Defendant’s BAC level for DUI was obtained in violation of HIPAA since a trial subpoena was issued by the clerk without a court order, but the court refuses to suppress the evidence as a result because HIPAA does not require it. United States v. Elliott, 676 F. Supp. 2d 431 (D. Md. 2009):

Neither Sutherland nor Keshecki compel a finding that medical information obtained through the use of an improper subpoena under HIPAA’s law enforcement exception should be prohibited from use at trial. As mentioned above, HIPAA itself does not provide that medical information so obtained must be suppressed. The Court is unaware of any authority which compels the suppression of the records at trial. Nevertheless, the Court must still determine whether or not suppression is appropriate. Federal courts have acknowledged the importance of protecting a patient’s right to privacy in medical records. That right, however, is not absolute, and must be balanced against the government’s interests in obtaining the information. Sutherland,143 F. Supp. 2d 609, 611-612 (W.D. Va. 2001). As the court in Zamora observed “…HIPAA was passed to ensure an individual’s right to privacy over medical records, it was not intended to be a means for evading prosecution in criminal proceedings”. Zamora, 408 F. Supp. 2d at 298.

Applying a balancing test, the Court finds that the Government’s interest in obtaining records related to the defendant’s blood alcohol concentration on the day of the accident are compelling. Federal, state and local authorities have a strong interest in prosecuting people who drive while under the influence of alcohol and/or drugs. As the Supreme Court noted “No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.” Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 2485, 110 L. Ed. 2d 412 (1990). “Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.” Sitz, 110 S. Ct. at 2485-86. In this case the defendant was involved in a serious accident in which she suffered serious personal injuries. ….

The government failed to show an emergency justification for entry without a warrant. United States v. Espinoza, 2009 U.S. Dist. LEXIS 100783 (E.D. Cal. October 15, 2009):

The Court is not persuaded that either the exigency or emergency exceptions to the warrant requirement justify the officers entering Defendant’s home. Significantly, both of those exceptions require some amount of urgency, and the Government has failed to show that any such circumstances existed in this case. As Defendant argues, there were no exigent circumstances or public safety reasons giving rise to an emergency/exigent circumstance to justify entry into the house. The cases cited by the Government can be distinguished. Cf. United States v. Russell, 436 F.3d 1086 (9th Cir. 2006) (Defendant made two calls to police for emergency assistance, he gave two different names in the calls, and he led police to believe that there was another person involved in the shooting); also cf. Brigham City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (Officers observed an altercation inside the house and had a reasonable basis for believing both an injured person may need help and that the violence they observed was just beginning and needed to be stopped). Under similar circumstances to the instant case, the Ninth Circuit found police warrantless entry into a tent was illegal. See United States v. Gooch, 6 F.3d 673 (9th Cir. 1993). Defendant’s home deserves more protection.

In addition, the Declaration of Officer Haug that Defendant was asked if anyone else was in the house before police entered is not credible.

Even though a state statute may impose a higher probable cause standard, the Fourth Amendment still governs in a § 1983 case on the level of PC. Holder v. Town of Sandown, 585 F.3d 500 (1st Cir. 2009).

Police, probation, and parole officers could conduct a protective sweep based on the information they had about the premises. United States v. King, 2009 U.S. Dist. LEXIS 100460 (E.D. Wis. April 27, 2009).*

Reasonable suspicion found from being in a high crime area at 3:30 am dressed in gang colors and suspicion of being involved in a stolen vehicle. United States v. Santio, 351 Fed. Appx. 324 (10th Cir. 2009) (unpublished).*

A DNA profile in an arrest warrant issued the day before the statute of limitations for the offense satisfied the Fourth Amendment particularity requirement. Later match of prison collected DNA led to defendant. And, extraction of defendant’s DNA as a convict under state statute in effect in 1999 which might have been error did not mandate application of the federal exclusionary rule. People v. Robinson, 47 Cal. 4th 1104, 224 P.3d 55, 104 Cal. Rptr. 3d 727 (2010):

With regard to any privacy interest in identifying information, it is established that individuals in lawful custody cannot claim privacy in their identification. “Though, like fingerprinting, collection of a DNA sample for purposes of identification implicates the Fourth Amendment, persons incarcerated after conviction retain no constitutional privacy interest against their correct identification.” (Groceman v. U.S. Dep’t of Justice (5th Cir. 2004) 354 F.3d 411, 413–414.) In Kincade, the court explained that “the DNA profile derived from the defendant’s blood sample establishes only a record of the defendant’s identity—otherwise personal information in which the qualified offender can claim no right of privacy once lawfully convicted of a qualifying offense (indeed, once lawfully arrested and booked into state custody). For, as we recognized in Rise, ‘[o]nce a person is convicted of one of the felonies included as predicate offenses under [the Act], his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling.’ 59 F.3d 1560; see also Groceman [, supra,] 354 F.3d 413–[4]14; Jones [v. Murray (4th Cir. 1992)] 962 F.2d [302,] 306–307.” (Kincade, supra, 379 F.3d at p. 837.)

. . .

