Encounter with the police officer investigating a shooting where defendant was stopped on the street and defendant said he wanted to leave and the officer [essentially] told him to stay was not a seizure. United States v. White, 670 F. Supp. 2d 462 (W.D. Va. 2009)*:

It appears that the Defendant argues the Continued Encounter constituted a seizure when the following exchange took place.

Defendant: Can I go home, please … man, I’m tired.

Officer: … yeah, just a second. I have to make sure you’re not wanted.

Defendant. Oh yeah … got a job … no warrants … graduated high school and everything

This exchange poses a closer question than the Initial Encounter, but it too falls short of a seizure. Contrary to Defendant’s assertion that “Dean denied permission, saying that before he would allow White to leave he would ‘have to make sure you’re not wanted,'” Defendant’s Memorandum, at 12 (emphasis added), Dean’s response could also be taken to mean that, “yeah,” the Defendant could go home, but the Officer requested “just a second” of the Defendant’s time “to make sure [he was] not wanted.”

Defendant was found to have consented to a search of his car after he was validly stopped for speeding and overtinted windows. United States v. Dumervil, 2009 U.S. Dist. LEXIS 106819 (S.D. Fla. October 15, 2009).*

The government showed at hearing that the grand jury subpoenas for records had an independent basis from the alleged illegal search. United States v. Orozco, 2009 U.S. Dist. LEXIS 107362 (D. Colo. November 3, 2009).*

Defendant won his search issue on the state law nighttime search law when being prosecuted for child sexual abuse; Kelley v. State, 371 Ark. 599, 269 S.W.3d 326 (2007); but lost in federal court in his child porn case because there is no separate federal nighttime search rule. [He was convicted on retrial and affirmed. Kelley v. State, 2009 Ark. 389, 2009 WL 1819336 (2009).] Moreover, defendant was not present at the time of the search, so he could not be prejudiced by the nighttime entry. Finally, the good faith exception sustains the search. United States v. Kelley, 670 F. Supp. 2d 943 (E.D. Ark. 2009):

Case law is sparse as to precisely what the Fourth Amendment requires be stated in an application for a warrant for a nighttime search. 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 4.7 (4th ed. 2004). The rationale for heightened scrutiny of nighttime searches was stated by Justice Marshall:

In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night. The idea of the police unnecessarily forcing their way into the homes in the middle of the night–frequently, in narcotics cases, without knocking and announcing their purpose–rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a “police state’ lacking in the respect for … the right of privacy dictated by the U.S. Constitution.’ S. Rep. No. 91-538, p. 12 (1969).

Gooding v. United States, 416 U.S. 430, 462, 94 S. Ct. 1780, 1796, 40 L. Ed. 2d 250 (1974) (Marshall, J., dissenting). Here, no one was home when the search warrant was executed. No one was disturbed in the middle of the night. To the extent that Kelley’s privacy was invaded by the search, that intrusion was no greater than if the warrant had been executed during daylight hours.

When a search is governed by Rule 41 of the Federal Rules of Criminal Procedure, the exclusionary rule applies only if the defendant is prejudiced in the sense that the search might not have occurred or would not have been so abrasive had proper procedures been followed, or if reckless disregard of proper procedure is evident. United States v. Harris, 324 F.3d 602, 606 (8th Cir. 2003); United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997); United States v. Bieri, 21 F.3d 811, 816 (8th Cir. 1994); United States v. Burgard, 551 F.2d 190, 193 (8th Cir. 1977); United States v. Burke, 517 F.2d 377, 386-87 (8th Cir. 1975). Although Rule 41 does not apply to this case, the Court will be guided by the Eighth Circuit cases addressing the issue of whether to apply the exclusionary rule when Rule 41 has been violated.

[Note: I wrote here a couple of years ago that I lost this same issue in the Eighth Circuit. Clear violation of nighttime search rule, motion to suppress filed, case nolle prossed, client promptly indicted federally.]

U.S. Park Police who observed empty beer bottles around a car had PC to believe the operator violated 36 C.F.R. § 4.14(b). Further examination revealed a cigar box with one missing and tobacco on the ground, and that was PC for drugs. United States v. Bowles, 2009 U.S. Dist. LEXIS 111618 (E.D. Va. November 30, 2009)*:

In the instant case, Officer Mace testified that his observation of empty beer bottles inside and outside the vehicle, a cigar box inside the vehicle missing one cigar, and tobacco fillings on the ground outside the vehicle gave him probable cause to believe that a crime had been committed and that Bowles had been involved in the crime. Specifically, Officer Mace testified that the empty beer bottles in and around the vehicle gave him probable cause to believe that Bowles had violated 36 C.F.R. 4.14(b) and that the tobacco fillings outside the vehicle and box of cigars missing one cigar inside the vehicle gave him probable cause to believe that Bowles had violated 21 U.S.C. 844.

