The search warrant affidavit referred to the offense under investigation as first degree murder, but it was merely assault. This did not, as defendant argues, make it invalid per se. “The courts also ‘allow some latitude for honest mistakes’ made in connection with warrants. United States v. Owens, 848 F.2d 462, 464 (4th Cir. 1988). Because there was probable cause, the warrant’s reference to ‘first degree murder’ was harmless error. Accordingly, Hill’s motion to suppress the gun was denied.” United States v. Hill, 2010 U.S. Dist. LEXIS 49815 (D. Md. May 20, 2010).*

The electric company’s revenue loss investigator received a tip of electricity theft from the police and went to investigate. That did not make him an agent of the state. In consent cases, there is a two step process for analyzing consent. United States v. Viamontes, 2010 U.S. Dist. LEXIS 49616 (M.D. Fla. May 6, 2010)*:

“For consent given after an illegal seizure to be valid, the Government must prove two things: that the consent is voluntary, and that the consent was not the product of the illegal seizure.” Santa, 236 F.3d at 676. Under this standard, the voluntariness of consent is only a threshold requirement; voluntariness does not, in itself, remove the taint of an illegal seizure. Id. The second inquiry focuses on causation: “[w]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)) (emphasis added).

Law.com: Student’s Privacy Rights Violated in Pa. ‘Sexting’ Case, ACLU Suit Says by Shannon P. Duffy The Legal Intelligencer:

The hot-button issue of “sexting” is coming back to court and this time the ACLU is setting out to establish that high school students have a right to privacy that includes the contents of their cell phones.

Biography Channel faces lawsuits over aired ride alongs on Reporter’s Committee for Freedom of the Press:

The Biography Channel and its parent company face two federal lawsuits that look to test the limits of media liability for alleged civil rights violations that occur during police ride-along programs.

So far, only the Ninth Circuit has held that the news media can be liable for civil rights violations when they entered private property with officials.

Defendant’s car was stopped because there was a person in it wanted for drug offenses. The officers then called a drug dog that alerted on the car. The defendant did not show that the drug dog was not a “well trained” dog [and why is it the defendant’s burden to show that?]. As to the search of the defendant’s house, there was a question of standing since he had been in jail for a year and the rent was unpaid, but the standing question does not need to be decided. Instead, it was a private search by the landlord. United States v. Claude X, 2010 U.S. Dist. LEXIS 49046 (W.D. Mo. April 16, 2010).*

The government never conceded that defendant had standing in the apartment with a working meth lab. Anyway, standing was decided in the direct appeal, so it could not be raised in this § 2255. Beckstead v. United States, 2010 U.S. Dist. LEXIS 49138 (D. Utah May 18, 2010).*

Defendant consented to the search for weapons. He even volunteered it before the officer could ask. United States v. Griffin, 2010 U.S. Dist. LEXIS 49139 (D. Utah May 17, 2010).*

ABA Annual Meeting on Fourth Amendment and Computers

Search and Seizure Evidence in the Computer Age: Fourth Amendment Implications, August 5th, San Francisco.

DE strip search case settled

The private prison in Delaware County has settled the strip search class action against it for $3M for 10,000 nonviolent non-drug arrestees. Settlement reached in strip-search lawsuit.

Ex-Cop talks about lying cops

Ex-Cop Goes Rogue on the Drug War, Tells Pot Smokers How to Outsmart the Police on AlterNet.

College essays; I guess for sale?

School searches PowerPoint: Fourth Amendment Search & Seizure Issues on Campus.

More on the Detroit reality TV SWAT child killing in raiding the wrong house on ABAJ.com: Playing to the Cameras? Suit Filed Over Taped Police Raid That Resulted in Child’s Death. The complaint is here.

House votes to expand national DNA arrest database by Declan McCullagh on CNET News:

Millions of Americans arrested for but not convicted of crimes will likely have their DNA forcibly extracted and added to a national database, according to a bill approved by the U.S. House of Representatives on Tuesday.

