University police officers followed defendant’s car off campus and outside their jurisdiction, and they stopped him believing there was a warrant out for his arrest. There was, and he was arrested and the vehicle inventoried. The search violated the state constitution because it was clearly outside these officers’ limited jurisdiction. Commonwealth v. Hernandez, 456 Mass. 528, 924 N.E.2d 709 (2010).*

Defendant’s conviction for disorderly conduct for refusing entry to a law enforcement officer was reversed. The officer responded to a 911 domestic call, but there was no evidence justifying an entry on exigent circumstances. Barnes v. State, 925 N.E.2d 420 (Ind. App. 2010).*

The defendant did not abandon the backpack he left with another, and its search was unreasonable. The ATM receipt found inside was inadmissible. However, the officers would have inevitably found the ATM transaction anyway, and the videotape of the transaction from the ATM was admissible in defendant’s murder trial. Commonwealth v. Linton, 456 Mass. 534, 924 N.E.2d 722 (2010).*

The search warrant for evidence of a bank robbery was not stale five days after the robbery where some of the information was obtained within hours of the issuance of the warrant. United States v. Lowen, 2010 U.S. Dist. LEXIS 53215 (D. Minn. June 1, 2010)*:

“There is no bright-line test for determining when information is stale,” and the passage of time, alone, is “not always the controlling factor,” as other factors, such as “the nature of the criminal activity involved and the kind of property subject to the search,” are also relevant to the inquiry. Id., quoting United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993); United States v. Rugh, 968 F.2d 750, 754 (8th Cir. 1992); see also, United States v. Kennedy, supra at 1141; United States v. Chrobak, 289 F.3d 1043, 1046 (8th Cir. 2002).

As a result, in our analysis, we must not “simply count[] the number of days between the occurrence of the facts supplied and the issuance of the affidavit,” but must consider any passage of time “in the context of a specific case and the nature of the crime under investigation.” United States v. Maxim, supra at 397, quoting United States v. Koelling, supra at 822. Furthermore, “‘where recent information corroborates otherwise stale information, probable cause may be found.’” United States v. Ozar, supra at 1446, quoting United States v. Macklin, 902 F.2d 1320, 1326 (8th Cir. 1990), cert. denied, 498 U.S. 1031, 111 S. Ct. 689, 112 L. Ed. 2d 680 (1991).

Quite plainly, the information contained in the Search Warrant was not impermissibly stale, since all of the information was, at most, only a few days old. Indeed, the bank robbery occurred on February 26, 2010, and the Search Warrant was obtained on March 3, 2010. Moreover, information, that was obtained just hours before the Search Warrant issued, revealed that evidence of the bank robbery would still be found on the property, since law enforcement had observed attire, and other evidence, while at the Defendant’s residence on that same date.

U.S. Mail from Georgia to the Virgin Islands by statute goes through Customs even though mail to Puerto Rico does not. The customs search here was valid. United States v. Larsen, 2010 U.S. Dist. LEXIS 54597 (D. V.I. June 1, 2010):

The Court notes Smith’s concern. Indeed, a letter mailed by a United States citizen from Puerto Rico to Georgia, through the United States Postal Service, absent some extenuating circumstance, is not subject to warrantless search because the relevant case law holds that it is traveling within the customs territory of the United States. However, the same letter, if mailed by the same person from the United States Virgin Islands to Georgia, through the United States Postal Service, may be subject to a warrantless search.

While that treatment may seem disparate and problematic, Hyde has determined that for constitutional purposes it is not.

A motion to suppress with no facts, no law, and only a conclusion is denied without a hearing or even a response from the state. State v. Small, 2010 Del. Super. LEXIS 221 (May 27, 2010):

The Court is in receipt of Defendant’s motion to suppress evidence filed on May 14, 2010, which reads in its entirety:

MOTION TO SUPPRESS EVIDENCE

COMES NOW the defendant, above, by and through counsel, Joe Hurley, who moves to suppress all evidence found as a result of the defendant’s vehicle, and in support of such application, maintains that the defendant did not give consent to search his vehicle and, therefore, the putative consent cannot form the basis of validating the otherwise unlawful search of his vehicle.

WHEREFORE, the defendant moves to suppress the evidence.

