“The courts have seldom applied the exclusionary rule in administrative cases, even ones in which severe penalties are imposed based on the admission of illegally seized evidence. In administrative disciplinary proceedings, a balancing test must be applied, and consideration must be given to the social consequences of applying the exclusionary rule and to the effect thereof on the integrity of the judicial process. The court conducted a balancing test and determined that there were insufficient grounds for extending the exclusionary rule to the disciplinary proceeding because of the serious dangers arising from the employee’s drug use on the job and possession of a readily accessible firearm.” Department of Transportation v. State Personnel Bd., 178 Cal. App. 4th 568, 100 Cal. Rptr. 3d 516 (2d Dist. 2009).

The stop was reasonable, and defendant consented, despite the allegedly coercive circumstances. Many cases have involved more coercive situations than this. Even so, there was PC for the search. United States v. Rodriguez-Alejandro, 664 F. Supp. 2d 1320 (N.D. Ga. 2009).*

“We consider whether the Commonwealth, in a criminal case, may seek the production of records from a third party in advance of trial or an evidentiary hearing by issuing a subpoena duces tecum directly to the party under G. L. c. 277, § 68, or whether it must first obtain judicial approval, pursuant to Mass. R. Crim. P. 17(a)(2), 378 Mass. 885 (1979), as construed by Commonwealth v. Lampron, 441 Mass. 265, 268-271 (2004) (Lampron). We conclude that it must first obtain judicial approval.” There was no Fourth Amendment claim presented [not that it would work]. Commonwealth v. Odgren, 455 Mass. 171, 915 N.E.2d 215 (2009).

A state trooper’s hand gesture was sufficient to create a stop under the state constitution. Majaev v. State, 223 P.3d 629 (Alas. 2010):

The State’s argument focuses on the wrong question. The relevant inquiry is not whether Majaev would actually have faced criminal prosecution or punishment under AS 28.35.182, but rather whether a reasonable person in Majaev’s position would have believed that he was required to respond to the trooper’s gesture in order to comply with the law. A reasonable person in Majaev’s position would assume that he was not free to leave because ignoring Trooper Bordner’s signal would be a violation of AS 28.35.182(b) and therefore could have subjected such a person to criminal sanction. Statutes like AS 28.35.182 are intended to influence behavior; thus this coercive effect must be considered within our analysis of whether Majaev was seized under the Waring test.

“[T]he Court finds that Listman’s Fourth Amendment challenge fails as a matter of law. Because Listman raises no issues of fact in support of his motion, only conclusory legal objections, an evidentiary hearing is not required. See U.S. v. Losing, 539 F.2d 1174, 1177 (8th Cir. 1976) (‘Evidentiary hearings need not be set as a matter of course, but if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, an evidentiary hearing is required.’).” United States v. Listman, 2010 U.S. Dist. LEXIS 5239 (E.D. Ark. January 12, 2010).*

Ross governs the search of defendant’s car because it was with probable cause; it was not a search incident barred by Gant. United States v. Armstrong, 2010 U.S. Dist. LEXIS 4913 (E.D. Tex. January 11, 2010).*

Partially obscured license plate was probable cause for defendant’s stop. State v. Klinghammer, 2010 Iowa App. LEXIS 42 (January 22, 2010).*

The driver’s consent to search was reasonably interpreted by the officer to include all the bags in the car. The passenger’s bags were thus subject to the consent. State v. Harding, 2010 UT App 8, 223 P.3d 1148, 648 Utah Adv. Rep. 4 (2010).*

Based on video of credit card transactions, the police had reasonable suspicion to stop a car seen in the videos. State v. Figueroa, 2010 Ohio 189, 2010 Ohio App. LEXIS 164 (9th Dist. January 25, 2010).*

A blood test in a DUI–death case could be performed with probable cause, even if defendant were unconscious. Here, the suppression hearing never established whether there was PC for the blood draw, and the case is remanded for reconsideration. The fact of a death is not enough. Helton v. Commonwealth, 299 S.W.3d 555 (Ky. 2009), Released for Publication January 21, 2010.

