Through creative police work, the police came to defendant’s house looking for a person who used another person’s wireless Internet connection. He did not tell the defendant that he was looking for child pornography. Defendant admitted the officer and let him on the computer to look at the screen and admitted using a neighbor’s wireless. The officer then searched for .avi files and found apparent child pornography just from the file names, and they were not opened on the computer. The use of deception did not render the consent by action invalid. However, the officer exceeded the scope of the consent to check about wireless usage when he looked at the .avi files, and that was suppressed. State v. Bailey, 2010 ME 15, 989 A.2d 716 (2010):

[*P23] We have recognized the “practical necessity for the use of deception in criminal investigations,” State v. Carey, 417 A.2d 979, 981 (Me. 1980), but the effect of deception as to purpose is an issue of first impression. 8 Case law from federal and other state jurisdictions on the effect of deception is necessarily fact driven, but in cases where courts have found that deception alone vitiates consent, there has been an express and affirmative misrepresentation by the authorities as to the purpose of the search or investigation. 9 Most frequently, police deception as to purpose is viewed among all of the circumstances surrounding the individual’s consent in a voluntariness analysis. See United States v. Carter, 884 F.2d 368, 375 (8th Cir. 1989) (noting that deception is one relevant inquiry within the totality of the circumstances); United States v. Romero, No. 05-10080-01-WEB, 2005 U.S. Dist. LEXIS 26000, at *11-*16 (D. Kan. Oct. 19, 2005) (analyzing the voluntariness of a consensual search by considering deception along with other factors including custody, language barrier, force, and coercion); Commonwealth v. Gaynor, 443 Mass. 245, 820 N.E.2d 233, 242 (Mass. 2005) (stating that deception as to purpose is one factor to consider in the totality of the circumstances).

. . .

[*P28] The suppression court concluded that “[a]t the time [Bailey] consented, [he] knew that it was highly probable that the detective wanted to look at his computer to see if he had accessed his neighbor’s wireless router” by considering the dialogue between Bailey and Beaulieu, Bailey’s subjective knowledge “that he had been accessing his neighbor’s wireless router without permission,” and the fact that Bailey did not have his own wireless router. The consideration of subjective factors in determining the scope of Bailey’s consent was error under the objective reasonableness standard. See Jimeno, 500 U.S. at 251; Sanders, 424 F.3d at 775. Here, pursuant to the objective reasonableness standard, Beaulieu’s search exceeded the scope of Bailey’s consent. A reasonable person observing the exchange would have concluded that Bailey was consenting to a search for the purpose indicated by Beaulieu: to see if someone had been accessing his computer without his permission. See Jimeno, 500 U.S. at 251 (“The scope of a search is generally defined by its express object.”). The officer clearly exceeded that scope when he ran a general search for all of the video files on Bailey’s computer. See Koucoules, 343 A.2d at 868 (“Where permission has been given to search for a particular object, the ensuing search remains valid as long as its scope is consistent with an effort to locate that object.”). Beaulieu’s search was not consistent with his stated purpose, and for that reason the detective’s search for AVI files violated Bailey’s Fourth Amendment rights.

911 call alone did not justify the officer in detaining the caller. State v. Fair, 233 Ore. App. 298 (2010):

In sum, the test for determining whether a contact exceeded mere conversation is whether the officer engaged “in conduct significantly beyond that accepted in ordinary social intercourse.” [Holmes] The “mere encounters” in Holmes and the cases underlying it occurred in streets or other public places. There is a significant difference between the typical circumstances of a police officer approaching a person on a public street–for example, by flagging down a motorist in order to conduct a brief exchange of information, as was the case in Holmes, Gerrish, and McFarland–and a police officer going to the door of a person’s home, ordering the person out of the home, and instructing the person to remain with the police officer, which is what occurred in this case.