The fact that defendant Robinson’s blood was collected in violation of our state law at the time does not alter our Fourth Amendment analysis. That law was more restrictive than the Fourth Amendment and, for Fourth Amendment purposes, it is not dispositive that a search and seizure was not permissible under state law. …

. . .

However, even assuming, without deciding, that the state statutory violation that led to the nonconsensual extraction of defendant’s blood for the March 2, 1999 blood sample constituted a Fourth Amendment violation, application of the federal exclusionary rule would not be appropriate for such a violation. (See Hudson v. Michigan (2006) 547 U.S. 586, 590, 602 [165 L. Ed. 2d 56, 126 S. Ct. 2159] (Hudson) [statutory knock-and-announce violation does not necessarily trigger the exclusionary rule].) …

2. The Particularity Requirement

Defendant contends a John Doe arrest warrant accompanied by a DNA genetic profile does not constitute “a means of description ‘reasonable to the circumstances’” because, rather than “describ[ing]” the person to be arrested, it only “identifies a defendant by the use of a fictitious name without any description whatsoever” and therefore does not describe that person “with sufficient certainty.” Defendant argues that a fictitious name or a John Doe name is insufficient to identify anyone, and therefore is insufficient to identify anyone with particularity.

Under both federal and state law, an accusatory pleading or arrest warrant may issue with a fictitious name provided it names or describes the person being charged with reasonable certainty. (See, e.g., Cabell, supra, 153 U.S. at p. 85 [an arrest warrant “must truly name [the person charged], or describe him sufficiently to identify him”]; People v. Montoya, supra, 255 Cal. App. 2d at pp. 142–143; Ernst v. Municipal Court of Los Angeles (1980) 104 Cal. App. 3d 710, 718 [163 Cal. Rptr. 861].) As the court in Montoya explained, “[w]here a name that would reasonably identify the subject to be arrested cannot be provided, then some other means reasonable to the circumstances must be used to assist in the identification of the subject of the warrant.” (Montoya, supra, 255 Cal. App. 2d at p. 142, citing U. S. v. Swanner (E.D. Tenn. 1964) 237 F. Supp. 69, 71, italics added; see also Blocker v. Clark (1906) 126 Ga. 484 [54 S.E. 1022]; 3 LaFave, Search and Seizure (3d ed. 1996 & Supp. 2003) § 35.1(g).)

See State v. DNA Profile; Jurist.

Driver’s license and vehicle registration checkpoint in Asheville, NC was properly set up and conducted. Defendant was a passenger in a vehicle stopped, and he interfered with the conversation with the driver and the driver was removed from the car. He furtively put something away, and that led officers to look to see if it was a weapon, which it was. United States v. Henson, 351 Fed. Appx. 818 (4th Cir. 2009) (unpublished):

In determining the constitutionality of a checkpoint, the court must inquire into both the primary purpose and the reasonableness of the checkpoint. If the primary purpose of the checkpoint was to advance “the general interest in crime control,” Edmond, 531 U.S. at 48, it is per se invalid under the Fourth Amendment. United States v. Faulkner, 450 F.3d 466, 469-70 (9th Cir. 2006); Mills v. Dist. of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009). If the primary purpose was valid, the court must then judge the checkpoint’s reasonableness on the basis of individual circumstances. Illinois v. Lidster, 540 U.S. 419, 426 (2004). This requires balancing “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.'” Id. at 420, 427 (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). Factors to weigh intrusiveness include whether the checkpoint: (1) is clearly visible; (2) is part of some systematic procedure that strictly limits the discretionary authority of police officers; and (3) detains drivers no longer than is reasonably necessary to accomplish the purpose of checking a license and registration, unless other facts come to light creating a reasonable suspicion of criminal activity. McFayden, 865 F.2d at 1311-12 (citing Prouse, 440 U.S. at 662; Martinez-Fuerte, 428 U.S. at 558-59; Brown, 443 U.S. at 51).

With this framework in mind, after reviewing the parties’ briefs and the materials submitted in the joint appendix, we find the district court did not err in accepting the recommendation of the magistrate judge and in concluding that the primary purpose of the checkpoint was not general crime control, but rather to promote traffic safety by allowing police to check drivers’ licenses and vehicle registration. The court’s reasonableness determination with respect to the checkpoint is also sufficiently supported by the record. Therefore, the district court properly denied Henson’s motion to suppress on the ground that the checkpoint stop did not violate Henson’s Fourth Amendment rights.

Defendants appeared nervous crossing through Customs in a mobile home into Vermont, and the vehicle was sent for a search (“secondary scan”) which produced ammunition, a holster, and a bulletproof vest. The vehicle was then subjected to a gamma-ray VACIS (“Vehicle and Cargo Inspection System”) which was “anomalous.” A dog sniff occurred, and drugs were found. None of this required reasonable suspicion. United States v. Cybulski, 2009 U.S. Dist. LEXIS 102600 (D. Vt. October 29, 2009).