The trial court’s finding of furtive movement supporting reasonable suspicion was not clearly erroneous. Commonwealth v. Rivera, 76 Mass. App. Ct. 304, 921 N.E.2d 1008 (2010)*:

The defendant quarrels only with the judge’s determination that his gestures were furtive, asserting that these movements were mere “fidgeting.” “The phrase ‘furtive gesture’ appears in many decisions where the issue is whether a patfrisk or a search of a vehicle is justified. The gestures are interpreted by the police (and by the courts) as demonstrating the hiding of contraband or as threatening the officers’ safety.”

Defense counsel was not ineffective for not filing a motion to suppress that could never be granted because a private search occurred. Moss v. State, 2010 Tenn. Crim. App. LEXIS 166 (February 24, 2010).*

DUI roadblock was constitutionally set up and was properly conducted. State v. Aloyo, 2010 Tenn. Crim. App. LEXIS 160 (February 19, 2010).*

Overly broad certified question for suppression appeal precluded appellate review in Tennessee. State v. Hawks, 2010 Tenn. Crim. App. LEXIS 157 (February 19, 2010).*

A juvenile and his mother living in a homeless shelter (“transitional family shelter”) had a reasonable expectation in their living quarters. It wasn’t palatial, but it was their home. Commonwealth v. Porter P., 456 Mass. 254 (March 11, 2010), rev’g Commonwealth v. Porter P., 73 Mass. App. Ct. 85, 895 N.E.2d 775 (2008):

The room that the juvenile and his mother shared at the shelter was a transitional living space, but it was nonetheless their home. The juvenile slept and kept his belongings in the room. He and his mother possessed a key to the room, allowing them the degree of privacy inherent in a locked door. The fact that he did not own the room, that he was limited in his use of the room, and that shelter staff members had a master key and could enter the room “for professional business purposes” does not diminish the legitimacy of his privacy interest in the room. The same can be said of a patron of a hotel or a tenant in a boarding house, both of whom enjoy a reasonable expectation of privacy in their rooms. See Stoner v. California, 376 U.S. 483 (1964) (hotel patron); McDonald v. United States, 335 U.S. 451 (1948) (boarding house tenant). Indeed, in Minnesota v. Olson, 495 U.S. 91, 98-100 (1990), the United States Supreme Court made clear that a guest who stays but one night in a friend’s home — with or without a key, and with or without paying rent — “has a legitimate expectation of privacy in his host’s home.” Id. at 98. “That the guest has a host who has ultimate control of the house is not inconsistent with the guest having a legitimate expectation of privacy” in the home. Id. at 99. In short, regardless of whether the juvenile resided in a palatial mansion or a single room in a transitional shelter, regardless of whether he owned the residence or was allowed to remain without paying rent, and regardless of whether his landlord or shelter director had a master key and could enter to ensure that he was abiding by the rules of the house, the juvenile had a reasonable expectation of privacy in his home.

[Quantifying the quality of the home can be risky business under the Fourth Amendment. Cases have found a reasonable expectation of privacy in a tent. Other courts have found a reasonable expectation of privacy in cardboard box “homes” of the homeless. The opinion also discusses three state cases rejecting apparent authority to consent under state constitutional law which it declines to follow.]

Federal law should govern a federal NCIS search on a military base for evidence of a murder of a civilian employee on the base that ends up prosecuted in state court. The court finds that this is a narrow issue in this case. The security search of defendant’s car on the military base was also valid. State v. Torres, 122 Haw. 2, 222 P.3d 409 (2009), amended by, reconsideration granted by 2010 Haw. App. LEXIS 1 (Haw. Ct. App., Jan. 4, 2010)
.

We further conclude that Sergeant Rozkiewicz’s security inspection of Torres’s car was lawful based on Torres’s implied consent and that the Command Authorization validly authorized the subsequent full-scale search by federal agents. Based on federal appellate court decisions involving searches in analogous circumstances on military bases, we hold that Torres implicitly consented to the search of his car, at least to the extent of the security inspection conducted by Sergeant Rozkiewicz.