Exigent circumstances justified dispensing with a search warrant because the defendant was under surveillance and moving drugs. The time to get a warrant would have defeated the search entirely. State v. Sanders, 233 Ore. App. 373, 226 P.3d 82 (2010).*

Defendant’s patdown revealing nothing made reasonable suspicion evaporate because the officer lacked any reason to believe that what she might have been handed made it to her backpack while he was watching. State v. Lovell, 233 Ore. App. 381, 226 P.3d 76 (2010):

Nothing in the record indicates that defendant put anything in her backpack after the contact with Payne. Heinen testified that she was out of his view for only about five seconds, and nothing in his testimony suggests that she might have placed anything in the backpack during that time. Thus, once the patdown of defendant’s person revealed nothing, Heinen no longer had reason to believe that Payne had handed her illegal drugs. It follows that he lacked reasonable suspicion to detain defendant when she consented to the search of the backpack.

A concealed carry permit still requires an articulable basis that the handgun would potentially be used to search for it. Here, the motorist was fully cooperative and made no furtive movements. The officer testified the search for the gun was merely a matter of personal policy when the driver has a concealed carry permit. Washington v. State, 922 N.E.2d 109 (Ind. App. 2010):

As a matter of his own practice, the officer inquired as to whether Washington had any weapons or guns in the car, and Washington replied that he had a handgun, which was located underneath the driver’s seat. Washington also informed Officer Reynolds that he had a valid permit for the handgun. Although Washington admitted that a handgun was present inside of the car, he was at all times totally cooperative with Officer Reynolds. The testimony at the suppression hearing indicated that, during the traffic stop, Washington made no furtive movements, answered the officer’s questions, and showed no disrespect to the officer. At the time he searched for the handgun, Officer Reynolds had no information that any crime or violation of law had been or was about to be committed, except for the inoperable headlight infraction. Further, at the suppression hearing, Officer Reynolds did not testify that he had any specific concern for officer safety during his traffic stop of Washington. He merely testified that, as a matter of general practice, he inquired as to whether Washington had any weapons, and when Washington stated he had a handgun, Officer Reynolds searched under the driver’s seat to retrieve it. As in Malone, we conclude that in the absence of an articulable basis that either there was a legitimate concern for officer safety or a belief that a crime had been or was being committed, the search of Washington’s car for a handgun was not justified. Here, because neither of these conditions was satisfied, the search was illegal, and the trial court should have suppressed the evidence.

Search did not exceed the duration of defendant’s consent because (1) defendant repeatedly consented to the searches; (2) defendant’s consent contained no limitation on the duration of the search; (3) at no time did defendant seek to limit the duration of the search, nor did the officers create the understanding that the search would have been brief; and (4) there was no indication that the officers failed to act with due diligence in conducting the search. A dog also alerted. United States v. Carbajal-Iriarte, 586 F.3d 795 (10th Cir. 2009).*

Officers had an arrest warrant, and that permitted them to enter defendant’s premises to arrest under Payton. Short v. United States, 2009 U.S. Dist. LEXIS 102269 (E.D. Mo. November 3, 2009).*

Defendant’s stop for not having a driver’s license was justified because the officer knew defendant was without a license. The smell of marijuana coming from the car justified more. United States v. Duque, 2009 U.S. Dist. LEXIS 102199 (W.D. Okla. November 2, 2009).*

Defendant was reasonably detained as a suspected illegal alien. United States v. Adoni-Pena, 2009 U.S. Dist. LEXIS 102125 (D. Vt. October 23, 2009).*

Mistake of law about obstructed taillights required suppression of defendant’s stop. United States v. McHugh, 349 Fed. Appx. 824 (4th Cir. 2009) (unpublished).*

The frisk of a juvenile for a weapon was without reasonable suspicion, so the search is suppressed. State v. Anthony L., 2009 N.M. App. LEXIS 185 (October 7, 2009).*

Going to defendant’s porch to find him after an accident and abandoned car was not a violation of the Fourth Amendment. The officer knocked on the door, defendant answered, and the officer told him to step outside, which he did. This was not a seizure. Johnson v. State, 300 Ga. App. 605, 685 S.E.2d 339 (2009).*