“Here, Defendant was walking down a public street when he stated, ‘What? Do you want to jump out on me? I’m 29 negative, I’m clean. Pat me down. Search me.’ Defendant invited the Officers to pat him down. While perhaps unwise, the consent was explicit and completely voluntary. Based on the totality of the circumstances, the Court is satisfied that Defendant freely and unequivocally consented to the search. … Here, Defendant consented to the search before the encounter rose to the level of a ‘stop.’” If no consent, outcome would have been different. State v. Watson, 2009 Del. Super. LEXIS 518 (May 1, 2009).*

A search warrant was issued for alleged rioters and served by the Joint Terrorism Task Force. After execution, the court issued a TRO on the petitioners’ motion the next day to prevent the government from looking at what was seized until a hearing because of First Amendment concerns. The TRO had been set aside, and a special master was not appointed. Preindictment litigation of the search is possible under Rule 41(g). In re Madison, 687 F. Supp. 2d 103 (E.D. N.Y. November 10, 2009):

The threshold issue, raised by the government and ignored by petitioners, is whether the court should rule on petitioners’ Rule 41(g) motion prior to indictment absent a showing of irreparable harm. As the government points out, courts have held that, in the absence of a showing of irreparable harm, a decision on a Rule 41(g) motion should be deferred until after an indictment has issued. See, e.g., United States v. Douleh, 220 F.R.D. 391, 397 (W.D.N.Y. 2003).

Under the version of Rule 41 in effect from 1944 to 1989, granting a motion for the return of property required the suppression of that property at any subsequent hearing or trial. See Doane v. United States, No. 08 Mag. 0017 (HBP), 2009 WL 1619642, at *7 (S.D.N.Y. June 5, 2009) (citing FED. R. CRIM. P. 41(e) (1989)). Therefore, under the old version of the Rule, granting the motion pre-indictment would have had the effect of suppressing evidence before the grand jury in derogation of the holding in United States v. Calandra, 414 U.S. 338 (1973). See Doane, 2009 WL 1619642, at *7 (“The principal reason offered by these courts [*11] for engrafting an irreparable harm requirement onto the language of Rule 41(e) was that a pre-indictment suppression motion would unduly interfere with the function of the grand jury.”). “As a result, many courts deferred pre-indictment Rule 41(e) motions unless a movant could show (1) the search was illegal, (2) that he is without an adequate remedy at law, and (3) that he would suffer some irreparable injury if relief is not granted.” Id. (citations ommitted).

Rule 41 was amended in 1989 to provide that “[i]f the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings.” Id. (quoting FED. R. CRIM. P. 41(g)). This change was intended to “(1) keep pace with new developments in the exclusionary rule allowing the Government to retain and utilize unlawfully seized evidence in certain circumstances (i.e. grand jury proceedings) and (2) achieve a more equitable balance between the Government’s law enforcement interest and the property rights of owners.” Id. Thus, as a result of the new language of Rule 41, granting a pre-indictment motion for the return of property no longer inevitably results in the suppression of the property in subsequent proceedings. Moreover, in light of the reasonable conditions that may be imposed to preserve the use of the property, the government’s conclusory assertion that consideration of this motion at this juncture would interfere with the grand jury investigation is unavailing. Accordingly, petitioners need not establish irreparable harm for the court to consider their motions at this time.

Claimant’s stop was based on reasonable suspicion of a traffic violation, and there was no mistake of law or fact. The court discusses the difference. United States v. $33,020.00 in United States Currency, 2010 U.S. Dist. LEXIS 53550 (S.D. Fla. June 1, 2010)*:

a. Mistakes of Law

Twilley [United States v. Twilley, 222 F.3d 1092, 1094 (9th Cir. 2000)] illustrates the situation where reasonable suspicion for a traffic stop was lacking because of a mistake of law. In Twilley, a California Highway Patrol officer spotted a vehicle with a Michigan license plate on the rear. The officer mistakenly believed that Michigan law required a license plate on the front of the vehicle in addition to the license plate on the rear. It was the officer’s basis for stopping the vehicle. However, the officer was wrong as a matter of law. Michigan law did not require display of a front license plate. Consequently, the Ninth Circuit held that the officer did not have reasonable suspicion, the traffic stop violated the Fourth Amendment, and evidence from the search that followed should be suppressed. Id.

b. Mistakes of Fact

United States v. Wallace, 213 F.3d 1216 (9th Cir. 2000), illustrates the opposite situation. In Wallace, as in the present case, police officers were following a vehicle that was suspected of involvement with illegal narcotics activity. The officers were hoping to see a traffic violation in order to stop the driver. The officer noticed that the front window glass of the target car was darkly tinted. California’s Vehicle Code prohibits dark tinted windows on the front part of a car. Specifically, any tinting darker than tinted glass which allows 70% light transmittance is prohibited by California law.