The court does not credit the officer’s testimony that the license plate light was out as the justification for the stop, and this is a failure of proof. United States v. Pate, 2009 U.S. Dist. LEXIS 102902 (S.D. Ohio October 19, 2009):

The Court finds that the evidence presented by the Government does not demonstrate that Officer Bemerer had a “particularized and objective basis” for suspecting Pate of wrongdoing. The only factual evidence presented by the Government with respect to the illumination of the license plate was not sufficiently particularized to this case. Rather, the testimony about this incident was indistinct from what Officer Bemerer does “all the time.” In the absence of testimony concerning specific facts particular to the officer’s decision to stop Pate, the Court cannot conclude that the Government met its burden of establishing that the officer had an objective and particularized basis for suspecting Pate of wrongdoing.

Without telling us what it is, the court concludes there was reasonable suspicion for the stop. United States v. Stewart, 352 Fed. Appx. 322 (11th Cir. 2009) (unpublished).*

Officer’s entry into the house was to find the parents of an unsupervised four year old, so the community caretaking function applied. United States v. Taylor, 2009 U.S. Dist. LEXIS 95555 (E.D. Va. October 14, 2009):

Applying the community caretaking exception, the Court finds that the officer’s entry into the home was unrelated to the detection, investigation, or attempt to acquire evidence of a crime. As required by the Fourth Circuit in Gwinn, nothing in the record suggests that Officer Ratliff’s reason for the entry was pretextual or that he acted in bad faith. Applying the Sixth Circuit’s Rohrig factors, it is clear that Officer Ratliff entered the home “to vindicate a compelling government interest” — that of caring for lost children and returning them to their parent or guardian in a safe environment — and that this is what motivated the officer, rather than a criminal investigation. “Life-or-death” circumstances did not exist, but they are not required. An officer is not expected to leave his common sense at home. He was looking for the child’s parent or guardian, and the logical place to begin was at her home, especially given her age and the fact that she was found wandering outside not too far from her home. The Sixth Circuit’s analysis balances the governmental interest being served — caring for and returning lost children to their parent or guardian in a safe environment — against the individual’s interest in remaining free from governmental intrusions, and notes that the individual’s conduct that has called the governmental interest into question can be considered — in this case, the defendant’s apparent failure to properly care for and supervise the four-year-old child is what called the governmental interest into question in this case. Further, when Ratliff entered the house he was not engaged in the “enterprise of ferreting out crime.”

Applying the Ninth Circuit’s test to our factual scenario, Officer Ratliff had reasonable grounds to believe that there was an immediate need for his assistance to protect the safety of a four-year-old child found wandering alone next to a busy city street, his entry into the house was not motivated by an intent to arrest or seize evidence but only to locate an adult who was responsible for the child, and the child led him to her home, creating a reasonable basis for him to associate the emergency of a lost child with the house at 2117 Bainbridge Street. If a responsible adult had responded to Ratliff’s initial calls of “hello” and had provided identification demonstrating that he or she was the child’s parent or guardian, that would have been the end of it. Indeed, when Ms. Lee arrived and Ratliff was able to determine that she was the child’s mother, he left the child with her. Ratliff’s entry into the house was limited to calling “hello” and trying to locate an adult responsible for the child. Thus, the Court finds that under the community caretaking exception, Officer Ratliff’s entry into the house was reasonable and there was no violation of the Fourth Amendment.

Consent to search a motel room under a knock-and-talk permitted lifting a jacket which was unusually heavy and where a gun and cocaine were found. United States v. Adams, 2009 U.S. App. LEXIS 22485, 2009 FED App. 0363P (6th Cir. October 14, 2009).*

The totality of circumstances here gave reasonable suspicion for continuing the detention to bring in a drug dog, which alerted. United States v. Woods, 351 Fed. Appx. 259 (10th Cir. 2009).*

Inconsistencies between the officer’s reports and his hearing testimony were not so serious as to make a Franks violation. United States v. Bush, 2009 U.S. Dist. LEXIS 95440 (N.D. N.Y. October 14, 2009).*

The officer had reasonable suspicion, including the faint odor of marijuana when he asked for consent. The consent was not restricted. Defendant’s nervousness and it being in a high crime area also added to the RS. United States v. Muti, 2009 U.S. Dist. LEXIS 95418 (E.D. N.C. August 19, 2009) (USMJ R&R), adopted United States v. Muti, 2009 U.S. Dist. LEXIS 95420 (E.D. N.C. October 8, 2009).*

Two men fled from a police stop. One was tasered and seized, and appellant was hit by only one probe and escaped. He dropped evidence after the tasering. He was not seized when the evidence was dropped. United States v. Jones, 347 Fed. Appx. 129 (5th Cir. 2009) (unpublished).

Search and seizure of a cellphone was proper under a search warrant. United States v. Correa, 347 Fed. Appx. 541 (11th Cir. 2009) (unpublished). Here, the language of the warrant did not say “cellphones,” but it was close enough to easily include it:

The warrant granted agents the authority to seize “written records of names, addresses, telephone numbers and/or photographs, and/or other information regarding buyers, manufacturers and sellers of narcotics, including but not limited to digitally recorded numbers on caller identification units and pagers and any other evidence that may be connected in the commission of the crime.” The agents reasonably concluded that Correa’s cellular telephone, a “known tool of the drug trade,” contained digital evidence about the conspiracy. United States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990).