Defendant was not seized by the officer. The officer was parked far away from the defendant and walked up to him and talked to him. The encounter was consensual. State v. Williams, 2009 N.C. App. LEXIS 2328 (December 22, 2009).*

Dog sniff within five minutes of stop was reasonable. Becoats v. State, 301 Ga. App. 768, 688 S.E.2d 686 (2009).*

Consent to search includes removing easily removable parts to a car that can be reattached without tools. Officers here also had probable cause to believe the vehicle had a hidden compartment. United States v. Gutierrez, 2010 U.S. Dist. LEXIS 30835 (D. Kan. March 30, 2010).*

Defendant was parked, and an unmarked car pulled up along side and then parked and the officers got out to talk to him. The officers asked for his DL. He was not stopped at this point. (“They did not order the occupants of the vehicle to do anything except produce a driver’s license, registration, and proof of insurance, which they were entitled to do under Drayton. See id. Because there was no seizure, the officers did not violate the Fourth Amendment.” [Oh, come on. They can refuse?]) When defendant could not produce a license, the encounter became a stop. The stop escalated into a valid patdown. United States v. Wade, 2010 U.S. Dist. LEXIS 30775 (E.D. Pa. March 29, 2010).*

Claim that a privileged document was seized from defendant’s property was not supported by the record, so the claim is denied. United States v. Capshaw, 2010 U.S. Dist. LEXIS 31356 (M.D. Ala. March 15, 2010).*

An Islamic organization had its telephone calls with its attorneys intercepted allegedly in violation of FISA. The court grants summary judgment against the government defendants for violating FISA, and the state secrets privilege was not shown to apply, at least without a warrant. Al-Haramain Islamic Foundation, Inc. v. Obama, 06-cv-01791-VRW (N.D. Cal. March 31, 2010). See discussion on www.eff.org, and its news update: Court Rejects Government’s Executive Power Claims and Rules That Warrantless Wiretapping Violated Law:

The government’s overreaching claim of unbridled executive power finally backfired today in the Al-Haramain case. As the court wrote in its order, “Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the SSP [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive branch abuses of surveillance authority.”

The court, although noting the government’s “impressive display of argumentative acrobatics,” flatly rejected this theory. “Defendants could readily have availed themselves of the court’s processes to present a single, case-dispositive item of evidence at one of a number of stages of this multi-year ligitation: a FISA warrant. They never did so.” Therefore, “for purposes of this litigation, there was no such warrant for the electronic surveillance of any of plaintiffs,” and the surveillance therefore violated FISA.

Defendant was stopped for a traffic offense and was making furtive movements. When he got out, he said that he was being shot at, and that gave probable cause to search his car. United States v. Synkiew, 2010 U.S. Dist. LEXIS 30082 (D. Minn. March 8, 2010).*

Defendant was stopped, and a gun was seen in the front seat. It was seized. In the car was a backpack defendant carried to the car, and in it was a handgun. The handgun was lawfully seized by a search incident. United States v. Tipton, 2009 U.S. Dist. LEXIS 126303 (E.D. Tenn. November 25, 2009).*

Reform ECPA

On the website Digital Due Process is a call to reform ECPA, the Electronic Communications Privacy Act. ECPA was passed in 1986, and technology has surpassed it:

Technology has advanced dramatically since 1986, and ECPA has been outpaced. The statute has not undergone a significant revision since it was enacted in 1986–light years ago in Internet time.

As a result, ECPA is a patchwork of confusing standards that have been interpreted inconsistently by the courts, creating uncertainty for both service providers and law enforcement agencies. ECPA can no longer be applied in a clear and consistent way, and, consequently, the vast amount of personal information generated by today’s digital communication services may no longer be adequately protected. At the same time, ECPA must be flexible enough to allow law enforcement agencies and services providers to work effectively together to combat increasingly sophisticated cyber-criminals or sexual predators.

The time for an update to the ECPA is now.

“Restore the Fourth Amendment”

See the blog Restore the Fourth Amendment:

This blog is dedicated to restoring the Fourth Amendment, which was destroyed in a joint action by George W. Bush and the Democratic Congress in the summer of 2008 by means of the odious FISA amendments bill.

How about the Supreme Court in general since Burger was appointed Chief? The erosion of the Fourth Amendment is more like the creation of the Grand Canyon, not just something that happened in 2008 because of FISA. Stated another way: FISA is a symptom, not the disease.