Search warrant in a cigarette tax avoidance case covered an 8 year period, and it was not unconstitutionally overbroad; it “limits the search to items tied to crimes charged.” United States v. Wilbur, 2010 U.S. Dist. LEXIS 9868 (W.D. Wash. February 4, 2010).*

Defendant’s consent to enter his home in a bank robbery case was valid, relying in part on the fact he had been arrested three times before as showing knowledge of his rights. The officers also had reason to believe he was armed, so the search inside the house of a bag was proper under Terry. United States v. Wilkerson, 2009 U.S. Dist. LEXIS 124649 (E.D. Pa. February 1, 2009).*

The findings at defendant’s sentencing of his history of violence and drug abuse justified imposition of a condition of probation that defendant be subjected to searches at any time. In the procedural posture of this case, however, defendant waived appellate review of the issue of who could conduct that such (by any LEO, not just a PO). Twogood v. State, 223 P.3d 641 (Alas. App. 2010).*

“Curtilage” in a search warrant is not vague. United States v. Thomas, 2009 U.S. Dist. LEXIS 120653 (M.D. N.C. December 28, 2009):

. . . Thomas argues that the phrase “curtilage” is conclusory and imbued with legal, not factual, meaning. Thus, he concludes, the magistrate was unable to exercise his or her independent judgment in determining whether to grant the application for the warrant.

Thomas’s argument is unpersuasive. While having legal meaning, the term “curtilage” also has a common, factual definition. Webster’s Third New International Dictionary defines curtilage as “a yard, courtyard, or other place of ground included within a fence surrounding a dwelling house.” Webster’s Third New Int’l Dictionary at 558 (1986 Ed.) Further, Black’s Law Dictionary defines it as “[t]he land or yard adjoining a house, usu. protected by an enclosure.” Black’s Law Dictionary at 441 (9th Ed. 2009). Thus, the everyday, common meaning is sufficiently co-extensive with any “legal” meaning. Further, to the extent a phrase may be more commonly known to those familiar with and having some training in law, a magistrate is generally such a person.

“In the instant case, the trial court erred in denying Fuentes’s motion to suppress, as Officer Keirnan did not have a reasonable suspicion of criminal activity when she conducted the investigatory stop. The facts known to Officer Keirnan at the time of the stop were not indicative of criminal activity.” The informant’s information was not corroborated. Fuentes v. State, 24 So. 3d 1231 (Fla. App. 4th DCA 2009).*

The stop was invalid for lack of probable cause. The search for a weapon was not justified either, even if the stop was valid. United States v. Ferrell, 2009 U.S. Dist. LEXIS 120841 (E.D. Pa. December 29, 2009).*

Restaurant manager charged with video voyeurism for surreptitiously recording women in the bathroom based on employees violating rules and looking at the TV in the restaurant kitchen discovering one tape. They turned over that and other tapes to the police who viewed them without a warrant. The warrantless viewing of the videotapes violated the defendant’s reasonable expectation of privacy under Oregon law. State v. Luman, 220 Ore. App. 617 (2008), but reversed State v. Luman, 347 Ore. 487, 223 P.3d 1041 (2009).

Defendant passenger in a car driven by a driver suspected to be under the influence of meth was detained when his driver’s license was put in the police car. He ultimately had his backpack searched, and it was not “unattenuated” from the initial detention. State v. Ayles, 220 Ore. App. 606 (2008).*

Virgin Islands police had a tip that illegal aliens would be boarding a small private plane at a particular airport for ferrying them around. Surveilling the runway, the officer saw people boarding the plane while it was idling away from any buildings. He requested the tower to deny take off, which it did. When the plane returned to where it was idling, the officer approached and asked the pilot to step out of the plane. An occupant admitted she was an illegal. The stop was justified. United States v. Cuevas-Reyes, 49 V.I. 746 (2008).