Based upon the dark tinting, the police officer pulled Wallace over and the ensuing search of his vehicle revealed 130 pounds of marijuana. The officer correctly believed that the vehicle code prohibited dark tinting. That he incorrectly believed that all tinting was prohibited, or that he had not precisely measured the light transmitting quality of the window glass (which was later measured as only 29%), was of no moment. In holding that the officer had objective, probable cause justifying the traffic stop, the Ninth Circuit explained that the officer “was not taking the bar exam.” Id. at 1220. Instead, the issue, “is not how well [the officer] understood California’s window tinting laws, but whether he had objective, probable cause to believe that these windows were, in fact, in violation.” Wrote the court, “Officer Lieber’s observations correctly caused him to believe that Wallace’s window tinting was illegal; he was just wrong about exactly why.” Id. Consequently, the Ninth Circuit reversed, holding that the motion to suppress should be denied. Id. at 1221.

Allegations of a billing fraud case were sufficiently particular in the drafting of the affidavit for the search warrant. The officers did not know what kind of evidence they would encounter in the search for evidence of the scheme. United States v. Gordon, 2010 U.S. Dist. LEXIS 53209 (W.D. Ky. June 1, 2010)*:

Likewise, Graas did not know what exact documents would contain information relating to the scheme to defraud others based on services not provided. However, the financial documents of the company were “likely to provide information concerning the [defendant’s] involvement in the [over-billing] scheme.” Id. Therefore, the warrant was sufficiently particularized with respect to the things to be seized. See also United States v. Gardiner, 463 F.3d 445, 471 (6th Cir. 2006) (finding sufficient particularity in a warrant that allowed seizure of numerous things including “financial documents”); United States v. Abboud, 438 F.3d 554, 575 (6th Cir. 2006) (“In a business fraud case, the authorization to search for general business records is not overbroad.”); United States v. Dirr, No. 3:08-CR-42, 2009 WL 5892996, at *19 (E.D. Tenn. Aug. 28, 2009) (finding sufficient particularity where warrant allowed seizure of “personal financial records from 1999 through August 2005” and “business financial records from 1999 through August 2005”).

The act of subscribing to a child pornography website was an intentional act, and it showed probable cause to believe that defendant had purchased child porn over the Internet and downloaded it to his computer, or at least accessed it. The warrant also was not stale. State v. Hale, 2010 Ohio 2389, 2010 Ohio App. LEXIS 1975 (2d Dist. May 28, 2010).*

An officer saw several people congregating in the Sursum Corda neighborhood of D.C. who the officer knew had priors, and he approached them. All left but T.L. whom the officer asked about drugs. He said he didn’t have any, and the officer asked about searching. He found a lot of cash on T.L. and took it telling him that he had to prove he earned it to get it back. T.L. shouted and called for help because he thought he was being “robbed” by the police officer, who, the court noted, gratuitously took his money. That brought people out of their homes. The officer then arrested T.L. for disorderly conduct and searched him incident to that finding crack. T.L.’s actions were not disorderly, and the search was invalid. Drug suppressed. In re T.L., No. 06-FS-798 (D.C. June 3, 2010).*

The search warrant for defendant’s computer for child pornography was sufficiently particular considering that cameras and video media were involved. United States v. Hyer, 2010 U.S. Dist. LEXIS 53221 (E.D. Mo. April 29, 2010)*:

In this case, the search warrant authorized officers to search for specific items related to the downloading and storage of images of child pornography. As noted in Alexander, these electronic files may be found in a number of different places and mediums. Given these realities, the Eighth Circuit has found that a search warrant for “all video tapes and DVDs, pornographic pictures, video and digital recording devices and equipment, all equipment that is used to develop, upload, or download photographs and movies, computers, and any indicia of occupancy” satisfied the Fourth Amendment’s particularity requirement. Summage, 481 F.3d at 1079. Looking to Alexander and Summmage, the 2005 search warrant was sufficiently particular.