By a 357 to 32 vote, the House approved legislation that will pay state governments to require DNA samples, which could mean drawing blood with a needle, from adults “arrested for” certain serious crimes. Not one Democrat voted against the database measure, which would hand out about $75 million to states that agree to make such testing mandatory.

The government failed to show probable cause for issuance of the search warrant that the item sought (a hunting bow) was evidence of a crime. However, the search warrant was not “so lacking” in probable cause that the good faith exception did not apply. United States v. Ray, 2010 U.S. Dist. LEXIS 48369 (E.D. Mich. April 20, 2010)*:

The “so lacking” test is less demanding than the “substantial basis” test for determining the existence of probable cause so the mere lack of probable cause does not preclude the application of the good faith rule. Washington, 380 F.3d at 241. The present affidavit is not a “bare bones” affidavit that contains merely conclusions by the affiant.** D/Sgt. Gillet had gathered information from defendant and his wife, from the investigation of the break-in at Ed’s Archery, and from the manufacturer of the Matthews FX bow. These facts, rather than conclusions, were included in the affidavit and presented to the judge who decided probable cause did exist. Also, the warrant had been approved by an assistant prosecutor before being submitted to the judge. The nexus between the Matthews FX bow and the location to be searched was very clear. A reasonably trained officer would not have known the search was illegal despite the decision by the judge to issue the warrant. The undersigned concludes that the facts in the affidavit, while perhaps not amounting to a substantial basis to issue the search warrant, were sufficient to not be so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The exclusionary rule need not be applied to these circumstances despite the lack of probable cause for the issuance of the search warrant.

** A bare bones affidavit is one that contains “suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge.” United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996).

In Detroit, Family of Michigan child killed in raid sues police on CNN.com where the child was first burned by a flash bang device and then shot and killed by the SWAT Team. See also Detroit Free Press which also has plaintiff’s counsel alleging a police coverup.

To Avoid ‘Plain View,’ Investigators Need Blinders by Leonard Deutchman of The Legal Intelligencer (Law.com) discussing Comprehensive Drug Testing. The bottom line:

The prudent course for law enforcement to follow when officers come upon evidence of a different crime than the one under investigation is to cease searching and obtain a warrant for that new evidence. Law enforcement officers examining computers should follow that course unless exigencies prohibit it. If they do not, courts will fashion remedies and law enforcement will find those remedies unpalatable, whether they are the protocols of the 9th Circuit or old-fashioned suppression of evidence.

Seizure and search incident of cell phones and their contents from a car with $85,000 hidden in the gas tank were lawful. United States v. Monson-Perez, 2010 U.S. Dist. LEXIS 20575 (E.D. Mo. January 29, 2010):

In United States v. James, 2008 WL 1925032 at *3-9 (E.D.Mo., April 29, 2008) the court held that “because probable cause existed to believe that evidence of a crime would be found in the cell phone call records and address book, the automobile exception allows the search of the cell phone just as it allows a search of other closed containers found in vehicles.” See also United States v. Fierros-Alvarez, 2008 WL 1826188 (D.Kan., April 23, 2008) (automobile exception justified search of cell phone found in vehicle). Therefore, the seizure of the cell phones and the extraction of data from them was legal.

Questions of fact remain on summary judgment for whether plaintiffs had a reasonable expectation of privacy in an apartment that the landlord was letting them stay in at the end of a leasehold. The defendants failed to show as a matter of law there was no expectation of privacy. The defendants also did not show as a matter of law that the emergency exception applied. Espinosa v. City & County of San Francisco, 598 F.3d 528 (9th Cir. 2010).*

As officer approached the defendant he discarded a gun. That was abandonment in response to lawful police conduct under Hodari D. and waiver of any expectation of privacy. United States v. Hunter, 2010 U.S. Dist. LEXIS 20804 (N.D. Cal. February 11, 2010).*

