Plain feel to an experienced drug officer is apparently different than other plain feels. If a narc knows it’s drugs, that supports plain feel. United States v. Willis, 2010 U.S. Dist. LEXIS 39853 (S.D. W.Va. April 22, 2010):

[T]he plain feel doctrine “does not require absolute certainty that the object is contraband.” United States v. Jones, 303 F. Supp. 2d 702, 706 (D. Md. 2004). “To the contrary, the plain feel doctrine, like the plain view doctrine, only requires that the officer have probable cause to believe that the object is contraband by the time he realizes it is not a weapon.” Id. (citations omitted). At the other end of the spectrum, the officer is not allowed to determine if an item is contraband by “squeezing, sliding, and otherwise manipulating the contents of defendant’s pocket.” Dickerson, 508 U.S. at 378 (disapproving of officer who engaged in this behavior after he already knew that the item in the defendant’s pocket was not a weapon).

. . .

When Stephenson felt the pocket, he felt a lump that was hard and round, and that he believed could possibly be crack cocaine. Further, in response to Stephenson’s inquiry as to what the object was, Defendant said it was “work,” meaning drugs. Under the plain feel doctrine, Stephenson was able to seize the Crown Royal bag and the possible contraband. See Jones, 303 F. Supp. 2d 702. Based upon the totality of the circumstances, including the feel of the lump, the bag Trooper Stephenson saw, as well as what he knew about the location, the Defendant and his experience as a drug investigator, at the time Stephenson realized the lump was not a weapon, he had probable cause to believe that the lump in Defendant’s pocket was illegal contraband.

“The totality of these factors justified Trooper Stokes’ belief that reasonable suspicion existed that defendant was armed and dangerous. Perhaps individually they might not have crossed that threshold, but factors that seem benign when considered separately might establish reasonable suspicion when viewed collectively.” United States v. Umphryes, 2010 U.S. Dist. LEXIS 39106 (E.D. Mich. March 19, 2010).*

The defendant denied any responsibility for the contents of the seat of the moped he was driving when he was stopped. Therefore, he has no privacy interest and no “standing.” United States v. Catlett, 2010 U.S. Dist. LEXIS 39072 (E.D. Ky. January 14, 2010).*

When they are posted, Tuesday’s cases will NOT be back dated to Tuesday. Wednesday’s should be timely posted.

Defendant was seen speeding, and he fled from Sitka, Alaska, police officers into his house trailer. The officer entered in hot pursuit. This entry was unreasonable because the exigency was not serious enough to permit an entry into the home. DUI charge dismissed by trial court was affirmed. State v. Siftsoff, A-10322 (Alaska App. April 30, 2010):

We conclude that Judge George’s order accurately reflects Alaska law. We have reviewed the Alaska cases which discuss the “hot pursuit” exception to the warrant requirement. In reviewing these cases, we find that the decisions do not support allowing the police to enter a residence merely because the police are engaged in an immediate and continuous pursuit of a suspect. The police must have “a compelling need for official action and no time to secure a warrant.”

. . .

In this case, Judge George applied the “hot pursuit” analysis that our supreme court originally set out in Gray. Although Gray dealt with the warrantless entry of a motor vehicle, this court has consistently applied the Gray analysis to situations where the police enter a residence in hot pursuit of a suspect.

Under this analysis, police officers in hot pursuit of a suspect may enter a residence without a warrant if (1) the officers have probable cause to believe that the person has committed a serious offense; (2) the officers know or have probable cause to believe that the person is in the residence they are about to enter; and (3) the officers have probable cause to believe that some additional exigent circumstance requires a prompt entry into the residence — for instance, that the person is armed or otherwise presents an imminent threat of harm to the officers or others, or that the person will flee the residence and escape unless the officers make an immediate arrest, or that the person will destroy evidence unless immediately apprehended. Finally, even when these criteria are met, the law requires the police to restrict themselves to a peaceable entry unless the situation reasonably requires the use of force.

Hat tip to Kevin Higgins, Asst. Public Defender.