A closed container must announce to the world its contents to be “plain view,” not just to those with specialized knowledge. Thus, a tank with telltale blue residue from anhydrous ammonia did not announce its contents. State v. Heckathorne, 218 Ore. App. 283, 179 P.3d 693 (2008), but reversed State v. Heckathorne, 347 Ore. 474, 223 P.3d 1034 (2009):

This review of what we might call “content announcement” cases compels the conclusion that, although the Supreme Court and this court have recognized the theoretical possibility that an opaque container can “announce[]” its contents “to the world,” Walker, 173 Ore. App. at 50, such containers are extremely rare. The videotape that was literally labeled with its contents did so. Ready, 148 Ore. App. at 156. We held that a particular type of glass vial did so in State v. English, 164 Ore. App. 580, 584, 994 P.2d 165 (1999), but that conclusion has been disavowed. Stock, 209 Ore. App. at 11 n 1. Although we do not now categorically foreclose the possibility that an unlabeled opaque closed container might announce its contents, we conclude that such a container must make that announcement unequivocally and “to the world,” and not merely to those who have special expertise derived from training or personal experience. Id. at 12 (Whether a container announces its contents is an inquiry “independent of *** the subjective knowledge and experience of the officer who found it.”).

Defendant’s motion to suppress trash search was denied. Defendant apparently admitted that it had to be. United States v. Stephens, 2008 U.S. Dist. LEXIS 14554 (N.D. Ind. February 26, 2008)* (Comment: This may have been a motion to suppress that the client insisted on filing despite the fact the law did not support it).

Plaintiffs prevailed in their motion to suppress and filed a civil action against the officers. The case was time barred under Wallace v. Kato because it was brought more than three years after the search and arrest. A plaintiff cannot wait until winning the criminal case to bring the suit. Barnhill v. Strong, 2008 U.S. Dist. LEXIS 14463 (D. Md. February 25, 2008)*:

The Court also made clear that regardless of the pendency of criminal proceedings, the tort of false imprisonment does not end when “the State drop[s] the charges against [the defendant],” but rather when “legal process [is] initiated.” Id. Accordingly, the statute of limitations begins to run from the date of the initiation of legal process. Id. Wallace clarified that the Heck deferred accrual rule “is called into play only when there exists ‘a conviction or sentence that has not been invalidated,’ that is to say, an ‘outstanding criminal judgment.'” Id. at 1097-98 (quoting Heck, 512 U.S. at 487). In short, the Court held that Heck only delays accrual when an actual conviction has been obtained by the state and that conviction would be undermined by the civil action. Id. at 1098 (“What petitioner seeks, in other words, is the adoption of a principle that goes well beyond Heck: that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside. … We are not disposed to embrace this bizarre extension of Heck.”) (emphasis in original). The Court also dismissed the possibility that a conviction would toll the statute of limitations. Id. at 1099-1100 (dismissing the dissent’s argument for equitable tolling).

Blue discoloration on an ammonia tank announced its contents, and a warrant was not needed to test it. State v. Heckathorne, 347 Ore. 474, 223 P.3d 1034 (2009), revg State v. Heckathorne, 218 Ore. App. 283, 179 P.3d 693 (2008):

The same must be said with respect to that court’s ruling on the merits. The Court of Appeals concentrated its attention on the meaning of the blue discoloration on the fittings of the cylinder: Did that discoloration, or did it not, fairly give rise to the inference that the cylinder contained anhydrous ammonia? In our view, that issue can be argued either way, and it has been. We express no opinion on it, however, because the record in this case contained other, decisive evidence.