Defendant did not validly consent to a search of his car, and an inventory search of the car was not justified either. United States v. Minor, 2010 U.S. Dist. LEXIS 29506 (D. Nev. March 11, 2010)*:

After review, the Court finds that the relevant factors indicate that Minor did not voluntarily consent to a search of his vehicle. He was in custody, not given Miranda warnings, not told he had the right to refuse consent, not given a written waiver, and informed that the vehicle would be searched for inventory purposes prior to consent. Accordingly, the Government has not met its burden to show the consent was voluntary. Because consent was not voluntarily given, it is not necessary to address the issue of whether the search exceeded its permissible scope.

. . .

Here, the only potentially viable circumstance [for inventory], as specified by LVMPD’s policy, is that “[i]f there is not a licensed driver in the vehicle and it is not legally parked” impoundment is appropriate. See Government’s Exhibit 4 presented at the evidentiary hearing. This language “limits the discretion of the officer” to ensure that an impoundment/inventory search is not a guise for a general exploratory search. Government’s Exhibit 2 presented at the evidentiary hearing. The language also dictates which party bears the burden to establish the legality of an impound and inventory search. It is the government’s burden to demonstrate that “there is not a licensed driver in the vehicle.” It is not a defendant’s burden to demonstrate that there was a licensed driver in the vehicle. Additionally, the government must establish that the vehicle was parked illegally. There is no credible dispute regarding whether the vehicle was parked illegally upon being stopped–it was. The initial question is whether the officers complied with LVMPD’s written requirement to determine whether there was a licensed driver in the vehicle prior to the impound. If not, the impound was inappropriate and the inquiry ends.

IAC claim under 2255 failed because defendant did not show how the motion to suppress that was not filed had merit. Stein v. United States, 2010 U.S. Dist. LEXIS 29607 (S.D. Ill. March 29, 2010).*

When claimant’s vehicle tag was run, it was not in the system, so the stop was valid. While none of the factors mentioned by the officer alone were sufficient, together they were. United States v. $85,688.00 in United Sates Currency, 2010 U.S. Dist. LEXIS 29422 (D. Utah March 25, 2010).*

Officers had probable cause to arrest plaintiff when she refused to sign a notice of infraction for speeding in a school zone and she became disorderly. The officers Tasered plaintiff, but the pain was only an intermediate level, and it was not unreasonable under the circumstances, even though plaintiff was seven months pregnant. Her refusal to get out of the car was a threat to the officers. On the totality, it was not unreasonable. And, she was warned they would use the Taser if she did not comply. Brooks v. City of Seattle, 08-35526 (9th Cir. March 26, 2010):

It would also be incorrect to say Brooks posed no threat to officers. While she might have been less of a threat because her force so far had been directed solely at immobilizing herself, a suspect who repeatedly refuses to comply with instructions or leave her car escalates the risk involved for officers unable to predict what type of noncompliance might come next. A contemporaneous statement by Officer Jones confirms this fear. That Brooks remained in her car, resisting even the pain compliance hold the Officers first attempted, also reveals that she was not under their control. Finally, the Washington legislature’s action in making obstructing an officer a gross misdemeanor for which custodial arrest is appropriate suggests that Brooks posed the sort of threat that it was appropriate to remove from the streets. See Wash. Rev. Code §§ 9A.76.020(3), 10.31.100. Therefore, Brooks may not have posed a great threat, she did pose some threat by virtue of her continued non-compliance, which weighs against finding the less-than-intermediate force excessive.

. . .

In conclusion, then, this case presents a less-than intermediate use of force, prefaced by warnings and other attempts to obtain compliance, against a suspect accused of a minor crime, but actively resisting arrest, out of police control, and posing some slight threat to officers. In this situation, we find, assuming all the facts in Brooks’s favor, that the Officers’ behavior did not amount to a constitutional violation.

The dissent is more to the point: “Nor does the majority point to any authority supporting its off-the-wall theory.”

Defendant locked his live-in girlfriend out of the house during an argument, but she had her key. When the police arrived because of the domestic disturbance, they could rely on her claim of authority to enter because she had a key. Baker v. State, 2010 WY 6, 223 P.3d 542 (2010)*:

[*P13] Here, the facts known to the officers at the time of the search support the conclusion that Merck had the authority to consent to a search of the residence. Merck reported a domestic disturbance from her home at the hands of her live-in boyfriend. She expected her boyfriend (Baker) to not answer the door, and told the officers that they could go inside the home, and she unlocked the back door with her own key from her personal keychain. And although a “no trespassing” sign was posted on the property, Merck’s consent stands.