Defendant was in an automatically locked interview room at the police station for several hours in a child abuse investigation, when he finally consented to a search of his computer. He was cooperative throughout. He was a police officer, and he was allowed out of the room twice at his request. He could have asked to leave, and didn’t. His consent was valid. United States v. Stanton, 2010 U.S. Dist. LEXIS 52817 (M.D. Ala. April 30, 2010):

Stanton demonstrated a great willingness to cooperate with police. He agreed to go to the police station, agreed to be interviewed, and agreed to execute a waiver of rights. There is nothing in the record to suggest anything but a willingness to cooperate. There is no evidence of coercive police action. There is no evidence Stanton lacked the education or intelligence to reach any decision to consent. Stanton was a trained Alabama State Trooper and was fully aware of his rights. His willingness to consent suggests a belief that no incriminating evidence might be found. Accordingly, the court finds that Stanton voluntarily consented to the search.

Defendant was stopped driving by a house where a search warrant was being executed by officers who had stopped him before for excessive window tint. A drug dog was present and defendant consented to a sniff by the dog. It was valid. United States v. Kemp, 2010 U.S. Dist. LEXIS 52848 (S.D. Fla. May 19, 2010).*

The parents of a juvenile offender could not be ordered under the Fourth Amendment to undergo urinalysis as a condition of their daughter’s juvenile probation. They are presumed innocent, and such a test intrudes on their reasonable expectation of privacy under Ferguson because the test is for general crime control. State v. Doe II, No. 36121 (Idaho June 1, 2010) (opinion via Leagle, Inc.):

Although the Does’ daughter is on probation, it does not necessarily follow that they themselves are subject to a diminished expectation of privacy in their bodily fluids. Parolees, probationers, and indeed all criminal offenders are on a “continuum of state-imposed punishments. Samson v. California, 547 U.S. 843, 850, 126 S. Ct. 2193, 2198 (2006) (quotations omitted). The probationer can expect to be supervised by the State on the theory that the probationer, as a recent offender, “is more likely than the ordinary citizen to violate the law.” United States v. Knights, 534 U.S. 112, 119-20, 122 S. Ct. 587, 591-92 (2001). However, this theory only applies to offenders-probation, parole, and other criminal sanctions can only be imposed on individuals “after verdict, finding, or plea of guilty.” Griffin, 483 at 874, 107 S. Ct. at 3168. It is for this reason that the Ninth Circuit has found unconstitutional home urine testing for people released pending trial, reasoning that they have not yet suffered “judicial abridgment of their constitutional rights.” United States v. Scott, 450 F.3d 863, 872 (9th Cir. 2006). The Does have not been adjudicated guilty of any drug crime, nor has any neutral magistrate formally issued a warrant based on probable cause for such a criminal investigation. State v. Nunez, 138 Idaho 636, 642, 67 P.3d 831, 837 (2003) (citing United States v. Leon, 468 U.S. 897, 914, 104 S. Ct. 3405, 3416 (1984)). The Does are presumed innocent and are therefore not located anywhere on the “continuum of state—imposed punishments.” Aside from pointing to the possibility in their daughter’s presentence social investigation that the Does abused drugs, the State has not overcome any formal procedural safeguards to diminish the Does’ Fourth Amendment rights in their bodies. The Does therefore retain the full measure of Fourth Amendment privacy.

. . .

Just like the testing program in Ferguson, testing in this case is characterized by a general interest in law enforcement. The magistrate imposed the urinalysis requirement during juvenile delinquency proceedings under the JCA, which are quasi-criminal in nature. See I.C. § 20-508 (allowing courts to waive jurisdiction under the JCA so that the juvenile may be transferred to “adult criminal proceedings”). The magistrate’s order requires the Does to report to their daughter’s probation officer, who is an officer of the county required by law to “enforce probation conditions.” Id. §§ 20-529, -533(3). Nothing prevented the probation officer from conveying the Does’ test results to law enforcement. Their failure to comply could result in contempt sanctions, which would be brought and pursued by the prosecuting attorney. Indeed, the juvenile probation officer in this case reported the parents’ positive urinalysis results to the prosecutor. It also appears that such evidence could be used to obtain search warrants against the Does and would be admissible against the Does in further criminal proceedings for encouraging their daughter’s delinquency. See id. § 20-526 (punishing anyone “who by any act or neglect encourages, aids or causes a juvenile to come within the purview or jurisdiction of [the JCA]”).

The State contends that the goal here is primarily to rehabilitate the minor, not to enforce criminal sanctions. The U.S. Supreme Court dealt with a similar argument in Ferguson: ….