Defendant was not stopped by officer’s questions when he had stopped at gas pumps in a truck stop and was walking into the building. RS had developed. Baker v. State, 300 Ga. App. 307, 684 S.E.2d 427 (2009).*

Defendant’s specific appellate issue on the reliability of the informant was not litigated below, so it could not be considered on appeal. State v. Pilgrim, 2009 Ohio 5357, 184 Ohio App. 3d 675 (10th Dist. 2009).*

Anonymous tip and defendant being in a high crime area was not reasonable suspicion. In re D.W., 2009 Ohio 5406, 184 Ohio App. 3d 627, 921 N.E.2d 1114 (2d Dist. 2009).*

Defendant’s furtive movements were RS, and led to the officer who stopped him calling for backup which lawfully extended the stop. State v. Glynn, 2009 Ohio 5401, 2009 Ohio App. LEXIS 4559 (2d Dist. October 9, 2009).*

The consent form here said that defendant was consenting to a search of his computer with a forensic program for child pornography images. After that inexplicably produced nothing, the officers asked for his password to open the computer, which he leaned over and typed. This was consent to enter the computer. The software then produced images. The consent was valid. United States v. McAteer, 2010 U.S. Dist. LEXIS 13151 (D. N.J. February 16, 2010).*

Arrest warrants for African elephant ivory smuggling were executed in New Jersey shortly after 6 a.m., and a protective sweep occurred just after the consent forms were being signed. The consent was found valid. United States v. Sylla, 2010 U.S. Dist. LEXIS 13056 (E.D. N.Y. February 16, 2010)

The officer had reasonable suspicion to detain the defendants based on the car matching a car seen in a convenience store surveillance video leaving the scene of a shooting on the parking lot the night before. United States v. Perez, 2010 U.S. Dist. LEXIS 12890 (D. Kan. February 12, 2010).*

The subjective motivations for a stop are irrelevant, if it otherwise is valid. Appellant’s contention is “better directed to the Supreme Court” which has repeatedly upheld this doctrine. United States v. Taylor, 596 F.3d 373 (7th Cir. 2010).*

The search warrant was supported by ample probable cause. United States v. Mendez-Argueta, 2010 U.S. Dist. LEXIS 12953 (E.D. Va. February 12, 2010).*

Twenty seconds of tasering defendant in the hospital to get him to spit out drugs in his mouth was an unreasonable and excessive seizure. It was so bad that the court cites Rochin, the stomach pumping case. Hereford v. State, 302 S.W.3d 903 (Tex. App.—Amarillo 2009):

One thousand-one, one thousand-two, one thousand-three, one thousand-four, one thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-nine, one thousand-ten, one thousand-eleven, one thousand-twelve, one thousand-thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-twenty. That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr., according to the instrument’s log. At the time, appellant was handcuffed and being held down in a hospital emergency room. Arp wanted appellant to spit-out what he had in his mouth. When appellant did not comply after Arp’s first foray, the tasings resumed. No one viewed appellant as a threat to others during the episode. Nor had he attacked anyone. Arp simply wanted appellant to comply. When asked if “repeated taser use [was] acceptable” and whether “20 seconds worth of tasering” was “okay,” he policeman answered “yes” to both.

Arp was not the first to tase appellant, though. Officer Williams had already done so twice at a locale miles away from the hospital. He too wanted appellant to remove the items, which Williams thought to be drugs, from his mouth, and met with no success. So, Williams decided to take appellant to the hospital in effort to gain medical assistance.

In continuing where Williams had failed, Arp said he administered all but one of the electrical shocks to Hereford’s inner thigh region; others saw them being administered to appellant’s “groin area.”

. . .