There was sufficient proof supporting defendant’s warrantless arrest for a felony under Pringle. United States v. Jones, 345 Fed. Appx. 872 (4th Cir. 2009) (unpublished)*; Williams v. State, 2009 Md. App. LEXIS 158 (October 1, 2009).*

There was reasonable suspicion for stopping defendant based on his Mexican license plate being partially obstructed under state law. Also, defendant did not argue below as a mistake of law vs. mistake of fact, so that had to be reviewed for plain error, which it wasn’t. United States v. Montes-Hernandez, 350 Fed. Appx. 862 (5th Cir. 2009) (unpublished).*

The use of a Customs summons to gather records and information which was later used for a search warrant did not violate the Fourth Amendment. Defendant had no privacy interest in his records as a mere cellphone subscriber under Smith v. Maryland. United States v. Cray, 673 F. Supp. 2d 1368 (S.D. Ga. 2009).*

“He contends that the gun and cap were fruits of an illegal search, or perhaps more accurately, fruits of an illegal seizure. In either case, however, the Court concludes that the evidence was lawfully discovered. Under California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), the police did not need reasonable suspicion to pursue the fleeing Watkins. Only when Watkins was ‘seized,’ that is, when Watkins submitted to the officers’ show of authority, was reasonable suspicion required. By that time, Watkins’s actions gave the officers sufficient suspicion to seize him as an initial matter, and post-seizure, Watkins’ words — ‘I got weed’ — gave the officers probable cause to arrest him. Incident to the lawful arrest, the officers’ subsequent search of Watkins’ backpack was proper, and therefore so too was the ultimate discovery of the evidence. Accordingly, the Defendant’s Motion to Suppress (document # 11) is DENIED.” United States v. Watkins, 2009 U.S. Dist. LEXIS 109406 (D. Mass. November 10, 2009).*

In a child porn case, information that was over four years old coupled with purchases only seven months before the SW was sought were not stale. It is the nature of possession of child pornography. Describing the website defendant visited as a “known child pornography site” was not inappropriate or conclusory, even though the website had only a small percentage of child pornography, compared to the whole. United States v. Roller, 2009 U.S. Dist. LEXIS 109633 (N.D. Cal. November 6, 2009).*

The court concludes, on the credibility of the witnesses that a search incident did not occur before the dog alerted on the car. United States v. Sharp, 2009 U.S. Dist. LEXIS 109717 (E.D. Tenn. October 21, 2009).*

CI provided information resulting in a dozen other search warrants, but the officers provided nothing to tell the issuing magistrate whether they led to convictions or about the quantity and quality of the cases. What corroboration there was here was of innocent details, and that was not enough. Byrd v. Commonwealth, 55 Va. App. 742, 689 S.E.2d 769 (2010):

This case is similar to Byrd in that the CI does not have such an unusual history of reliability that it compensates for his failure to set forth the basis of his knowledge for the information he relayed to Canada. The record in this case shows that the CI provided information to the police that led to “over twelve search warrants, seizures of large quantities of money, drugs, firearms, people with arrest warrants,” yet it does not inform as to how many of those search warrants led to actual seizure of evidence or whether the information led to convictions. In addition, while the record shows that the information provided by the CI generally related to narcotics, it does not demonstrate the quantity or quality of the information provided on those previous occasions.

Under the totality of the circumstances, we hold that the CI’s tip in this case did not provide the officers with probable cause. The CI did not provide his basis of knowledge, nor did he provide such detailed information that it could be inferred he had personal knowledge of the criminal activity. Finally, his history of reliability was not so unusual on its own to support a finding of probable cause. For these reasons, we hold that under the totality of the circumstances, the police officers lacked probable cause for the warrantless search of the vehicle and appellant.

The Second Circuit en banc refuses to recognize a Bivens claim in extraordinary rendition cases where Congress has not spoken. Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc):

Our ruling does not preclude judicial review and oversight in this context. But if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.

Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather, we conclude that, when a case presents the intractable “special factors” apparent here, see supra at 36-37, it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress–and not for us as judges–to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition, see David Johnston, U.S. Says Rendition to Continue, but with More Oversight, N.Y. Times, Aug. 24, 2009, and not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.

Defendant was present, but he was not asked for consent. This did not violate Randolph. Invoking Miranda is not a refusal of consent. Also, he never objected to her consent. United States v. Stanley, 351 Fed. Appx. 69, 2009 FED App. 0716N (6th Cir. 2009), cert. den. 2010 U.S. LEXIS 2960 (U.S., Apr. 5, 2010) (unpublished)*:

Stanley did not refuse consent to search the apartment. Stanley admits he was present in the apartment when Foster gave her consent to search. Stanley did not object after Foster gave her consent. Again, Stanley cites no authority, and we are unaware of any, that supports Stanley’s assertion that the invocation of Miranda rights constitutes an express refusal of consent to search. The district court did not err in ruling that Foster’s consent to the search gave the officers legal authority to search the apartment. See Lawrence, 308 F.3d at 626-627.

