the prescribing doctors, was a general warrant for every piece of paper in the pharmacy with no way to limit the search to an offense. One defendant filed a summary judgment motion, and he lost. Signature Pharmarcy v. Soares, 2010 U.S. Dist. LEXIS 57714 (M.D. Fla. June 10, 2010):

A lengthy laundry list of specific items unconnected–in any way–to an alleged crime is no better than a warrant for “all evidence” of an alleged crime. Absent at least some nexus between the alleged crime and the items to be seized, an officer can simply “rummage and seize at will.” Minnesota v. Dickerson, 508 U.S. 366, 378 (1993) (internal citations and quotations omitted). Exploratory searches such as these have been roundly condemned since well before the founding of our nation.

In sum, the search warrants in this case amount to general warrants that failed to comply with the particularity requirements of the Fourth Amendment. On the day of the raids, “[n]othing circumscribed [Wright’s] activities … except [his] own good senses.” U.S. v. Matlock, 415 U.S. 164, 185 (1974) (internal citations and quotations omitted). No reasonable officer could possibly have believed that the warrants Wright possessed gave him the authority to simply arrive with U-Haul trucks, enter any office or suite in the buildings shared by Signature, and cart away virtually everything found therein. That is precisely, however, what appears to have occurred in this case.

Notwithstanding the foregoing, the sum total of Wright’s argument concerning the seizures consists of the following:

The search conducted in this case was made pursuant to a lawfully issued search warrant supported by probable cause. … Furthermore, Agent Wright did not exceed the scope of the search warrant. All items seized were encompassed within the scope of the search warrant, evidence of criminal activity or properly seized pursuant to Florida’s Contraband Act. 40 After the seizure of evidence took place, a judicial determination was timely made that probable cause support [sic] seizure of all items.

(Docs. 129 at 21 and 221 at 9). Wright fails to provide a single example of an item of evidence that amounted to evidence of criminal activity. …

Probable cause at least existed for search warrant for a pharmacy’s records of steroid sales such that the officer that prepared the warrant gets qualified immunity for issuance of the warrant in the first place.

On Slate.com: O Brother, Where Art Thou? | It’s time for legislators to look more closely at familial searches of DNA databases, by Natalie Ram and Michael Seringhaus:

More worrisome is the effective inclusion of many innocent individuals in the [CODIS] database, via novel and almost completely unregulated search techniques called “partial matching” and “familial searching.” By adopting one or both of these search techniques, some states are quietly expanding database coverage to “virtually” include the innocent relatives of profiled offenders—nearly always without any legislative oversight.

LATimes Saturday: New concerns arise over body scanners | Aviation security experts say the machines may miss items that metal detectors catch. Airline passengers may also be able to hide materials in the groin or body cavities. by Ken Dilanian, Tribune Washington Bureau:

Reporting from Washington — As the government begins deploying whole-body imaging machines to replace metal detectors at airports nationwide, some security experts worry that the new technology could make it easier, not harder, to sneak weapons and explosives onto airplanes.

An open line 911 call with static on the line is not per se an exigent circumstance. More is required than a 911 call. United States v. Martinez, 686 F. Supp. 2d 1161 (D. N.M. 2009)Motion granted by 2010 U.S. Dist. LEXIS 21585 (D.N.M., Feb. 25, 2010):

The range of 911 calls lie on a spectrum. At one end of the spectrum are those frantic calls from a person inside a home who is able to say someone is attacking him or her, or a member of the family. Such a call alone might be enough to provide a basis for the exigent-circumstances exception. See West v. Keef, 479 F.3d at 759 (“The 911 call from Plaintiff’s twelve-year-old son, which included his belief that his mother was ‘going crazy,’ that she was c[t]rying to kill herself,’ that she was ‘trying to cut her[self] with a knife’ and other statements to the same effect, are, standing alone and in context, sufficient to justify the warrantless entry.”). At the other end of the spectrum is a 911 call where there is no identifiable caller nor specified emergency. The Court believes that this latter category of calls, in which there is no identifiable caller nor specified emergency, is the least likely to justify a warrantless entry.

At probably the very limit of this spectrum is the static-only open-line call, where no one speaks and there is only static. A static-only call is unlike a hang-up call or a call where the individual is unable to give a complete explanation of his emergency. In the latter situation, the dispatcher and the dispatched police have a firmer basis for concluding someone at the residence called 911. In a static-only call, however, there are other, equally plausible explanations for the call. Bad weather or bad telephone lines are as likely to place such calls as is a person in immediate need of aid to protect his or her life. See Tr. at 165:17-23 (Court, Lind). The evidence is in equipoise. The burden is thus on the United States — and ultimately on the police at the scene — to show that there is something more than an open-line 911 call to establish exigent circumstances. The Court believes that static open-line 911 calls — as opposed to hang-up calls or incomplete-information calls — fall into the category of calls to which the Tenth Circuit alluded in United States v. Najar that do not, standing alone, justify a warrantless entry. Thus, regardless whether other 911 calls may, in other cases, alone establish exigent circumstances, the Court does not believe the open-line 911 call in this case, without more, provides a sufficient basis for the exigent-circumstances exception.