One need only harken back to first year constitutional and criminal procedure class to recall our United States Supreme Court stating: “[i]t has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 210, 96 L.Ed.183 (1952). In Rochin, the police transported a suspect, who they thought swallowed drugs, to the hospital to undergo the non-consensual pumping of his stomach. This was done after their attempts to physically force Rochin to open his mouth met with no success. Id. 342 U.S. at 166, 72 S.Ct. at 206. According to the Court, recognizing the use of “brutal conduct” as a legitimate means of securing evidence is tantamount to “afford[ing] brutality the cloak of law.” Id. 342 U.S. at 173, 72 S.Ct. at 210. And, most importantly, it opted against that by viewing the police conduct as a denial of due process. See Brown v. State of Mississippi, 297 U.S. 278, 287, 56 S.Ct. 461, 465-66, 80 L.Ed. 682 (1936) (holding that whipping or beating of a suspect to gain his confession violated due process).

“Would you mind if I look?” is different than “may I search?” Defendant’s consent was acquiescence to a claim of authority. Defendant also refused consent. Meekins v. State, 303 S.W.3d 25 (Tex. App.—Amarillo 2009):

The officer had not asked “may I search” but rather “would you mind if I look?” Answering “yes” to the latter meant that appellant did mind. Answering “I guess” also had and has like connotation; that is, saying “I guess” in response to being asked if one minds whether something happens can well indicate that he does. To this we add appellant’s prior evasiveness in response to the officer’s persistence in asking for consent. When combined, the circumstances paint not a picture of clarity or unequivocation but rather one of vacillation and hesitance. More importantly, to somehow conclude from the entirety of the scenario that saying “yes” or “I guess” meant that appellant finally acquiesced to the search invites speculation into various matters. Those matters consist of whether appellant failed to listen to the specific question asked by Williams, whether he ignored the last question and opted to answer those previously propounded, or whether he reinterpreted the question from one asking “would you mind” to one asking “may I search.” Yet, authority denies both this court and the initial factfinder from engaging in speculation given the absence of supporting evidence.

Applying Tennessee’s Jacumin test (Aguilar-Spinnelli), the informant’s statement was sufficient to show probable cause. He was not a pure citizen informer, but the basis of knowledge was his interaction with the defendant. State v. Blair, 2009 Tenn. Crim. App. LEXIS 1032 (December 17, 2009).*

Adult child living there had sufficient common authority over defendant’s home to consent to a search. State v. Williams, 2009 Tenn. Crim. App. LEXIS 1034 (December 17, 2009).*

The facts in the arrest warrant affidavit showed probable cause for arrest. United States v. Palumbo, 2009 U.S. Dist. LEXIS 117839 (D. Nev. November 23, 2009).*

Defendant’s consent was invalid. He was asked for consent six times while he was sitting in his car, but he was equivocal or refused. The questions to him were loaded: “Would you mind if I search?” is different from “May I search?” in analyzing voluntariness. Meekins v. State, 303 S.W.3d 25 (Tex. App.—Amarillo 2009):

As previously described, the video of the stop revealed that Williams asked for consent about six times. Appellant’s first five replies to those solicitations were evasive and so much so that they resulted in the officer informing him that the inquiry was a “yes or no question.” The officer’s desire to hear a “yes” or “no” answer continued until appellant said “yes” or “I guess” to the last solicitation. Because that utterance allegedly evinced to Williams “clear and unequivocal” consent, he ordered appellant to exit the vehicle. The problem comes, however, in the nature of the question to which appellant said “yes” or “I guess.”

The officer had not asked “may I search” but rather “would you mind if I look?” Answering “yes” to the latter meant that appellant did mind. Answering “I guess” also had and has like connotation; that is, saying “I guess” in response to being asked if one minds whether something happens can well indicate that he does. To this we add appellant’s prior evasiveness in response to the officer’s persistence in asking for consent. When combined, the circumstances paint not a picture of clarity or unequivocation but rather one of vacillation and hesitance. More importantly, to somehow conclude from the entirety of the scenario that saying “yes” or “I guess” meant that appellant finally acquiesced to the search invites speculation into various matters. Those matters consist of whether appellant failed to listen to the specific question asked by Williams, whether he ignored the last question and opted to answer those previously propounded, or whether he reinterpreted the question from one asking “would you mind” to one asking “may I search.”