Failure to include an argument in a motion to suppress is a waiver of that specific argument. United States v. Hamilton, 587 F.3d 1199 (10th Cir. 2009).*

Defendant lacked standing to challenge the search of the apartment he was in because he had no connection to it. However, he could still challenge the search of his computer that was found there, which the government conceded. United States v. Scott, 673 F. Supp. 2d 331 (M.D. Pa. 2009):

Although Scott lacks standing to challenge the seizure of property from the Rawleigh Street apartment, he is not foreclosed from contesting the subsequent search of his Dell 1501 laptop computer by the Cumberland County Forensics Unit. Scott clearly possessed a reasonable expectation of privacy in the contents of what the government acknowledges is his personal property. Furthermore, the government concedes that it did not obtain a warrant to search the contents of the computer, and offers no justification for not doing so. Perhaps as a consequence of this oversight, the government does not contest Scott’s motion to suppress the fruits of the laptop computer search. (See Doc. 194 at 14.) Accordingly, the contents of the computer will be suppressed.

A power line easement was not a part of the curtilage under Dunn. [Rather than simply find it was not, the parties tried this issue and the court made detailed findings.] United States v. Rey, 663 F. Supp. 2d 1086 (D. N.M. 2009).*

The presence of a shotgun carried into the house in a shots fired call justified the entry under the emergency doctrine. The search for the gun was also justified as a protective sweep. United States v. Parrott, 2009 U.S. Dist. LEXIS 109002 (E.D. Pa. November 20, 2009).*

Defendant tossed his gun while fleeing, and this was like Hodari D. and there was no seizure because of his flight. United States v. Grant, 2009 U.S. Dist. LEXIS 108874 (E.D. Pa. November 19, 2009).*

The USMJ finds that the officer in this case was not credible when he testified that he smelled the strong odor of burnt marijuana when he stopped the defendant’s car. Based on all the factors, analyzed by the court, the content of police reports, the videotape of the stop, and the contemporaneous radio reports, the testimony is just not believable. United States v. Dolson, 673 F. Supp. 2d 842 (D. Minn. 2009).* In the overall scheme of things, this case is not citable for any proposition of law, but it is instructive to defense counsel:

Each of the aforementioned inconsistencies and mischaracterizations, viewed in isolation, might not undermine Trooper Engum’s credibility. Viewed as a whole, however, they demonstrate that Trooper Engum has — whether deliberately or unintentionally — shaded the facts surrounding the traffic stop in a way that would make the search and seizure less constitutionally suspect than it in fact was. Cf. United States v. Portmann, 207 F.3d 1032, 1033 (8th Cir. 2000) (per curiam). Therefore, the Court makes the following additional factual findings regarding Trooper Engum’s testimony.

The Court concludes that during Trooper Engum’s first contact with the Suburban, he did not smell a strong odor of burnt marijuana and he intended only to ticket Dolson for failing to place the children in child restraints. Trooper Engum offered no credible explanation for the inconsistency between the purported odor of marijuana and his conduct and statements to the Task Force when he first returned to the squad car. See United States v. Hatcher, 275 F.3d 689, 692 (8th Cir. 2001) (per curiam). The Court concludes that Trooper Engum’s references to the odor of marijuana were a pretext for prolonging the stop and for questioning Dolson about drugs.

The Court concludes that the vehicle registration issue did not cause or justify any delay, because Trooper Engum was aware of and investigated the issue during his first contact with the vehicle. Trooper Engum’s testimony to the contrary appears to be a post-hoc attempt to justify his delay in calling for a canine unit. The Court concludes that the actual reason Trooper Engum delayed calling for a canine unit was because Trooper Engum did not smell a strong odor of burnt marijuana during his initial contact with the vehicle, and therefore he had no reason to call for a canine unit.

The Court concludes that Trooper Engum was justifiably concerned that Dolson might be armed after he removed Dolson from the vehicle. Nonetheless, after careful review of the videorecording, the Court concludes that Dolson never refused Trooper Engum’s directions to place his hands on the hood of the squad car and never conducted himself in a way that manifested any physical threat to Trooper Engum. Trooper Engum’s testimony to the contrary constitutes an effort to justify his decision to unholster his sidearm.

. . .

The Court concludes that Trooper Engum exaggerated Dolson’s alleged willingness to sit in the back of the squad car. This exaggeration constitutes an effort to characterize the circumstances of Trooper Engum’s questioning of Dolson after the pat-down as non-custodial.

The Court concludes that Trooper Engum repeatedly mischaracterized when he questioned Dolson about the last time someone smoked marijuana in the Suburban. In so doing, Trooper Engum attempted to render that question non-custodial. Trooper Engum also repeatedly mischaracterized Dolson’s response to the question in a way that would corroborate Trooper Engum’s testimony that he smelled a strong odor of burnt marijuana coming from the vehicle.

The Court concludes that Trooper Engum’s testimony about the canine sniff of the vehicle exterior is inconsistent with the videorecording and with the canine handler’s report. Trooper Engum’s testimony represents an effort to present evidence corroborating his claim that he smelled a strong odor of burnt marijuana during his first contact with the vehicle. Trooper Engum’s testimony about the importance of the canine allegedly indicating on the exterior of the vehicle also undermines the credibility of his proffered justification for searching the interior of the vehicle.

The Court concludes that Trooper Engum’s statement to Dolson informing him that he was not under arrest amounts to a post-hoc attempt to render the interrogation non-custodial.