The DUI checkpoint in this case was validly set up. Defendant approached, and the officers smelled marijuana and saw furtive movements as they approached. A frisk based on the furtive movement produced a gun. United States v. Brock, 2010 U.S. Dist. LEXIS 4951 (N.D. Ind. January 22, 2010).*

KY reiterates that Ornelas de novo review of probable cause is the standard of review, and the trial court’s finding that the totality of the circumstances showed probable cause was correct and supported by the evidence, specifically the comparative analysis of the electrical usage of the defendant’s house and houses in the neighborhood. Commonwealth v. Pride, 302 S.W.3d 43 (Ky. 2010).*

A typographical error on the county road name (road 151 v. road 121) was cured by the picture attached to the SW affidavit and the officer’s testimony that they discovered the error and searched the correct property. United States v. Young, 2009 U.S. Dist. LEXIS 104614 (D. Minn. October 15, 2009).

Defendant who was called out by name for questioning by the police was seized under the totality of circumstances. United States v. Crandell, 668 F. Supp. 2d 635 (D. N.J. 2009), on remand from United States v. Crandell, 554 F.3d 79 (3d Cir. 2009):

The facts in Drayton differ significantly from the facts in this case. One critical difference lies in the fact that in Drayton, the police officers were dressed in plain clothes and intended to conduct a random drug interdiction search. The officers informed the defendants in Drayton of their objective.

In contrast, here, the officers received an anonymous tip about a black male, with dreadlocks and blonde tips, carrying a gun, which led them to search, specifically, for Defendant Crandell. Defendant was approached by three uniformed officers. Officer Valez told Crandell that he had “received information that [Crandell] might have a weapon on [him]” and that “[he] wanted to give [Defendant] a pat down for [the officers’] protection.” (Tr. 44:3-8.) He then stated that Crandell “was free to leave at any time.” (Id.)

There is a notable difference between an encounter where a defendant is among a group of people to whom the police are addressing questions, in furtherance of a random drug interdiction effort; and here, where Crandell was sought out by name by a group of officers, who told him they suspected him of possessing a weapon and wished to pat him down.

A security sweep of a building is not per se invalid because there was an arrest outside. United States v. Guerrero, 669 F. Supp. 2d 417 (S.D. N.Y. 2009).*

Defense counsel was not ineffective for not moving to suppress a search of defendant’s stuff in prison since it would never win. United States v. Owens, 2009 U.S. Dist. LEXIS 104422 (W.D. La. October 19, 2009).*

Informant was corroborated by a controlled buy. There was reasonable suspicion at the time of the stop. United States v. Perez, 2009 U.S. Dist. LEXIS 104364 (D. R.I. October 19, 2009).*

Drug dog was a de minimus intrusion where the dog arrived just as the paperwork on the traffic offense was completed. United States v. Brooks, 2009 U.S. Dist. LEXIS 104892 (S.D. Ga. April 23, 2009).*

Impoundment of defendant’s moped on his custodial arrest was reasonable although it was parked on private property. United States v. Cauthen, 669 F. Supp. 2d 629 (M.D. N.C. 2009).*

Defendants’ continued stop was reasonable where they were going in the wrong direction from their stated route and they were inconsistent in their travel plans. United States v. Cruz, 2009 U.S. Dist. LEXIS 105283 (S.D. Miss. October 21, 2009)*:

Courts have established that mere uneasy feelings on the part of the officer or inconsistent stories between a driver and passenger cannot, standing alone, provide reasonable suspicion to extend an otherwise lawful detention. Cavitt, 550 F.3d at 437; Estrada, 459 F.3d at 631. However, the facts previously stated, considered in conjunction with the officers’ narcotics interdiction training, on-the-job experience consisting of over 100 interdiction traffic stops and knowledge that Interstate 20 between Meridian, Mississippi, and Atlanta, Georgia, is a common drug-trafficking route, would create in the mind of a reasonable police officer and in fact did create for Officer Hill, reasonable suspicion for further inquiry.

The government did not need to obtain a judicially authorized warrant to have a CI get into defendant’s car to make a controlled buy. United States v. Tate, 2009 U.S. Dist. LEXIS 104968 (E.D. Tenn. October 7, 2009)* (this issue did not justify the time the court spent on it, but it is a thorough discussion if anyone is interested).