“We shall hold that the totality of the circumstances do not provide a concrete reason to associate the odor of ether with criminal activity or contraband, and, accordingly, the officer did not have probable cause to arrest the petitioner.” Bailey v. State, 412 Md. 349, 987 A.2d 72 (2010).

Search would be bad under Gant, but suppression not required because of inevitable discovery. United States v. Stotler, 591 F.3d 935 (7th Cir. 2010):

To all this, we add a final point. The inevitable discovery doctrine holds that even an illegally seized item need not be suppressed if the government can prove by a preponderance of the evidence that the officers would have discovered it by lawful means. Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). See also United States v. Marrocco, 578 F.3d 627 (7th Cir. 2009). If the police had not searched Stotler’s pickup when they did, the evidence would have undoubtedly been discovered a little later. Obviously, with Stotler in custody, he was not going to be allowed to get in his truck and drive away. Also obviously, the arresting officers would not have allowed the truck to just sit on the street after Stotler was carted away. What they would have done, in all likelihood, was impound the truck and have it towed away. An inventory search would have naturally followed; the evidence would have been inevitably discovered.

Search warrant for defendant’s premises was supported by probable cause. United States v. Cabinett, 2009 U.S. Dist. LEXIS 123162 (D. Minn. November 6, 2009).*

Strip searches of sexually violent predators in confinement are reasonable when they come back from outside the institution. Kitchens v. Mims, 2010 U.S. Dist. LEXIS 28279 (E.D. Cal. March 23, 2010).

Everything defendant says in his 2255 petition about the search of his property, even if true, does not support an ineffective assistance claim. United States v. Zamora-Solorzano, 2010 U.S. Dist. LEXIS 28406 (D. Kan. March 24, 2010).*

The time for completion of the stop was not extended by the officer past the time to get a response from dispatch, so it was not unreasonable. United States v. Chaloux, 2010 U.S. Dist. LEXIS 28023 (D. Neb. March 5, 2010).*

Defendant’s giving a false name to the officer justified arrest and a search incident. United States v. Butler, 2007 U.S. Dist. LEXIS 99176 (W.D. Wash. January 23, 2007)* (note that this case is pre-Gant, but appears to be consistent with Gant because the search would be for evidence of identity).

Forget Privacy: The Warren Court’s Regulatory Revolution in Criminal Procedure by Eric J. Miller of the St. Louis University School of Law. Abstract:

The standard story describing the Warren Court’s criminal procedure “rights revolution,” claims that the Court, motivated by liberal egalitarianism, engaged in a rights-expanding jurisprudence that made it harder for the police to search, seize, and interrogate criminal defendants. Frightened by the popular backlash against high crime rates, a cowed Court in Terry v. Ohio shifted from its rights-expanding to a rights-constricting phase, making it easier for the police to search and seize criminal suspects. Measured by this rights revolution, there were in fact two Warren Courts, a liberal and a more conservative one, emblematically separated by Terry.

The standard story is wrong. The Warren Court’s Fourth Amendment jurisprudence cannot be separated into rights-expanding and contracting phases. Rather than introducing a privacy right, the Warren Court, from the early 1960s onwards, mounted a consistent attack on pre-existing versions of the right to privacy. Rather than a privacy-protecting rights regime, the central Fourth Amendment right under the Warren Court was personal security. Extending security into areas hitherto unregulated by the law was a major concern of the Terry Court: an expansionist Terry cannot be squared with a Court in retreat in response to public outcry over crime rates.

Worse, the story produced a barren doctrinal and political account of the Fourth Amendment. Focusing on equality, anti-discrimination, and privacy too easily paints law enforcement as a repressive force whose power and numbers should be severely limited. This narrow liberalism has turned progressive attention away from the vital and difficult task of generating a doctrinal and political account of policing: its justification, intrinsic limits, and proper means of regulation.

On PrisonPlanet.com: Biometric Scans for Traffic Stops, with a YouTube video of Milwaukee police using fingerprint scanners on drivers.

This thoughtful piece makes cogent points about the fingerprint dragnet of Davis v. Mississippi from 1969 and personal security from Schmerber v. California from 1966.