Texting while driving does not support a search incident. Proper purpose of traffic offenses in NY is to just issue a summons and let the driver go on his way, and that is state policy. This arrest was thus pretextual. People v. Abdul-Akim, 5518/09 (Kings Co. NY May 6, 2010):

Given that backdrop, the court concludes that the police conduct here constituted an unreasonable intrusion on privacy, even on the assumption that defendant Ayala committed the cell phone infraction. There was no need to arrest defendant Ayala. Issuance of a citation was eminently practicable, for defendant Ayala had numerous items of identification — and, of course, a valid license. Beyond that, the back seat passenger, Brown, was licensed, and could have driven the car had defendant Ayala not been able to. Moreover, the choice to arrest defendant Ayala was accompanied by a decision to seize his automobile, and ultimately to inventory all its contents. Even though the arrest was authorized by statute, the disproportionate nature of the police response to a supposed cell phone violation is apparent. That police response was unreasonable. [¶] A custodial arrest may not be employed as a pretext to conduct a search.

NYLJ article here.

CNET News: Apple spurred police in iPhone probe:

REDWOOD CITY, Calif.–Apple pressed local police to investigate the loss of a next-generation iPhone a day after Gizmodo published photographs, telling investigators that the prototype was so valuable, a price could not be placed on it, according to court documents made public Friday.

In response to arguments made by CNET and other media organizations, a San Mateo judge unsealed documents (PDF) that provide a glimpse into an April 20 meeting between law enforcement and Apple lawyers and executives. They also highlight a madcap dash for evidence that evening that led a police detective to a gas station, a church, and a bush in Redwood City where a thumb drive and a 1GB Lexar Media compact flash card were allegedly hidden. (link in original)

Defendant did not sufficiently strive to withdraw the consent to search his vehicle. United States v. Gutierrez, 2008 U.S. Dist. LEXIS 113454 (D. Neb. May 6, 2008)*:

There is no evidence the defendant attempted to attract the attention of Deputy Maddux. Although, the defendant said, “no” and “sir,” the defendant did not raise his voice, attempt to exit the vehicle, roll down a window, honk the horn, or make any other gesture to gain attention. The defendant was under some obligation to make his intent to withdraw consent known to Deputy Maddux. See id. Failure of the defendant to do so does not render Deputy Maddux’s conduct unconstitutional.

When the defendant tried to get out of the police car, the officer grabbed for his arm, so defendant knew that he was not free to leave. At the time, the officer did not have articulable reasonable suspicion. United States v. Moss, 2008 U.S. Dist. LEXIS 113459 (D. Neb. June 10, 2008).*

Defendant was stopped for window overtint, and he gave a false name to the police officer. The stop thus continued with probable cause. United States v. Barrera-Gonzalez, 2008 U.S. Dist. LEXIS 113453 (D. Neb. May 21, 2008).*

The affidavit for search warrant showed probable cause based on the totality of the facts and the officer’s experience. United States v. Capps, 2008 U.S. Dist. LEXIS 113476 (S.D. Ga. May 14, 2008).*

In today’s NYTimes: The Threat to Miranda:

For nearly nine years, the threat of international terrorism has fueled a government jackhammer, cutting away at long-established protections of civil liberties. It has been used to justify warrantless wiretapping, an expansion of the state secrets privilege in federal lawsuits, the use of torture, and the indefinite detention of people labeled enemy combatants. None of these actions were necessary to fight terrorism, and neither is a dubious Obama administration proposal to loosen the Miranda rules when questioning terror suspects and to delay presenting suspects to a judge.

By the time defendant sought to revoke his consent, the officer had probable cause to believe that his car had contraband secreted in it, and revocation came too late. Rockward v. State, 2010 Ark. App. 110, 2010 Ark. App. LEXIS 98 (February 3, 2010).

Officers entered defendant’s home on a federal arrest warrant which was valid under Payton, and a state search warrant. The smell of marijuana inside supported a wider search. While there was reason to question the validity of the state search warrant, it is obvious the police could have gotten a federal search warrant, too, and inevitable discovery supported the search. United States v. Jackson, 596 F.3d 236 (5th Cir. 2010)*:

In this case, the officers did not seek a search warrant based on the evidence which could have been seized pursuant to the arrest warrant because they already had a state search warrant. But, had they had reason to question the validity of the state search warrant or had there been no state search warrant, we have little doubt that the officers nonetheless could have secured a search warrant and conducted the search that yielded the disputed evidence.