The use of peer-to-peer (P2P) software on defendant’s computer and opening that computer to the world was a waiver of the expectation of privacy in it. The fact defendant did not technologically know what he was doing is still a waiver. Also, the government’s use of sophisticated software to search the computer for child pornography did not make the search unreasonable. United States v. Borowy, 595 F.3d 1045 (9th Cir. 2010):

Under Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), government conduct qualifies as a search only if it violates a reasonable expectation of privacy. Whether Agent Mitchell engaged in an unconstitutional search and seizure is largely controlled by United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008), cert. denied, 129 S. Ct. 2037, 173 L. Ed. 2d 1122 (2009), which held that the defendant’s expectation of privacy in his personal computer could not “survive [his] decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program.” This result is consistent with that of other circuits that have considered the issue. See United States v. Stults, 575 F.3d 834, 842-43 (8th Cir. 2009) (citing Ganoe), petition for cert. filed 78 U.S.L.W. 3438 (U.S. Dec. 11, 2009) (No. 09-8153); United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008).

Borowy argues that his case is distinguishable from Ganoe because of his ineffectual effort to prevent LimeWire from sharing his files. However, as in Ganoe, “[t]he crux of [Borowy’s] argument is that he simply did not know that others would be able to access files stored on his own computer” and that, although Borowy intended to render the files private, his “technical savvy” failed him. Ganoe, 538 F.3d at 1127. Borowy, like Ganoe, was clearly aware that LimeWire was a file-sharing program that would allow the public at large to access files in his shared folder unless he took steps to avoid it. See id.; see also United States v. Heckenkamp, 482 F.3d 1142, 1147 (9th Cir. 2007 ) (“[P]rivacy expectations may be reduced if the user is advised that information transmitted through the network is not confidential and that [others] may monitor communications transmitted by the user.”). Despite his efforts, Borowy’s files were still entirely exposed to public view; anyone with access to LimeWire could download and view his files without hindrance. Borowy’s subjective intention not to share his files did not create an objectively reasonable expectation of privacy in the face of such widespread public access. See Ganoe, 538 F.3d at 1127; United States v. King, 509 F.3d 1338, 1341-42 (11th Cir. 2007) (per curiam). Because Borowy lacked a reasonable expectation of privacy in the shared files, Agent Mitchell’s use of a keyword search to locate these files did not violate the Fourth Amendment.

Borowy also argues that the use of a “forensic software program” that is unavailable to the general public to confirm that the files contained child pornography rendered Agent Mitchell’s conduct an unlawful Fourth Amendment search. We disagree. Borowy had already exposed the entirety of the contents of his files to the public, negating any reasonable expectation of privacy in those files. Cf. California v. Ciraolo, 476 U.S. 207, 213-14, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (finding the use of an aircraft to observe marijuana plants was not a Fourth Amendment search as it only revealed information accessible to any member of the public flying in the airspace); cf. also Kyllo v. United States, 533 U.S. 27, 40, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ ….”) (emphasis added). Moreover, the hash-mark analysis appears to disclose only whether the files in the list that Agent Mitchell’s keyword search returned were known child pornography. See United States v. Jacobsen, 466 U.S. 109, 122-26, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (“canine sniff” of luggage left in public place is not a Fourth Amendment search). In this context, the hash-mark analysis functioned simply as a sorting mechanism to prevent the government from having to sift, one by one, through Borowy’s already publicly exposed files.

Susan Brenner on CYB3RCRIM3, published Kyllo and “A Forensic Software Program” poses this question: Is use of sophisticated software to search a computer a Kyllo-type search?

She is discussing United States v. Borowy, 595 F.3d 1045 (9th Cir. 2010) (posted here). Apparently Kyllo was belatedly injected into the case, and possibly not raised in the motion to suppress. The Ninth Circuit did not foreclose the possibility Kyllo would apply, not just here.

At one level, a Kyllo argument seems a viable option in circumstances like those at issue in the Borowy case because they are analogous to the circumstances at issue in Kyllo, at least in one respect.