In Delaware v. Prouse in 1979, however, the Court held that random stops of drivers to check the validity of their licenses and safety equipment were unreasonable. In a throwaway paragraph designed to get votes, the Court said in dicta that roadblocks to check papers would be reasonable, even though that was not the issue:

Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. The judgment below is affirmed.

Law enforcement since the beginning of time has had an “us v. them” attitude about citizens and citizen’s rights. What happens today is a product of advancing technology, so don’t be surprised that biometric fingerprint scanning is here. The question instead is what we do about it? Or, what can we do about it? Has the privacy train long ago left the station? Maybe so, and long before biometric scanning was available. One need only go back to Nixon’s Supreme Court.

My fear is that anybody who presents a driver’s license could be found to be subject to a biometric fingerprint confirmation of the fact, assuming the stop is legal. Therefore, the dragnet of Davis likely is inapposite because that case involved a round-up. Here, no round-up because there is a valid stop. The Supreme Court long ago held that there was no reasonable expectation of privacy in voice or handwriting, and it said in Schmerber in dicta (at 764) before that even that fingerprints fared no better. The government will argue: If your driver’s license and that magnetic strip on the back have data about you [and what about your fingerprint or retinaprint being on the magnetic strip someday?] and your picture, what is the difference that a fingerprint confirmation of your identity is sought on the scene?

I, for one, don’t want to give a fingerprint to prove who I am. My local police for 20 years required a thumbprint on a traffic citation to confirm the identity of the person stopped because of the problem of drivers using somebody else’s driver’s licenses, so it is a real problem.

How can the law protect against fingerprint confirmation? Maybe it can’t, but should it? Let the dialog begin.

The good faith exception would not be applied to an officer’s allegations in a search warrant affidavit where similar allegations were rejected in state court two months earlier. The officer made nearly the same allegation in a search warrant affidavit about a GNC’s inositol that he alleged was a common cutting agent for cocaine. Since the officer sat through that state court suppression motion just two months before he wrote this affidavit, he was on notice that there was no probable cause because of the many legitimate uses of the product. Prevention of withholding information from the issuing magistrate is what the Leon exceptions are for. The motion to reconsider the denial of the motion to suppress is granted. United States v. Hopewell, 2010 U.S. Dist. LEXIS 31870 (S.D. Ohio March 31, 2010):

Applying the same reasoning that the Sixth Circuit applied in Frazier, this Court finds that this is one of the rare cases wherein it is appropriate to consider information that was known to the officer at the time of seeking the warrant but that was not included in the warrant affidavit. Although this is not a situation in which a different magistrate had previously rejected the affidavit, the Hampton suppression hearing transcript demonstrates that just two months prior to seeking the warrant in this case, Agent Crock sat through a hearing in which a judge ruled that a similar affidavit was not supported by probable cause. Additionally, during that hearing, Agent Crock was put on notice of a variety of inositol. Therefore, it was not reasonable for Agent Crock to place as much emphasis as he did on the purchase of inositol in the instant case. Following the Hampton hearing, Agent Crock and the other RENU agents should have reevaluated their practice of investigating and subsequently arresting people on the basis of the purchase of inositol. At the very least, they should have modified that practice so that they gathered more evidence of actual illegal activity prior to seeking a search warrant. The Court cannot, under these circumstances, conclude that the officers were acting in good faith. Indeed, this is precisely the type of situation to which the exclusionary rule should apply–-a situation in which the exclusion of evidence will deter future violations of the Fourth Amendment. See Leon, 468 U.S. at 897.

Hat tip to Jay Clark of Cincinnati for the order.