As to the second requirement for invoking the inevitable discovery doctrine, it almost goes without saying that the government was actively pursuing a substantial alternate line of investigation at the time of the alleged constitutional violation. Lamas, 930 F.2d at 1102. Indeed, we have indicated that the “active-pursuit element” may no longer be necessary to invoke the inevitable discovery rule. Id. at 1104. In this case, we need not address the continuing vitality of the active-pursuit element, as an ongoing grand jury investigation that has already led to an indictment would clearly satisfy it.

New York Search Warrants and The Particularity Requirement by Michael Joseph on New York Criminal Lawyers Blog.

Epstein, Murphy, and Kerr On the Third-Party Doctrine by Orin Kerr on Lawkipedia:

Last year I published an article, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009), defending the widely-criticized Fourth Amendment rule that what a person discloses to a third party cannot retain Fourth Amendment protection.

The Berkeley Technology Law Journal has now published three essays on the third party doctrine at least in part in response to my article. First, Richard Epstein wrote an essay offering his own take on the third-party doctrine, and at times responds directly to some of my ideas. Second, Erin Murphy wrote a short reply that is largely a critical response to my article. Finally, the BTLJ published a short response by me to both Epstein and Murphy.

Meeting with the defendant in his house was consensual and nonconfrontational. The defendant was asked to provide fingerprints, and he did. The officer asked about guns and the defendant admitted there were guns in the house. Some were locked in a gun safe for which he didn’t have the key. One was in a soft case which he showed the officer which was not seized at the time. United States v. Alcorn, 2010 U.S. Dist. LEXIS 45817 (E.D. Mo. April 15, 2010).*

Defendant got out of his car and was walking when the officer approached him to talk. He was stopped by the officer. The officer, however, had reasonable suspicion that defendant was involved in a robbery, and the stop continued lawfully. United States v. Rush, 2010 U.S. Dist. LEXIS 46824 (D. Neb. April 9, 2010).*

Officers had probable cause based on the smell of burnt marijuana and then a dog alert. Defendant also consented orally and in writing. United States v. Bianchini, 2010 U.S. Dist. LEXIS 45699 (E.D. Tenn. April 19, 2010).*

Defense counsel was not ineffective in challenging defendant’s stop because there was reasonable suspicion. Jones v. United States, 2010 U.S. Dist. LEXIS 46587 (E.D. Tenn. May 11, 2010).*

On summary judgment, the defendant’s Art. III standing was not shown, but he gets a break to try again because the Ninth Circuit’s law isn’t clear. United States v. $133,420.00 in United States Currency, 2010 U.S. Dist. LEXIS 46863 (D. Ariz. April 9, 2010):

Louis’ responses to the interrogatories merely assert bald, unexplained ownership and possessory interests in the currency. There is no explanation of how or why he acquired the funds. While he is entitled to invoke Fifth Amendment protection against self-incrimination, he does so at the peril of failing to produce sufficient evidence of standing to contest this civil proceeding. Louis has produced no evidence corroborating his claims other than the fact that the currency was in his possession at the time it was seized. Mere unexplained possession does not establish a possessory interest even at the pleading stage, and it is insufficient to create a genuine issue of material fact as to ownership.

The stop of defendant’s car was justified, so the consent that came later was valid. United States v. Nero, 2010 U.S. Dist. LEXIS 46755 (S.D. Ga. April 2, 2010).*

On YouTube.com: Fox News Freedom Watch’s Judge Napolitano Shreds Columbia, MO SWAT Raid.

(Too bad judges and their law clerks don’t read this blog, because they prefer the ivory tower to real life.)

ABAJ: Biometric ID Card Might Be Able to Pass Muster in the Supreme Court, Debra Cassens Weiss, referring to a UPI.com article:

UPI considers the question and says the justices would likely turn down a constitutional challenge. The story cites the Supreme Court’s 6-3 decision in 2008, Crawford v. Marion County Election Board, in which the justices upheld a law requiring voters to present government-issued IDs. The lead opinion by Justice John Paul Stevens said the law was supported by the valid interest of protecting the electoral process.

The plaintiff sought return under Rule 41 of surreptitiously recorded videotapes of adults in his bar in private areas because they were seized during a search but not used as evidence in his case. The district court made no findings as to whether the female subjects of the videos had a reasonable expectation of privacy where they were recorded. Remanded for findings. The court discusses the law of video voyeurism and the reasonable expectation of privacy. Savoy v. United States, 2010 U.S. App. LEXIS 9652, 2010 FED App. 0131P (6th Cir. May 12, 2010),* prior opinion affirming conviction, United States v. Savoy, 280 Fed. App’x 504, 506 (6th Cir.), cert. denied, 129 S. Ct. 742 (2008).