The police stopped a city bus with reasonable suspicion to believe that the defendant would be on the bus based on observations and investigation and learning that the defendant had left the scene of the alleged crime heading to the bus stop, witnesses saw him going that way, a man [sort of] matching his description was in the back of the bus as seen from the street [considering he was black and the community was nearly all Hispanic]. United States v. Nellon, 2010 U.S. Dist. LEXIS 12536 (S.D. Tex. February 11, 2010).

Severability of the parts of a warrant on a motion to suppress is preferred to suppressing everything. Elkins v. District of Columbia, 685 F. Supp. 2d 1 (D. D.C. 2010):

By suppressing the documents seized but not the testimony of the inspectors or the photographs, the Hearing Officer followed the doctrine of severability, separately considering evidence obtained from the illegal seizure versus the valid search. “In accordance with the purposes underlying the warrant requirement and the exclusionary rule, every federal court to consider the issue has adopted the doctrine of severance, whereby valid portions of a warrant are severed from the invalid portions and only materials seized under the authority of the valid portions, or lawfully seized while executing the valid portions, are admissible.” United States v. Sells, 463 F.3d 1148, 1154-55 (10th Cir. 2006); see also id. at n.1 (all federal circuits follow the doctrine of severability, though courts refer to it by different terms — severability, severance, redaction, or partial suppression) (citing In re Search Warrant Dated July 4, 1977, 667 F.2d 117, 133 (D.C. Cir. 1981), abrogated on other grounds, Horton v. California, 696 U.S. 128 (1990)).

Defendant clearly consented to a search of his car for stolen property, specifically electronics. Turning on a camera to look at the pictures did not exceed the scope of the consent, and the defendant had to understand that was likely from the blanket consent. Even if consent was exceeded, he had no standing in the stolen camera anyway. United States v. Guevara, 2010 U.S. Dist. LEXIS 52803 (W.D. Tex. May 27, 2010):

However, given that the officers were searching for stolen goods (and specifically electronics), it is entirely natural they would closely inspect any electronics in the car, and attempt to ascertain whether they belonged to Defendant or anyone else. It is well-settled if a defendant chooses not to place any explicit limitations in his response to an officer’s general request to search, this is considered evidence of general consent to search. Id. (citing United States v. Crain, 33 F.3d 480, 484 (5th Cir. 1994)). For instance, law enforcement officials are not required to separately request permission to search each container within a vehicle for which they have received consent to search. Id. (citing Jimeno, 500 U.S. at 252). The Fifth Circuit has repeatedly stated “the defendant, as the individual knowing the contents of the vehicle, has the responsibility to limit the scope of the consent.” Id. (quoting United States v. McSween, 53 F.3d 684, 688 (5th Cir. 1995). By assuring the officers there were no stolen goods in the car, Defendant granted consent without giving the officers any basis to think he was asserting an expectation of privacy in any of the goods in the vehicle. Because the officers did exactly what they had obtained consent to do–conduct a general search of the car for stolen electronics–the Court finds they did not exceed the scope of Defendant’s consent in this case.

. . .

The Fifth Circuit, along with other courts, has held (albeit in the slightly different context of electronic monitoring) a defendant cannot demonstrate a “legitimate expectation of privacy” such as is required to invoke the Fourth Amendment where the property in question is contraband or stolen goods, because persons can have no legitimate expectation of privacy in articles of this nature, which they have no right to possess. See, e.g., United States v. Pringle, 576 F.2d 1114, 1119 (5th Cir.1978) (holding “possessors of [contraband] have no legitimate expectation of privacy in substances which they have no right to possess at all.”); United States v. Moore, 562 F.2d 106 (1st Cir. 1977) (same). Likewise, it is well-settled a defendant has no legitimate expectation of privacy in a stolen vehicle, and thus has no standing to contest a warrantless search of the vehicle. United States v. Hensel, 672 F.2d 578 (6th Cir. 1981); United States v. Hargrove, 647 F.2d 411 (4th Cir. 1981). This reasoning is sound, and applies with equal force to the case at hand. Defendant cannot assert any legitimate expectation of privacy in a digital camera, which was stolen property and which he therefore had no right to possess. Thus, Defendant has no standing to object to the officers’ search of the camera’s contents, even if it did exceed the scope of his consent.