As noted above, the police opened and vented some of the contents of the cylinder. Defendants do not in this court challenge either the police possession of the cylinder or Studebaker’s venting of the cylinder — they challenge only the later testing of the cylinder to confirm the contents. However, according to Bettencourt, Studebaker reported a strong odor of ammonia when he vented the container. In other words, when the cylinder was vented, the contents of the cylinder, that is, the ammonia, became discernable to Studebaker. And, because the ammonia was exposed and discernable (through the sense of smell), defendants no longer had a privacy interest in the contents of the cylinder. Thus, as in Owens, the use of the Drager device to perform a confirmatory test on the contents of the cylinder did not infringe any privacy interest protected by the Oregon Constitution. Therefore, the trial court did not err in denying defendants’ motion to suppress evidence of the contents of the cylinder. The Court of Appeals erred in ruling to the contrary.

For the same reasons, once the ammonia was plainly discernable, Studebaker’s testing of the contents of the cylinder did not violate defendants’ Fourth Amendment rights. See United States v. Jacobsen, 466 US 109, 123-25, 104 S Ct 1652, 80 L Ed 2d 85 (1984) (field test of substance for the presence of cocaine was not unlawful search or seizure because test could reveal only whether substance was cocaine and thus could not compromise any legitimate privacy interest).

A search warrant was not needed to recreate a private search of videotapes that were viewed by them and turned over to the police. State v. Luman, 347 Ore. 487 (2009), revg State v. Luman, 220 Ore. App. 617 (2008):

In this case, defendant’s employees seized the videotape, viewed it, handed it over to the deputy, and told him exactly what was on it. (And, as noted, none of that private conduct violated defendant’s Article I, section 9, rights.) At that point, defendant no longer retained a protected possessory or privacy interest in the piece of evidence; those interests were destroyed by the private conduct. That is, defendant no longer had a right to privacy in the videotape. Because the deputy’s act in viewing the videotape invaded neither a possessory interest nor a right to privacy in the images on the videotape that was protected by Article I, section 9, of the Oregon Constitution, that act was not a search and no warrant was required.

A vehicle that was already impounded did not need a search warrant to be searched after the officer discovered a probable altered gas tank and used a fiber optic scope to look inside it, finding marijuana. Lopez v. State, 2009 Ark. App. 750, 2009 Ark. App. LEXIS 958 (November 11, 2009).*

CI of pseudo purchases was corroborated by checking area pharmacies for purchases and checking defendant’s criminal history, which found drug cases. State v. Gipson, 2009 Ohio 6234, 2009 Ohio App. LEXIS 5237 (3d Dist. November 30, 2009).*

Defendant’s stop was with a factual basis for not having a temporary vehicle license, despite the Attorney General’s concession that the stop was invalid and the exclusionary rule applied. People v. Dotson, 179 Cal. App. 4th 1045, 101 Cal. Rptr. 3d 897 (3d Dist. 2009).*

Defendant’s stop was without RS. There was no criminal activity apparently afoot, and there was no testimony before the trial court that this was a high crime area. The officer just concluded that defendant did not belong there. Derichsweiler v. State, 301 S.W.3d 803 (Tex. App. — Ft. Worth 2009).*

Only a well founded suspicion is required for issuance of a bench warrant for arrest of a probationer. Here, the officer had obtained defendant’s ID and let him go, finding out shortly thereafter there was a bench warrant, so he apprehended the defendant and a search incident produced drugs. State v. Erickson, 168 Wn. 2d 41 (2010):

Once a person has been convicted of a crime, that person is subject to the court’s authority. That authority includes the power to supervise an offender conditionally released. Neither the Fourth Amendment nor article I, section 7 of the state constitution requires the court to make a finding of probable cause at every step of the proceeding. We hold that once a person has been convicted of a felony and is on conditional release for that offense, a bench warrant may be issued for his arrest without probable cause that he has violated the terms of his release. Instead, the court needs only a well-founded suspicion that a violation of the terms of the release has occurred before it may issue an arrest warrant. Here, one of the conditions of Erickson’s release was that he notify the court of any change of address. He did not do so and the returned summons provided the issuing judge with a well-founded suspicion that Erickson had violated that condition of his release. We affirm the Court of Appeals and Erickson’s conviction for possession of a controlled substance.