Defendant’s arrest for carrying a weapon without a carry permit was based on probable cause, and that supported a further search of the car. United States v. Foster, 2010 U.S. Dist. LEXIS 46234 (D.Minn. April 9, 2010).*

The arresting officer in this case just is not believable that he did not stop the defendant for pretextual reasons. United States v. Padilla, 2010 U.S. Dist. LEXIS 45708 (D. Ariz. March 3, 2010)*:

The Government need only show one traffic violation for a legitimate pretextual stop. As discussed above, there was no license plate light violation, speed violation, crossing the fog line violation or failure to pull over in response to the emergency lights. That Defendant Padilla in fact violated the seatbelt requirement is undisputed. What is disputed is whether Officer Henry knew about the violation before or after the stop. The timing of his knowledge rests solely on Officer Henry’s credibility.

As the investigating officer in this case, Officer Henry has an interest in the outcome of the case. As discussed in detail above, in many instances, Officer Henry’s testimony concerning the license plate light, speeding, crossing the fog line and failure to pull over was not credible and not consistent with his prior written and verbal statements and not consistent with the evidence. On those four violations, Officer Henry simply was not credible.

When Officer Henry testifies about the seatbelt, his credibility does not start with a clean slate. Rather, Officer Henry’s willingness to stray from the facts on these related issues leads to the conclusion that he would be similarly unconstrained by the actual facts when testifying about the seatbelt. This Court finds that Officer Henry’s testimony was not credible. As such, the Government has not satisfied its burden of proof that Officer Henry observed the seatbelt violation, the silhouette of the belt hanging vertically, prior to stopping the vehicle driven by Defendant Padilla.

The Magistrate Judge recommends that the District Court grant the motion to suppress evidence based on lack of reasonable suspicion for the traffic stop. Officer Henry did not have reasonable suspicion that any criminal activity was afoot when he stopped the Defendants’ vehicle. Furthermore, Officer Henry’s assertions that he stopped the Defendants’ vehicle for independent traffic violations are not credible and are not supported by the evidence presented at the hearing.

In a Franks challenge, the court should not look beyond the affidavit and what it shows. A CD was proffered into evidence which the court did not listen to because it went beyond the scope of the court’s standard of review. United States v. Buis, 2009 U.S. Dist. LEXIS 126967 (E.D. Tenn. May 8, 2009):

Generally, in determining the sufficiency of the search warrant affidavit, the Court is “concerned only with the statements of fact contained in the affidavit.” United States v. Hatcher, 473 F.2d 321, 323 (6th Cir. 1973); see also Whiteley v. Warden, 401 U.S. 560, 565 (1971). In reviewing the propriety of the search warrant, the Court considers “the evidence that the issuing magistrate had before him only ‘to ensure that [he] ha[d] a substantial basis … for concluding that probable cause existed.'” United States v. Jones, 159 F.3d 969, 973 (6th Cir. 1998) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)) (alterations in original). In other words, the Court does not look beyond the four corners of the affidavit in assessing whether it provides probable cause.

Forfeiture plaintiff had a reasonable expectation of privacy in a trailer parked on the street. Brownstein v. Doe, 2010 U.S. Dist. LEXIS 45507 (E.D. N.Y. May 5, 2010).*

Defendant’s Fourth Amendment claim in his § 2255 case was “baseless.” Moreover, he was actively cooperating with the government, and it is highly unlikely that he would have even filed a motion to suppress. United States v. Allen, 2010 U.S. Dist. LEXIS 45098 (E.D. La. March 30, 2010).*

A police officer responding to a domestic call comes to defendant’s house and demands entry with gun drawn. Defendant says no, what about a warrant? The officer comes in anyway. The defendant’s obstruction conviction is reversed and dismissed because the officer was, at most, barred from entry only for seconds. The defendant did not raise this as a Fourth Amendment issue so that was not decided, and the court didn’t exactly decide that invoking one’s constitutional right to ask for a warrant to enter the house is not obstruction of justice. Kee v. City of Hampton, 24 VLW 679 (November 10, 2009) (unpublished).* Hat tip to Virginia Family Law Appeals: Kee v. Hampton: Using 4th Amdt. Rights Isn’t Obstruction of Justice.