Evidence derived from defendant’s allegedly illegal arrest did not make it into the search warrant affidavit, which had plenty of probable cause; an independent source was shown. United States v. Strong, 2010 U.S. Dist. LEXIS 20851 (D. Minn. February 1, 2010).*

A vehicle frisk would have been valid here under Gant and Long. Here, however, the officer lacked any reasonable suspicion. United States v. Stewart, 675 F. Supp. 2d 973 (D. Neb. 2009)*:

Moreover, even if the officers’ testimony that they subjectively feared danger is credited, the testimony does not amount to a showing that a reasonably prudent officer would be warranted in the belief that his safety or that of others was in danger under these circumstances. Deputy Woodward’s testimony that he observed allegedly furtive gestures is explained by the fact that the defendant was searching for his identification. Moreover, a reasonable apprehension of danger would have justified a pat-down or a search of the defendant’s immediate area at that time, rather than later. The continued detention of the defendant for the supposed purpose of completing a field interview card is at odds with the professed reason for the search of the car. The video shows that Deputy Woodward was searching the car contemporaneously with the “field questioning” of the defendant. The officers had received no information from the computer records check from which they could conclude that the defendant was potentially armed and dangerous. Though they knew he had been convicted of a felony, they testified that they did not know the details of his conviction. Status as a felon and criminal history that suggests some degree of violent behavior does not create suspicion of danger commensurate with a full-scale search of a vehicle.

Notably, this was not a traffic stop. There are no allegations of any motor vehicle violations. The defendant offered a reasonable explanation for his presence in the neighborhood at the late hour. His references to a woman’s “boyfriend” and “husband” are not necessarily inconsistent and, even if they are, would not lead to any inference of dangerousness. The officers expressly disavowed any intent to arrest or charge the individual with possession of drug paraphernalia.

Federal warrants issued by Maine Superior Court judges are valid under Rule 41. United States v. Pressey, 674 F. Supp. 2d 301 (D. Me. 2009).*

In the case of the bank robber whose surveillance photograph was seen by his cop son who went to his house looking for him and found evidence of the bank robbery in plain view (United States v. Ginglen, 467 F.3d 1071 (7th Cir. 2006) posted here), his knowing and intelligent guilty plea was a waiver of all issues. Ginglen v. United States, 2009 U.S. Dist. LEXIS 117752 (C.D. Ill. December 17, 2009).*

Defendant led police on a high speed chase as they closed in to arrest him for a drug offense. (“Cubit alleges no facts demonstrating that a reasonable innocent person would have led law enforcement on a high speed chase when officers initially attempted to stop him.”) Defense counsel was not ineffective for not challenging his arrest. Cubit v. United States, 2009 U.S. Dist. LEXIS 117715 (W.D. Mo. December 16, 2009).*

“Jessica Imran breathed her last on the floor of her Pawtucket home after suffering a gunshot wound to her head and neck in the early hours of July 27, 2006, after two men, one of whom was armed, forced their way into her apartment.” You know where this is going. The third party’s consent was valid. A security sweep led to observations that led the officers to ask for third party consent, which was valid because she only “wanted everything to end,” which does not make it involuntary. State v. Shelton, 990 A.2d 191 (R.I. 2010)*:

After careful and independent review of the record, mindful that we must view the trial justice’s findings of fact through a prism of deference, it is our opinion that Ms. Alvarez voluntarily consented to a search of her apartment, and the police’s subsequent search and seizure of evidence from her bedroom easily passes constitutional muster. See Texter, 923 A.2d at 576. Although Ms. Alvarez later testified that she gave the officers consent to search her apartment because she “just wanted everything to end” and further that she was aware that the police had already been in her apartment, particularly her bedroom, when they performed the protective sweep, this merely represents her rationale for providing consent; it does not preclude a determination that her consent was given voluntarily.