Defendant’s guilty plea three months before Gant waived the search incident issue for appeal. State v. Brandenburg, 153 Wn. App. 944, 223 P.3d 1259 (2009).*

During a traffic stop, the officer stuck his head 2″ in the car to conduct his own sniff, and that was a search. Caballes is distinguished because, although involving a dog, that sniff was of the exterior of the vehicle. The government relied on probable cause for the search, but it is clear that the probable cause did not exist until after the search. Therefore, its reliance on the automobile exception is unavailing. United States v. Montes-Ramos, 347 Fed. Appx. 383 (10th Cir. 2009) (unpublished):

The only basis we can see for concluding Rodriguez’s sniff was not a search is by analogy to cases involving canine sniffs. In Illinois v. Caballes, the Court held a canine sniff of the exterior of a vehicle during a lawful traffic stop “does not rise to the level of a constitutionally cognizable infringement.” 543 U.S. 405, 409 (2005). The Court explained:

The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

Id. at 410. We are attracted by the reasoning in Caballes; but it is significant that the dog sniff at issue there was conducted on the exterior of the car. While it revealed information about the car’s contents, the dog did not actually intrude into the car’s protected space. Moreover, because a drug dog is trained to alert only to the presence of drugs, its “search” will only disclose information about the presence of certain contraband; it will reveal nothing about other (presumably innocent) smells. Though farfetched, Rodriguez’s sniff could have revealed information about Montes-Ramos’ private, lawful activities–the perfume of a recently departed passenger, a recently consumed lunch, a wet dog–as well as illegal activities–contraband or perhaps a decomposing body.

We conclude a police officer’s intentional act of intruding a vehicle’s air space, even if by only a few inches, constitutes a search within the meaning of the Fourth Amendment. It would be different if Rodriguez had smelled marijuana prior to leaning into Montes-Ramos’ vehicle. Under the plain view doctrine, “a law enforcement officer [may] seize evidence of a crime, without violating the Fourth Amendment, if (1) the officer was lawfully in a position from which the object seized was in plain view, (2) the object’s incriminating character was immediately apparent … and (3) the officer had a lawful right of access to the object.” United States v. Angelos, 433 F.3d 738, 748 (10th Cir. 2006) (quotations omitted). The plain view doctrine is equally applicable to plain smells, such that no search occurs if a police officer detects an odor of illegal drugs, alcohol, chemicals or the like from a location in which he is entitled to be. See id. at 748 (“The plain smell doctrine … is simply a logical extension of the plain view doctrine ….”) (quotations omitted); United States v. Merryman, 630 F.2d 780, 784 (10th Cir. 1980) (“This Circuit has held that the smelling of marijuana by an experienced observer furnishes probable cause for the search.”); see also Kyllo, 533 U.S. at 43-44 (Stevens, J., dissenting) (“[A]romas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building.”). But Rodriguez did not smell marijuana prior to leaning his head into Montes-Ramos’ vehicle. Instead he was suspicious Montes-Ramos might be trafficking drugs and leaned his head in “[f]or assurance.” (R. Vol. III at 16.)

[Update: Also posted on Kansas Defenders blog.]

In the Bear Sterns fraud case, as to defendant Matthew Tannin, the trial judge ruled today that the search warrant to Google for e-mail did not comply with the warrants clause of the Fourth Amendment because it was too general. United States v. Cioffi, 668 F. Supp. 2d 385 (E.D. N.Y. 2009), Doc. 225. An important case on computer searches and extremely interesting reading (I got it free from PACER late this afternoon):

Document searches pose unique Fourth Amendment concerns. As the Supreme Court noted more than 30 years ago:

[T]here are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. … [R]esponsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.