In a § 2254 habeas case, the Eleventh Circuit remanded for a hearing on the merits of a Fourth Amendment claim to decide whether defense counsel was ineffective in not pursuing his Franks challenge. Still applying the AEDPA standard of review, the state court’s findings have support in the record, such that they did not act unreasonably in deciding that he did not state a Franks claim. Hearn v. Sec’y of Corrections, 2010 U.S. Dist. LEXIS 45209 (M.D. Fla. April 13, 2010).*

Picture This: Body Worn Video Devices (‘Head Cams’) as Tools for Ensuring Fourth Amendment Compliance by Police by David A. Harris of the University of Pittsburgh School of Law forthcoming in the Texas Tech Law Review.

Abstract:

A new technology has emerged with the potential to increase police compliance with the law and to increase officers’ accountability for their conduct. Called “body worn video” (BWV) or “head cams,” these devices are smaller, lighter versions of the video and audio recording systems mounted on the dash boards of police cars. These systems are small enough that they consist of something the size and shape of a cellular telephone earpiece, and are worn by police officers the same way. Recordings are downloaded directly from the device into a central computer system for storage and indexing, which protects them from tampering and assures a defensible chain of custody.

This article explores the good that BWV can do for both the police and members of the public, particularly how these recordings might play a role in assuring that officers comply with Fourth Amendment search and seizure rules. Field tests of BWV in Britain have shown that police used the devices to keep records and record evidence, and that the devices were a uniquely effective bulwark against false complaints. Coupled with a requirement that every citizen encounter involving a search or seizure be recorded, and a presumption that without a recording the factfinder must draw inferences in favor of the defendant, BWV can help resolve disputes over search and seizure activities, and give the public a heretofore unattainable degree of assurance that police officers enforcing the law obey it as they do so. While BWV is certainly no panacea, and presents significant issues of tampering and reliability, it can help bring accountability and rule following to an aspect of police behavior that has largely proven resistant to it.

Hat tip to Crim Law Prof blog.

Motion to reconsider motion to suppress is granted and motion to suppress granted. The court erroneously put the burden of proof on the defendant, at the government’s request, to prove that the warrantless search was unreasonable. United States v. Tompkins, 2009 U.S. Dist. LEXIS 126944 (C.D. Cal. November 2, 2009):

It is fundamental to our system of criminal justice that the Government must justify the searches or seizures it conducts, either by seeking a warrant based upon probable cause or by proving that it has acted lawfully pursuant to an exception to the warrant requirement. Requiring the defendant whose Fourth Amendment rights have allegedly been violated to prove the absence of a lawful basis for the search or seizure would flip the Fourth Amendment on its head.

Bearing this fundamental principle in mind, the Court must now answer the question set forth at the outset: on a motion to suppress evidence arising from a Terry stop where the evidence is in equipoise, who bears the ultimate burden of proof? The Government. It is the Government’s burden to prove by a preponderance of the evidence that the officer conducting the stop had a reasonable and articulable suspicion that the defendant was engaged in criminal activity. See Terry, 392 U.S. at 30; see also United States v. Matlock, 415 U.S. 164, 177 (1974) (referring to the government’s burden on a motion to suppress as a preponderance). In other words, in the event of a tie, the defendant must prevail.

The Court therefore concludes that the Government has not satisfied its burden of establishing that it is more probably true than not that Defendant failed to stop at the stop sign. As a result, Officer Vazquez’s seizure of Defendant was not justified.

Practice Pointer: Every once in a while, the government leads a court into error by arguing the wrong burden of proof–see e.g., here and here. Aside from the fundamental mistake is the problem with a judge or an appellate panel being so government-oriented that they fall for it without thinking. Consequently, it underscores that defense counsel cannot assume the court knows what the burden of proof is. Therefore, in every case, if the burden is on the government, say so in the motion to suppress and cite something.

A TSA worker went through a full body scanner for training. His supervisor allegedly commented on the lack of size of his “manhood.” The enraged TSA worker assaulted the supervisor. See Violent TSA Worker Can’t Take His Own Medicine on CrimeFileNews.com. See MiamiHerald.com.

So, just how much can TSA see? Or was it a joke?