Officers went into defendant’s backyard about midnight and looked around. They saw “no trespassing” signs on the building, which the court believes meant the backyard and not just the building (the building was a given). Going into the backyard was unreasonable. State v. Kruse, 306 S.W.3d 603 (W.D. Mo. 2010)*:

This is not a case where the police officers merely knocked on the front door to ask whether Beel was present. The officers went into the back yard before trying the front door. The officers did not fear present danger or present destruction of evidence. When the officers arrived at Kruse’s residence, they called for and took the time to wait for additional officers to arrive. Beel’s van had a flat tire. Beel was presumably unaware of police presence, and his van was essentially immobile. Prior to the police entry into the back yard, Beel had no motive to flee or destroy evidence. The police acknowledged that the situation did not call for immediate action. The officers had time to seek a warrant to search for Beel. In the unlikely case the warrant were denied, the officers still could have come back and knocked on the front door to ask about Beel.

Defense counsel was not ineffective for not moving to suppress a search of a meth lab entered on exigent circumstances. State v. Madden, 2010 Ohio 176, 2010 Ohio App. LEXIS 145 (4th Dist. January 14, 2010).*

In a child pornography case, the record supports the trial court’s conclusion that defendant’s wife consented to a seizure and search of their computer on which she admitted to seeing young girls in a state of undress. The issue of password protection of part of the computer as creating a privacy interest in it was not raised before the trial court and would not be considered on appeal. State v. Knisley, 2010 Ohio 116, 2010 Ohio App. LEXIS 94 (2d Dist. January 15, 2010).*

A controlled buy that was seen by the police to a CI was an adequate basis for defendant’s stop. State v. Johnson, 2010 Ohio 139, 2010 Ohio App. LEXIS 111 (5th Dist. January 19, 2010).*

Arrest for an infraction of driving with an open container did not offend the Fourth Amendment, despite state law, applying Virginia v. Moore. United States v. Burtton, 599 F.3d 823 (8th Cir. 2010):

Here, Burtton’s violation of the open container law constituted an “infraction,” not a misdemeanor. Therefore, the question is whether the commission of an “infraction” in the presence of officers supplied the officers with probable cause to arrest Burtton under the Fourth Amendment. “In a long line of cases, [the Supreme Court has] said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.” Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 1604, 170 L. Ed. 2d 559 (2008) (emphasis added) (citing Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001); Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004); Gerstein v. Pugh, 420 U.S. 103, 111, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); Brinegar v. United States, 338 U.S. 160, 164, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)).

. . .

In light of Moore, “if an arrest is otherwise reasonable, the fact that it is not for an ‘arrestable’ offense does not make it unconstitutional.” Thomas v. City of Peoria, 580 F.3d 633, 637 (7th Cir. 2009) (citing Moore, 128 S. Ct. at 1606-07). “[T]he Fourth Amendment does not forbid an arrest for a ‘nonjailable’ offense.” Id. at 638 (rejecting argument of arrestee, who was stopped by a city police officer for a traffic violation and arrested after the officer mistakenly identified him as an individual who had nine unpaid parking tickets and a warrant for his arrest, that the city had an unconstitutional policy of arresting people for not paying their parking tickets).

Applying the rationale of Moore, Bell, and Rose, Burtton unquestionably committed a “minor crime”–violation of an open container law–in the presence of Officer Maloney when he was holding a 12-ounce plastic cup suspected of containing an alcoholic beverage in close proximity to a liquor bottle on the floor near Burtton. As a result, Officer Maloney had probable cause under the Fourth Amendment to arrest Burtton and conduct a search incident to arrest. See United States v. Pratt, 355 F.3d 1119, 1121 (8th Cir. 2004) (“[I]f an officer has arrested the individual, the officer may search the individual’s person incident to that arrest and may reach into his pockets.”). Therefore, no redaction of evidence is required from the affidavit tendered in support of the search warrant application, and Burtton’s Mirandized statement at the police station, admitting that there was marijuana residue at his home, is not the fruit of an illegal search.