Claimant was relieved of $90,000 in cash at the MSP airport after TSA called the airport police. Claimant was preselected for a more intense screening on the issuance of the boarding pass [apparently “SSSS” on it]. The x-ray revealed an opaque object, so TSA opened the bag, finding the cash. TSA’s questions did not raise reasonable suspicion. The airport police took him away for questioning and that was without reasonable suspicion. TSA and the airport police found his story suspicious, but the court did not. The motion to suppress the cash is granted. A dog alert to the cash was well after the seizure [aside from being meaningless]. United States v. $90,000 in United States Currency, 2010 U.S. Dist. LEXIS 31818 (D. Minn. March 31, 2010), USMJ R&R, United States v. $90,000 in United States Currency, 2009 U.S. Dist. LEXIS 126396 (D. Minn. September 22, 2009). [What about TSA reporting cash? It’s none of their damn business. What does cash have to do with air transportation security?] Update: TSA’s blog has an April 2009 post about calling the police about cash. On Gadling.com is this post with video, Fox, too, about a cash seizure of $4,700. My prior post about a TSA cash seizure is here.

2255 is denied because the copies of the search warrant petitioner obtained under a state FOIA request were redacted, and that does not mean that the original was unsigned. United States v. Askew, 2010 U.S. Dist. LEXIS 32048 (W.D. Pa. April 1, 2010).*

Defendant’s motion for return of two items of property under Rule 41(g) that were seized during his arrest is denied where the return of property does not show them. United States v. Somerville, 2010 U.S. Dist. LEXIS 32101 (D.N.J. April 1, 2010).*

Secret service agents went to the Great News Network (GNN), a religious organization, to seize $1,000,000 bills that they used as a religious tract. The court finds that because the government does not issue any currency over $100, nobody would be misled, aside from the printing on the bill about going to heaven. The bill was fairly characterized as a religious tract. Its warrantless seizure from the GNN offices from a person they knew was powerless to consent was invalid, as was the consent because it was coerced. Rundus v. United States, 2010 U.S. Dist. LEXIS 31748 (N.D. Tex. March 30, 2010).* See posts on GNN, Christian Post, PrisonPlanet.com. One would think that the Secret Service would better train its officers.

Defendant’s stop for a traffic offense led to the development of reasonable suspicion. Although the video did not show defendant’s sweating or nervousness, the officer was in a better position to see it. While defendant seemed on the video unsure of some of the questions to him and he needed an interpreter during court, the court finds that his consent was valid, even though multiple officers had showed up by then. A density meter revealed a hidden compartment. Defendant probably thought that the drugs were so well hidden that they would not be found. United States v. Vicuna, 2010 U.S. Dist. LEXIS 31687 (W.D. La. February 22, 2010).*

The police developed probable cause to believe that defendant was taking pictures of his 12 year old daughter in the nude. They got a search warrant for his computer for the pictures, but there was no statement in the affidavit of how the pictures would have gotten to the computer or direct knowledge they were there. Nevertheless, probable cause was shown because that was a logical inference. United States v. Wise, 2010 U.S. Dist. LEXIS 35538 (W.D. Pa. April 6, 2010)*:

After consideration of the affidavit and the normal inferences that can be drawn from the affidavit, we conclude that there was a substantial basis for the magistrate to believe that evidence of child pornography sought in the warrant would be found on Defendant’s computer. The type of crime alleged to have occurred is child pornography. The evidence presented in the affidavit, along with the ‘normal inferences’ that can be drawn from the affidavit, reveals in part that the Defendant used a digital camera and video camcorder to take nude photographs and pictures of a child, that he talked about a website in reference to the child becoming a model, that he took steps to keep the pictures and videos secret (by only taking photos and video while the two were alone, by announcing that he did not want his new wife to see the photographs, by telling his daughter not to tell anyone about the photographs, and by using a computer to transfer the pictures from a computer to a disk), and that he repeatedly took video and photographs on different occasions.

This evidence abundantly establishes a substantial basis for the magistrate to believe that evidence of child pornography would be found on the defendant’s computer. It is a minor inferential leap to conclude that a person alleged to be actively and repeatedly producing child pornography using electronic devices that are meant to be connected to a computer (and that he had actually used a digital camera to connect to a computer) would also store the child pornography on his computer.