Good faith exception applied to a pre-Gant search incident. Alternatively, other exceptions would apply. United States v. McGhee, 672 F. Supp. 2d 804 (S.D. Ohio 2009):

The circuits which have addressed the issue of whether new limitations on searches should be applied retroactively are divided. Compare United States v. Gonzalez, 578 F.3d 1130, 1133 (9th Cir. 2009) (Gant applied retroactively) with United States v. Deitz, 577 F.3d 672, 687-88 (6th Cir. 2009) (rejecting defendant’s Fourth Amendment argument concerning a warrantless search of his briefcase, noting that although the search violated Gant, the officers’ conduct was lawful in 1998 when the stop occurred); United States v. McCane, 573 F.3d 1037, 1042-45 (10th Cir. 2009) (good faith exception applied to law enforcement actions rendered invalid under Gant which were previously lawful under circuit precedent); United States v. Jackson, 825 F.2d 853, 865-66 (5th Cir. 1987) (good faith exception applied in light of officers’ reasonable reliance on prior circuit law regarding warrantless searches at checkpoint). This court concludes that even if the search is characterized as a search pursuant to defendant’s arrest, the exclusionary rule should not be applied in this case, since, at the time of the events in question, the vehicle could have been legally searched pursuant to defendant’s arrest under the existing precedent of the Sixth Circuit, and there is no evidence that the officers acted in bad faith in performing the search.

Even if the exclusionary rule would apply to a search of the vehicle incident to defendant’s arrest, the government argues that other exceptions to the Fourth Amendment warrant requirement apply to justify the warrantless searches of the defendant and his vehicle.

Defense counsel was not ineffective for not challenging the consent to search by a third person since it was clear they could consent, even though the police were responsible for defendant’s absence from the premises. United States v. Burnley, 2009 U.S. Dist. LEXIS 118285 (W.D. Wis. December 18, 2009)*:

The legitimacy of relying on Elliot’s authority to allow the search is not diminished by the fact that the police were responsible for defendant’s absence. United States v. Parker, 469 F.3d 1074, 1078 (7th Cir. 2006) (“Consent to warrantless search by someone with common authority over premises is valid as against an absent, non-consenting person with whom the authority is shared” even when the police are responsible for absence of non-consenting person) (citing Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242).

Defense counsel was not ineffective for not arguing that a separate consent was required for a separate part of a car search since that is not the law. United States v. Altamirano-Quintero, 2009 U.S. Dist. LEXIS 118375 (D. Colo. December 18, 2009).*

The government showed probable cause for the search warrant for defendant’s computer at a business based on tips from two CIs that included a reference to defendant traveling to the Philippines where he allegedly obtained child pornography and the State Department confirmed his travel there and the CIs having seen child porn on defendant’s computer. It was not required that the specific sex acts be described. United States v. Pavulak, 672 F. Supp. 2d 622 (D. Del. 2009):

With respect to defendant’s contention that the descriptions of the images were insufficient to establish probable cause that defendant was violating state child pornography laws because there are no allegations of nudity, sexual contact, or lascivious exhibition of the genitals or pubic area, the court finds that the totality of the circumstances still provided a substantial basis for the judge’s finding of probable cause. United States v. Dennington, No. 01:07CR43, 2009 WL 2591763, at *21 – 22 (W.D. Pa. Aug. 21, 2009) (court found agent’s affidavit when “read in a holistic, practical and non-technical manner” provided a substantial basis for the magistrate’s determination that there was probable cause to believe there was pornographic material on defendant’s computer).

Government overlooked defendant passenger’s argument that his stop and the subsequent plain view violated his rights, too, under Brendlin. “Few things are clearer about Fourth Amendment doctrine than this: the passenger of a motor vehicle has standing to challenge the constitutionality of the stop of that vehicle by the police. See United States v. Ross, 280 F. App’x 947, 948 (11th Cir. 2008) (citing Brendlin). Defendant clearly mounts such a challenge in this case. The government’s no-standing argument is utterly bogus.” On the merits, however, “The Court is persuaded that, under the particular circumstances of this case, Officer Fletcher was entitled to stop the subject vehicle in order to investigate his suspicions that its occupants had just committed a crime, or perhaps had witnessed criminal activity.” Therefore, the plain view was valid, and the motion to suppress is denied. United States v. Bradley, 2009 U.S. Dist. LEXIS 110732 (S.D. Ga. November 5, 2009).*

Officers responded to a suspicious persons call and saw the defendant and another. They asked for ID, and the defendant dropped a rock of crack. He was free to ignore the request for ID and leave if he wanted. State v. Butler, 28 So. 3d 317 (La. App. 5th Cir. 2009):

There is no indication in the record that defendant was not free to disregard Deputy Adams when he spoke to him. In fact, Adams’s uncontested testimony shows that defendant was not in custody or detained before he dropped or threw down the first white rock. According to Adams, defendant could have gotten into the car and left the scene after he was asked for his identification. The verbal contact, by itself, involved the first tier of Fisher, and did not implicate Fourth Amendment concerns of detention or coercion.