The Inviolate Home: Housing Exceptionalism in the Fourth Amendment by Stephanie Stern of Chicago-Kent College of Law to be published in Cornell Law Review, Vol. 95, 2010. Abstract:

The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces but do not harm interpersonal and domestic privacy. Contrary to claims in the case law and commentary, there is little evidence to support the broad territorial conception of privacy inherent to the “sanctity of the home,” a vital personhood interest in the physical home, or even uniformly robust subjective privacy expectations in varying residential contexts. Similarly, closer examination of the political and historical rationales for housing exceptionalism reveals a nuanced, and equivocal, view of common justifications for privileging the home. This Article advocates replacing the broad sweep of housing exceptionalism, and its emphasis on the physical home, with a narrower set of residential privacy interests that are more attentive to substantive privacy and intimate association.

Our server (not this site) was hacked for over a week by Triple Play Services of the Ukraine (IP address (109.86.128.0), Mihail A.Vovk and Kharkov Triolan owners. They were sucking all the bandwidth. Finally, the hack was isolated in the act. They’ll probably be back.

There is a move on in Congress to require prepaid cell phones be registered to a name. See yesterday’s NYT: It’s Not Just Drug Dealers Who Buy Prepaid Phones. The “Times Square bomber” had such a phone.

On Reason.com from Rodney Balko: In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recording Cops. A motorcyclist had a helmetcam and, after his stop, the police raided his house for “wiretapping” them. He faces up to five years in prison after he posted the video of the officer pulling a gun on him on YouTube.

Cops have body cams. And they, of course, are exempt from the Fourth Amendment.

On the ACLU Blog of Rights: Reviving the Fourth Amendment and American Privacy:

. . .

Underlying all this, however, is a looming problem that has little to do with 9/11: the fact that the Supreme Court’s interpretation of the Fourth Amendment has gone badly off track. With all the privacy battles I’ve been involved in over the last nine years, that constitutional problem has always hung over us, often underlying or worsening more particular privacy issues such as data mining or financial privacy.

Now, I’ve written a paper for the American Constitution Society on this: Crisis in Fourth Amendment Jurisprudence.

[The link in the article did not work; this one does.]

From the Daily Princetonian: Kagan ’81: Master’s thesis in politics:

As the Senate Judiciary Committee prepares for the upcoming confirmation hearings of Elena Kagan, senators have been poring through thousands of pages documenting many of Kagan’s legal and political views. Among those pages, the New York Times reports , is her Master’s thesis in politics, written at Oxford in 1983, in which she discussed the history of the exclusionary rule (an element of Fourth Amendment jurisprudence) to advance an argument about how courts should go about effecting social change.

The thesis is particularly interesting because it comments on the issue of judicial activism—the charge leveled by judicial conservatives that the rulings of liberals on the bench have been guided not by legal principles, but instead by judges’ personal political preferences. Kagan’s argument in the thesis offers fodder to both sides of the debate. …

Border laptop removal case reports

The post from 5/26 on the removal of a laptop from the border for a later search on reasonable suspicion was picked up by Computerworld: Border searches of laptops may be conducted off-site for cause, court rules, but the link in the article doesn’t work.

AVN.com picked it up from them. [That’s Adult Video News.]

How the Arizona “papers please” law might work

From my friend Tim Lynch at the Cato Institute: Immigration Law–Up Close with video of a stop.

[And, sorry about the error notices that have been showing. We moved to a new server for improved service, and it hasn’t been working out very well.]

The government failed to show articulable reasonable suspicion for prolonging the stop. United States v. Mendez, 2010 U.S. Dist. LEXIS 49534 (M.D. Ga. May 18, 2010)*:

This is a fairly close case. The question boils down to whether there was an articulable suspicion which would justify prolongation of the traffic stop to the point where permission to search was asked for and granted. In the Court’s opinion, the reasons given by the deputies to support their suspicion do not support anything in this case. The reasons are all reasons the Court has heard many times in many cases. If Defendant had rented the car for one day and said he was going to Florida, the circumstances may have been suspicious, but there is nothing suspicious about going from Gwinnett County to Moultrie and back in one day. Similarly, if Defendant had been going from Gwinnett County to Florida, the absence of luggage may have been sufficient to raise articulable suspicion. Further, while Broce testified that Defendant acted extremely nervous during the traffic stop, to the extent one can observe nervousness on a tape, the Court saw no nervousness on Defendant’s part during the traffic stop. Defendant stood there and responded to both officers, and in fact, the Court has never seen anyone act less nervous. Finally, the fact that Defendant was coming from Gwinnett County by itself does not support an articulable suspicion of criminal activity.

[Is this dangerously close to Arvizu’s “divide and conquer” of reasonable suspicion but with a twist? After all, the court completely discredits nervousness.]