In both instances, law enforcement captures information that is being broadcast from inside a home (the most sacrosanct “place” for 4th Amendment purposes). The Kyllo Court found, correctly IMHO, that the fact the officer was outside the home when he captured the heat signatures emanating from Kyllo’s home did not prevent his actions from constituting a 4th Amendment search. Any other result would take us back to the bad old days when Olmstead was the law. (As I’ve noted in other posts, in Olmstead v. U.S. the Supreme Court held it wasn’t a search for federal agents to use a tap on a phone line outside Olmstead’s home to listen in on his phone calls. The Supreme Court reversed Olmstead in Katz.)

I’m not, however, sure a viable Kyllo argument is possible when it’s directed at law enforcement’s using P2P software to access files someone has made available for sharing online. Like other defendants who’ve been caught because they were sharing child porn via P2P networks, Borowy claimed he didn’t realize he was sharing files because he thought he’d disabled the file-sharing feature.

Plaintiff’s strip search for a probation violation, without reasonable suspicion, survives summary judgment. Norland v. Oregon, 2009 U.S. Dist. LEXIS 93470 (D. Ore. June 25, 2009).*

“[T]he district court properly concluded that probable cause and exigent circumstances justified the warrantless intrusion into Thomas’s residence. The officers reasonably believed that narcotics were present and might be destroyed before a warrant could be secured, and their intrusion was limited and directly proportional to the exigency of this case. Accordingly, we conclude that probable cause and exigent circumstances permitted the officers to enter the house.” United States v. Thomas, 348 Fed. Appx. 497 (11th Cir. 2009) (unpublished).*

Court credits officers that defendant dropped a substantial quantity of drugs in a bag fleeing from a traffic stop rather than the bag being left in the car. United States v. Aquino, 2009 U.S. Dist. LEXIS 93660 (S.D. N.Y. October 7, 2009).*

Where “the evidence discovered independent of the alleged due process and Fourth Amendment violations would be sufficient to sustain [the conviction], success on these claims in his § 1983 suit would not necessarily invalidate that conviction. We therefore hold that Heck does not bar [his] due process or Fourth Amendment claims.” A blanket Fourth Amendment exception to Heck is not [yet] appropriate. Pearson v. Weischedel, 349 Fed. Appx. 343 (10th Cir. 2009) (unpublished).*

The search warrant for defendant’s DNA was issued with probable cause to believe he might be a perpetrator of the crime under investigation. When the police arrived at his house, they could smell marijuana. After the DNA sample had been taken, the officers went for a search warrant for the premises. United States v. Spain, 2009 U.S. Dist. LEXIS 96513 (D. Neb. October 16, 2009).*

Officers had reasonable suspicion that the occupants of a boat were involved, at the minimum, in lobster smuggling. They got to the boat as it was being removed from the water, and the persons on the boat were excessively nervous. The defendant conceded probable cause for the stop, and the mobility of the boat made it subject to search. The officer looked in the cabin of the boat as a protective sweep, and 13 illegal aliens were found. United States v. Caraballo, 595 F.3d 1214 (11th Cir. 2010):

When taken in concert, these circumstances yielded a reasonable ground to believe that the defendant and others had unlawfully obtained lobsters and violated the Florida fisheries laws. We add that the exigency of the situation — Caraballo was about to leave with the boat and any poached lobsters or fish would be easy to dispose of — made it impossible to seek a warrant in due course. See Carroll v. United States, 267 U.S. 132, 153, 45 S. Ct. 280, 69 L. Ed. 543, T.D. 3686 (1925) (stating that in conducting “a search of a ship, motor boat, wagon, or automobile … it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought”); see also California v. Acevedo, 500 U.S. 565, 569, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991) (citing Carroll and explaining “[c]ontemporaneously with the adoption of the Fourth Amendment, the First Congress, and, later, the Second and Fourth Congresses, distinguished between the need for a warrant to search for contraband concealed in a dwelling house or similar place and the need for a warrant to search for contraband concealed in a movable vessel.”) (internal quotation marks and citation omitted); United States v. Bain, 736 F.2d 1480, 1488 (11th Cir. 1984) (“[T]he mobility of the vessel was an exigent circumstance justifying an immediate search.”).