The officers had reasonable suspicion to stop the defendants for credit card fraud, and the defendant volunteered to be searched; he was not asked for consent. The officer did, and the consent is valid. United States v. Santiago, 2007 U.S. Dist. LEXIS 52094 (E.D. Mo. July 18, 2007), adopted United States v. Santiago, 2007 U.S. Dist. LEXIS 56882 (E.D. Mo. August 2, 2007).

The police were looking for a man in an apartment complex, and they encountered the defendant, who they quickly determined was not the guy they were looking for. They told him to have a seat while they were looking. He was not touched nor was a weapon displayed. He ultimately made incriminating statements, and he was arrested for possession of a weapon they found. He was not reasonably in “custody” for Fifth Amendment and Miranda purposes. United States v. Luna-Encinas, 08-12574 (11th Cir. April 13, 2010).*

Consent to search the car was necessarily broad. The officer suspected defendants of credit card fraud at the time of the stop. The consent search produced probable cause to arrest. United States v. Smith, 2007 U.S. Dist. LEXIS 61009 (E.D. Mo. August 20, 2007).*

IRS search warrant for the Oregon Al Haramain Islamic Foundation, Inc. was not overbroad, and the seizure of records outside the warrant was justified here, considering a taint team participated and the affidavit addressed what was seized. The foundation’s lawyer was present during the search. United States v. Sedaghaty, 2010 U.S. Dist. LEXIS 37186 (D. Ore. April 13, 2010):

Defendant asks that, at a minimum, the materials seized outside the warrant be suppressed, if not all of the evidence. [¶] However, the warrant permitted seizures of the computers and media. Agent Anderson described a careful search protocol in which a search of the computers and data was done with search terms carefully tailored to information related to the items to be seized listed in the warrant. A taint team was utilized and coordination with the AUSA implemented whenever questions regarding whether information was covered by the warrant. The affidavit adequately explained why the computers had to be taken off-site for review and why they would likely contain evidence within the scope of the affidavit. Given the nature of the data and the fact that it had been deleted, the actions taken by the government were reasonable and permitted by the warrant as approved by Magistrate Cooney. See U.S. v. Banks, 556 F.3d 967, 973-74 (9th Cir. 2009) (A generalized seizure of business documents may be justified if it is demonstrated that the government could not reasonably segregate documents on the basis of whether or not they were likely to evidence criminal activity). See also, United States v. SDI Future Health Inc., 568 F.3d 684, 699 (9th Cir. 2009) (an affidavit is part of a warrant, and therefore potentially curative of any defects, if (1) the warrant expressly incorporated the affidavit by reference and (2) the affidavit either is attached physically to the warrant or at least accompanies the warrant while agents execute the search).

Wal-Mart security who detained defendant and asked for his cell phone were not acting as agents of the police. They had motive to protect the integrity of the company from crime. United States v. Duffy, 2010 U.S. Dist. LEXIS 37495 (W.D. Ky. April 14, 2010),* USMJ R&R 2010 U.S. Dist. LEXIS 37563 (W.D. Ky. February 1, 2010).

Defense counsel was not ineffective for not raising aerial surveillance as a Fourth Amendment violation since that issue is foreclosed by Florida v. Riley. United States v. Manns, 2010 U.S. Dist. LEXIS 38565 (E.D. Ky. April 20, 2010).*

A valid protective sweep occurred in conjunction with an arrest warrant, and boxes of financial records were seen. A search warrant later issued. Because the motion would have failed, it was within the professional judgment of the lawyer to not challenge it. Skrzypek v. United States, 2010 U.S. Dist. LEXIS 38573 (N.D. Ill. April 20, 2010).*

Officers had probable cause after a plain view. It was immediately apparent to the officers they were dealing with bootleg Nike shoes. United States v. Tarpley, 2010 U.S. Dist. LEXIS 39188 (W.D. Pa. April 21, 2010).*

Defendant argued that a list of names was stolen from him by the police. The court finds as a fact that he gave the list voluntarily during his seven different statements. United States v. Bonner, 2010 U.S. Dist. LEXIS 38586 (M.D. Pa. April 20, 2010).*