Comment: This is a potentially dangerous holding. What lay person asked for ID knows that he is free to disregard and leave? What lawyer knows that? Apparently only the prosecutor in Jefferson Parish LA. And, if a person drives off and ignores the officer, he runs a risk of getting shot, for no apparent reason other than leaving.

While executing a drug search warrant, the police removed a cabinet from the wall of defendant’s place and they found a gun hidden there. That qualified for plain view. The place searched was a place where drugs could have been hidden. United States v. Ryerson, 2010 U.S. Dist. LEXIS 21237 (E.D. Tenn. February 12, 2010).*

None of the defendants driving or riding in the CI’s car had standing to challenge its search. United States v. Pete, 2010 U.S. Dist. LEXIS 21907 (W.D. Pa. March 10, 2010). [Perfect: Get the target of the search to drive the CI’s car while carrying the dope, and then he lacks all standing. I’ve actually seen this before.]

Arrest of the defendant and removal of him from the scene was not shown to be an effort to avoid the defendant’s ability to veto consent under Randolph. United States v. Ramirez, 2010 U.S. Dist. LEXIS 21065 (S.D. Fla. February 4, 2010) (USMJ R&R), adopted 2010 U.S. Dist. LEXIS 21067 (S.D. Fla. March 9, 2010).*

Not a Fourth Amendment case, but a reasonable expectation of privacy case is State v. Perez, 779 N.W.2d 105 (Minn. App. 2010),* where defendant was convicted of surreptitiously videotaping his wife in the nude when they married but getting separated. Even a married person has a reasonable expectation of privacy as to her spouse.

Defendant’s removal from the car is “utterly immaterial” to the question of the cause for the stop. The eight minutes for the dog to arrive was not unreasonable. Jackson v. State, 190 Md. App. 497, 988 A.2d 1154 (2010). This is another entertaining opinion by Retired Judge Moylan, inter alia, describing the Arvizu/Sokolow totality of the circumstances approach as “If It Looks Like a Duck and Walks Like a Duck and Quacks Like a Duck…”:

. . . As long as the automobile itself was being constitutionally detained as of the moment the dog made its positive alert, whatever may have been happening to the appellant in the meantime, good or bad, is utterly immaterial.

Whether the appellant was being royally wined and dined, on the one hand, or was being greeted as if exiting the Biograph Theatre in Chicago, on the other, is an extraneous consideration that had no impact on the legitimacy of the dog sniff. For other purposes, of course, it may have made a great deal of difference. We are not suggesting otherwise. We are simply stressing the point, perhaps starkly so, that the treatment of the appellant as a person, whether exemplary or deplorable, was not a factor in the suppression syllogism. The appellant was being lawfully detained. The degree of restraint, minimal or maximal, did not influence, therefore, the fact that the car was properly still in place when the dog arrived. All that matters is that the appellant was not free to drive the car away. Any restraint on him beyond that point, even if excessive, did not affect the immobility of the car.

Every Fourth Amendment violation, assuming one to have occurred, does not, in and of itself, require the suppression of evidence. To justify the exclusion of evidence, it is further required that the discovery of the evidence shall have been the proximate result of the Fourth Amendment violation.

Conclusion

Once we have filtered out the extraneous static, we are left with a legitimate stop followed by a legitimate eight-minute detention followed by a legitimate dog sniff. That’s all there is to it.

Defendant’s occupying a condemned house owned by his father, that he refused to consent to a search of because it was his father’s, lacked a reasonable expectation of privacy in the house. As a general matter, there is no expectation of privacy in a condemned building. (Moreover, at trial, it came out he lived elsewhere.) State v. Snow, 299 S.W.3d 710 (Mo. App. 2009):

There was also substantial evidence at the hearing to establish that, while Snow had previously rented the house, he was no longer doing so because the City had condemned it. At the hearing, the State’s evidence showed that, after Ronnie had consented to have the house condemned, the City sent Snow an order to vacate the premises, which informed him that the house was unfit to live in and that he was no longer legally allowed to live there. The City’s posted notice at the house stated that it was unlawful for anyone to occupy the house. From this evidence, the trial court had a reasonable basis for concluding that Ronnie was not allowed to rent the house to anybody, including Snow. This evidence supports the trial court’s conclusion that Snow had no objective expectation of privacy in the house. United States v. Washington, 573 F.3d 279, 283 (6th Cir. 2009) (stating that it is “certainly true a person cannot acquire an expectation of privacy in a structure that has been legally condemned [because] any presence is forbidden”); United States v. Jones, 556 F.Supp.2d 985, 990 (E.D. Mo. 2008) (stating that “[t]he lack of an expectation of privacy is even more conclusive if one accepts Defendant’s suggestion that the Residence had been condemned and no one was living there”).