The government could not use a traffic offense that occurred one hour earlier as a basis for a stop. Here, however, there was separate reasonable suspicion for the stop. United States v. Mendonca, 682 F. Supp. 2d 98 (D. Mass. 2010):

The government contends that the vehicle stop was permissible based upon the traffic violations observed by Sergeant Mello and relayed to Officer Saisselin. It argues that postponing the stop for roughly one hour “was not unreasonable” in light of the totality of the circumstances, including ongoing surveillance and Mendonca’s arrest history. The government also cites two cases upholding a traffic stop as reasonable where officers delayed between the infraction and the stop. See United States v. Henderson, 229 F. Supp. 2d 35, 37 (D. Mass. 2002); State v. McComb, No. 21963, 2008 Ohio 425, 2008 WL 314906, at *1-2 (Ohio Ct. App. Feb. 1, 2008).

The government’s argument is unpersuasive and, accordingly, the stop will not be upheld based upon the traffic violations. In short, the government has not satisfied the Court that the lengthy delay between the infractions and the stop was reasonable or permissible. Cited cases are all clearly distinguishable because in none did the hiatus approach the duration of the delay here (one hour) nor, in any of those cases, did the defendant park and load suspicious packages into the vehicle in the meantime. Although a slight delay to gain a tactical advantage is entirely reasonable, see also United States v. Scopo, 19 F.3d 777, 779-80, 782 (2d Cir. 1994); United States v. Sweeney, No. 07-cr-400, 2007 U.S. Dist. LEXIS 95363, 2007 WL 4522237, at *5 (N.D. Ohio Dec. 18, 2007), no such tactics were necessary here where Mendonca 1) was driving in broad daylight, 2) in a relatively safe area and 3) parked of his own volition.

Here, the obvious rationale for the stop was to inspect what Mello and his team thought to be suspicious activity at the Extended Stay. Although pretextual stops based upon traffic infractions are generally permissible, see Whren, 517 U.S. at 813, the government has failed to justify the stop on such grounds here. In sum, a completed traffic misdemeanor cannot hang over a suspect indefinitely until a time at which he has engaged in some other suspicious activity that officers believe warrants a pretextual stop.

Officers do not violate Franks by not investigating further to negate what they already know. United States v. Lebowitz, 647 F. Supp. 2d 1336 (N.D. Ga. 2009):

Courts have uniformly rejected defense arguments that further investigation should have been conducted to either corroborate or to negate the information in the affidavit or else the search warrant lacks probable cause. See, e.g., United States v. Shields, 458 F.3d 269, 280 (3rd Cir. 2006) (rejecting the defendant’s contention that affidavit lacked probable cause because FBI could have conducted more investigation, the court stated that “[w]hether the FBI could have provided more information is not the benchmark,” the question is whether the “valid information it supplies satisfies the ‘fair probability’ standard”); United States v. Gourde, 440 F.3d 1065, 1072-73 (9th Cir. 2006) (en banc) (finding that the defendant’s argument converted the “fair probability” standard to “a test of near certainty[,]” the court held that “Gates, however, does not compel the government to provide more facts than necessary to show a ‘fair probability’ that Gourde had committed a crime”); United States v. Dale, 991 F.2d 819, 844, 301 U.S. App. D.C. 110 (D.C. Cir. 1993) (rejecting the defendant’s argument that probable cause “requires an officer to exhaust every possible lead, interview all potential witnesses, and accumulate overwhelming corroborative evidence”). The question in this case is not whether further investigation would have corroborated the statement in the affidavit that Defendant used his home computer but whether the affidavit’s factual statements, based on facts known to the affiant at that time, establish a “fair probability” that the home computer was used to contact the victim.

Likewise, courts have rejected defense arguments that failure to conduct such investigations constitutes a reckless disregard for the truth as required to satisfy the Franks’ test. …

The court erroneously granted the defendant’s motion to suppress under Gant. The object of the search was drugs and Gant recognizes that as a permissible search incident. United States v. Page, 679 F. Supp. 2d 648 (E.D. Va. 2009).*

The Second Circuit affirmed the dismissal of a case over whether the NSA recorded conversations between Gitmo defendants and their lawyers. The government did not even have to admit or deny the existence of the records under the Glomar doctrine. Wilner v. National Security Agency (08-4726-cv December 30, 2009) (Fourth Amendment not cited). See Law.com.