Third, and finally, once on board the vessel, Officer Andollo lawfully conducted a protective sweep that included opening the cabin door to ensure that there were no additional persons on board who could cause him harm. In Maryland v. Buie, the Supreme Court held that a protective sweep may be undertaken lawfully pursuant to an in-house arrest where the officer “possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” 494 U.S. 325, 337, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). “A ‘protective sweep’ is a quick and limited search of premises …. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Id. at 327; see also United States v. Miller, 430 F.3d 93, 99 (2d Cir. 2005) (agreeing with the First, Seventh, Fifth, Sixth, one panel of the Ninth, and D.C. Circuits that protective searches may be undertaken even without an arrest warrant); see also United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005) (“We hold … that police who have lawfully entered a residence possess the same right to conduct a protective sweep whether an arrest warrant, a search warrant, or the existence of exigent circumstances prompts their entry.”); Leaf v. Shelnutt, 400 F.3d 1070, 1087-88 (7th Cir. 2005) (“[I]t was not necessary for the officers to have made an arrest in order for their search of the apartment to be justified; the only question is whether the search was objectively reasonable.”); United States v. Gould, 364 F.3d 578, 584 (5th Cir. 2004) (en banc); United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001) (“[T]he principle enunciated in Buie with regard to officers making an arrest — that the police may conduct a limited protective sweep to ensure the safety of those officers — applies with equal force to an officer left behind to secure the premises while a warrant to search those premises is obtained.”); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993); United States v. Patrick, 959 F.2d 991, 996-97, 294 U.S. App. D.C. 393 (D.C. Cir. 1992) abrogated on other grounds by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); but see United States v. Torres-Castro, 470 F.3d 992, 997 (10th Cir. 2006) (recognizing that, unlike the Tenth Circuit, “a majority of circuits have extended the protective sweep doctrine to cases where officers possess a reasonable suspicion that their safety is at risk, even in the absence of an arrest”).

A 2255 petitioner litigated his motion to suppress in the original criminal case, and he sought to reopen it for post-conviction. The issue cannot be relitigated, and there was sufficient evidence without the product of the search to convict. Stevenson v. United States, 594 F. Supp. 2d 695 (N.D. W.Va. 2009).*

“‘[A]ny/all drugs, contraban[d] or items of evidence connected to but not limited to the (scales, pipes, baggies, cash, weapons, documents, etc.) use, [sale], and/or storage of these type items’ [is not] so lacking in specificity as to cause the warrant to be constitutionally defective.” Ex parte Jenkins, 26 So. 3d 464 (Ala. 2009), aff’g State v. Jenkins, 26 So. 3d 458 (Ala. Crim. App. 2007).

Defendant’s stop was justified by crossing the centerline by a half a car width, at least by reasonable suspicion. Bracken v. State, 282 S.W.3d 94 (Tex. App. — Ft. Worth 2009).*

Four men were arrested trying to break into defendant’s property. They claimed they were looking for marijuana that they believed would be there. The police used that information to get a search warrant, and five pounds of marijuana were found. The fact they were first time CIs did not make them unreliable. [Well, every CI has to start somewhere.] State v. Jenkins, 26 So. 3d 458 (Ala. Crim. App. 2007), released for publication January 4, 2010, affirmed by Ex parte Jenkins, 26 So. 3d 464 (Ala., 2009).

Defendant was stopped for pulling out of a convenience store without headlights at 3 a.m. The officer observed a baggy of probable meth when he was talking to the defendant getting his driver’s license. The officer called for backup. The officer had probable cause for a search of the car without being able to specifically identify what was in the baggy. United States v. Garcia, 2010 U.S. Dist. LEXIS 8689 (D. Nev. January 5, 2010)*:

Here, at the initial point of contact with Garcia, Officer Sutton observed a clear baggy containing a crystalline substance. Based on his experience and training, he immediately identified the substance as a possible controlled substance–methamphetamine. Garcia does not dispute the presence or location of the methamphetamine, but argues that the particles were so small that it was impossible for Officer Sutton to ascertain that they were, in fact, methamphetamine. However, the inability to immediately identify the substance as methamphetamine is not dispositive. “[I]t is settled law that officers may “‘draw on their own experience about cumulative information available to them that might well elude an untrained person.'” Hart v. Parks, 450 F.3d 1059, 1067 (9th Cir. 2006) (citing United States v. Hernandez, 313 F.3d 1206, 1210 (9th Cir. 2002) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002))). The court finds that, a reasonable person with Officer Sutton’s experience and training would have concluded, as Officer Sutton did, that the vehicle contained contraband or evidence of criminal activity. Thus, under the automobile exception to the Fourth Amendment’s general warrant requirement, the police were authorized to search the vehicle. The evidence obtained as a result of the vehicle search is admissible. 7

7 The court finds separately that, standing alone, the immediately recognizable drug contraband supplied the necessary probable cause to conduct the warrantless search.