Defendant’s car was stopped for driving the wrong way on a one-way street, and the windows were overtinted. When asked about contraband, the defendant became nervous. The officer had reasonable suspicion for a patdown at that point. The drugs on defendant was then abandoned by dropping them. State v. Vasquez-Arenivar, 18 Neb. App. 265, 779 N.W.2d 117 (2010).*

IRS summons was proper: “the IRS has met its burden by presenting evidence through its Verified Petition that the Summons was issued for a legitimate purpose; that the information sought may be relevant to that purpose; that the summoned information is not already in possession of the IRS; and that the proper administrative steps have been followed.” United States v. Bishop, 2009 U.S. Dist. LEXIS 125018 (N.D. Cal. December 10, 2009).*

The state failed to show that the stop here was based on reasonable suspicion from an anonymous 911 call of a man with a gun. The state was obviously on notice that a 911 call was the subject of the motion to suppress. After all, defendant’s stop was based on a 911 call, and defendant referred to it in his affidavit in support of the motion to suppress. Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 917 N.E.2d 231 (2009)*:

We do not minimize the potential seriousness of a report such as was present here. Nor do we dispute that the investigating officer acted reasonably in relation to the information supplied to him via the police radio broadcast. We recognize that “[w]hen a tip … concerns the possession of a firearm, it deserves the immediate attention of law enforcement officials.” Commonwealth v. Stoute, 422 Mass. at 790. Having received a report of an armed man, it would have been poor police work had the officer here left the scene without making any inquiries. However, the seriousness of the report received by the officer on the scene does not relieve the Commonwealth of the burden of establishing the veracity of that report and the constitutional underpinning for the officer’s actions at the suppression hearing. This the Commonwealth failed to do.

In sum, the judge erred in determining that this stop and frisk was based on reasonable suspicion. The order denying the defendant’s motion to suppress is vacated and an order shall enter allowing that motion. The judgments of conviction are reversed.

Officers were justified in pulling a weapon on defendant when he was stopped for overtinted windows because of his furtive movement of his hand to his back. Getting out of the car was “unusual” [and argued by the prosecutor at trial as evidence of guilt]. Cocaine was seen in plain view in the car. Hill v. State, 303 S.W.3d 863 (Tex. App.—Ft. Worth 2009).* [Note: When I was in college, I was ordered out of the car when I was stopped. So what’s the big deal? SOP has changed?]

The officer was not per se precluded from asking defendant for consent during a traffic stop while it was still going on and had not been extended. State v. Hogans, 301 Ga. App. 261, 687 S.E.2d 230 (2009).*

TSA exceeded its administrative search authority by searching for child pornography in defendant’s luggage. Whatever authority TSA had to search photographs for “sheet explosives,” this search was not for that purposes by the way it was conducted. United States v. McCarty, 672 F. Supp. 2d 1085 (D. Haw. 2009):

Despite the testimony indicating that the TSA employees searched the photographs solely to determine if any children were in harm’s way, the government argues that the search was nonetheless proper because Andrade was required to inspect the photographs for sheet explosives. Pl.’s Nov. 3 Suppl. Opp’n 2-6. The court readily accepts that a packet of photographs may cause a dense item alarm and TSA protocol requires the TSA employee to ensure that the photographs do not include any sheet explosives. The testimony, however, does not establish that Andrade and Moniz examined the photographs for sheet explosives — rather, after they noticed the photographs that were initially visible, they inspected the content of additional photographs for the purpose of determining their criminal nature. Further, that this inspection was not an administrative search for explosives is confirmed by the fact that Moniz and Andrade did not actually thumb through all of the photographs — if they were indeed searching the photographs for sheet explosives, protocol requires that they actually leaf through all of them. See id. at 148, 151. Rather, as described above, at some point during the search, they began to review the photographs not as part of an administrative search but rather to determine whether children were in harm’s way.

The government also argues that the entire contents of the envelope were in “plain view” such that the TSA’s review of them did not invade Defendant’s privacy. Pl.’s Nov. 3 Suppl. Opp’n 8-11. The “plain view” doctrine is limited “to situations where the officer had a legal right to be at the location from which the object was plainly viewed.” Bulacan, 156 F.3d at 968 (citing Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990)). “[T]o justify the seizure, the incriminating nature of the object must be immediately apparent and the officer must ‘have a lawful right of access to the object itself.'” Id. (quoting Horton, 496 U.S. at 137). In this case, the government has failed to establish that the incriminating nature of the envelope and its contents was immediately apparent. Andrade could not identify what images she initially saw, and testified that she (1) did not believe anything was wrong when she first saw them; Doc. No. 57, at 63; (2) reviewed additional photographs because she “felt that the children were in a harmful way” and “needed to see more before I called my lead;” id. at 61-62; and (3) came to the conclusion that something was wrong based on reviewing everything combined together. Id. at 76-77. Accordingly, the plain view doctrine does not apply.

Finally, the government argues that the court should be guided by “practical considerations” in assessing TSA’s and HCPD’s actions. Pl.’s Nov. 3 Suppl. Opp’n 11-12. Even if relevant in this case, “practical considerations” do not alter the facts — Andrade and Moniz’s review of the contents of the envelope was not limited to a proper administrative purpose, resulting in a violation of Defendant’s Fourth Amendment rights. This is not a case where TSA employees found potentially incriminating photographs and simply continued on with their administrative search to clear the bag for airplane safety. Rather, the court concludes that Andrade and Moniz decided to conduct their own investigation in violation of Defendant’s Fourth Amendment rights. In sum, based on the evidence and testimony provided, the court finds that the government did not carry its burden that the search of the Travel Pro bag complied with the Fourth Amendment.