Anonymous 911 caller’s veracity was not established by the state. “Without the 911 call being offered in evidence, we cannot ‘conclude that the caller placed his anonymity at risk or was otherwise reliable.'” Corroboration of only innocent details was not enough. The protective sweep of defendant’s car was unjustified. Commonwealth v. Mubdi, 456 Mass. 385, 923 N.E.2d 1004 (2010).*

An off-duty drug dog officer came to a traffic stop and ran around the car while the first officer was writing a ticket for a cracked windshield. The stop was not unreasonably extended by this action. Apparently the dog alerted before the ticket was written. Lovato v. State, 2010 WY 38, 228
P.3d 55 (2010).*

The mere fact a state prosecutor nolle prossed charges against the defendant does not show that there was a Fourth Amendment problem with the case. United States v. Mallett, 2009 U.S. Dist. LEXIS 98595 (N.D. Ind. October 22, 2009):

The fact that the state charges involving the April drugs were dismissed by the state court does not establish that the drug evidence was seized in violation of the Defendant’s Fourth Amendment rights. Cf. Cieslowski, 410 F.3d at 360 (noting that a state prosecutor’s concession of a Miranda violation “is certainly not binding on the federal court”). Here, there was not even a concession of a constitutional violation–just the state’s exercise of discretion to dismiss the case for insufficient evidence to proceed to trial. The Defendant’s reliance on the state court dismissal does not prove the existence of a viable suppression argument. The Defendant’s confidence that a motion to suppress would have been successful because the search was conducted without a warrant is likewise misplaced because it fails to consider exceptions to the warrant requirement, including exigent circumstances, search incident to arrest, and consent.

Even if the Court were to assume that the Defendant could show that he would have most likely prevailed on a motion to suppress, the Defendant cannot establish the second prong of the Strickland analysis–that he was prejudiced by counsel’s actions.

Defense counsel’s failure to argue a denied suppression motion on appeal where the issue was clearly unmeritorious was not IAC. United States v. Throckmorton, 2009 U.S. Dist. LEXIS 98352 (W.D. Pa. October 22, 2009).*

Defense counsel adequately presented a consent search claim that failed, and he was not ineffective for not citing one case that did not even apply on its facts. Herndon v. United States, 2009 U.S. Dist. LEXIS 98526 (M.D. Tenn. October 22, 2009).*

Allegation in 1983 case that police arrested plaintiff for possession of marijuana knowing he was a licensed medical marijuana user stated a claim for relief. Allen v. Kumagai, 356 Fed. Appx. 8 (9th Cir. 2009) (unpublished).*

Questions during a traffic stop about weapons in the car were not in violation of the Fourth Amendment. Defendant admitted that he had a shotgun. United States v. Everett, 601 F.3d 484, 2010 FED App. 0095P (6th Cir. 2010):

Defendant Harvey Everett III was convicted of being a felon in possession of a firearm after he volunteered during a traffic stop, in response to the detaining officer’s questioning, that he had a shotgun in his car. He appeals his conviction, arguing that the shotgun should have been suppressed because the officer’s questioning on a subject unrelated to his traffic offense violated the Fourth Amendment. This case presents us with an issue of first impression in this circuit: under Muehler v. Mena, 544 U.S. 93 (2005), and Arizona v. Johnson, 129 S. Ct. 781 (2009), when, if ever, may an officer conduct questioning during a traffic stop that (1) is unrelated to the underlying traffic violation, (2) is unsupported by independent reasonable suspicion, and (3) prolongs the stop by even a small amount? We hold that the questioning here did not violate the Fourth Amendment, and accordingly, we affirm.