Andresen, 427 U.S. at 482 n.11. The dawn of the Information Age has only heightened those concerns. The risk of exposing intimate (and innocent) correspondence to prying eyes is magnified because “[c]omputers … often contain significant intermingling of relevant documents with documents that the government has no probable cause to seize.” United States v. Vilar, 2007 WL 1075041, at *35 (S.D.N.Y. 2007) (citation and internal quotation marks omitted); see also United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 1005 (9th Cir. 2009) (“Seizure of … Google’s email servers to look for a few incriminating messages could jeopardize the privacy of millions.”). However, “it is precisely because computer files can by intermingled and encrypted that the computer is a useful criminal tool.” Vilar, 2007 WL 1075041, at *35.

Courts and commentators have wrestled with how best to balance privacy interests and legitimate law-enforcement concerns in the context of computer searches. One approach would require law-enforcement officials to specify a search protocol ex ante and to use, whenever possible, “key word searches … to distinguish files that fall within the scope of a warrant from files that fall outside the scope of the warrant.” Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 108 (1994). Another would require the creation of “firewalls” to prevent investigators and prosecutors from obtaining the results of a computer search until documents within the scope of the warrant had been segregated by a third party. The Ninth Circuit recently endorsed variants of both procedures, among others, to minimize the intrusiveness of computer searches. See Comprehensive Drug Testing, 579 F.3d at 1006 (“Segregation and redaction must be either done by specialized personnel or an independent third party. … The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.”). As Judge Karas noted in Vilar, however, the majority of courts to have considered the question have not required the government to specify its search protocol in advance. See 2007 WL 1075041, at 37-38 (citing cases); see also Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 572 (2005) (“[T]he [computer] forensics process is too contingent and unpredictable for judges to establish effective ex ante rules.”).

To date, the Second Circuit has not taken sides in the debate on the particularity required for computer searches. There is, however, one form of particularity whose absence the Second Circuit has unequivocally and unqualifiedly condemned: “[A]uthorization to search for ‘evidence of a crime,’ that is to say, any crime, is so broad as to constitute a general warrant.” George, 975 F.2d at 76. “[A] fortiori a warrant not limited in scope to any crime at all is … unconstitutionally broad.” Id. at 77. George represents not simply a majority view, but the unanimous view of courts across the nation.

This case, however, is not about search terms or firewalls. It is, rather, about the fundamental and venerable prohibition on general warrants. Since “it is obvious that a general warrant authorizing the seizure of evidence without mentioning a particular crime or criminal activity to which the evidence must relate is void under the Fourth Amendment,” “no reasonably well-trained officer could believe otherwise.” George, 975 F.2d at 77. Before Groh, an executing officer might reasonably (and correctly) believe that his or her knowledge of the probable-cause affidavit would, under Bianco, cure a facially overbroad warrant. But Groh has been on the books since 2004. Indeed, the Supreme Court believed no reasonable officer could question its holding even then. Since Groh was a civil case, the Court was not called upon to directly apply Leon’s good-faith exception; however, it did address – and reject – the defendant’s claim of qualified immunity, the doctrine upon which Leon was based:

Given that the particularity requirement is set forth in the text of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid. … [A]s we observed in [Leon], ‘a warrant may be so facially deficient – i.e., in failing to particularize the place to be searched or the things to be seized – that the executing officers cannot reasonably presume it to be valid.’ This is such a case.

540 U.S. at 564-65 (quoting Leon, 468 U.S. at 923).

IV

The government has also invoked the “inevitable discovery” doctrine, under which unlawfully seized evidence is not suppressed if “the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444 (1984). The Second Circuit has held that “[t]he exception requires the district court to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred.” United States v. Eng, 997 F.2d 987, 990 (2d Cir. 1993) (emphasis in original). The government does not — and could not — argue that the November 23rd Email would have been discovered by lawful means had the Warrant never been executed. Rather, it argues that the email could lawfully be obtained through another, more particularized warrant now that the Warrant has been invalidated. This distinction is dispositive because for purposes of the doctrine, timing is everything.

. . .

Even if I were to restrict the government to the facts set forth in the Affidavit, a more fundamental problem would remain. The “inevitable discovery” doctrine is essentially a rule of harmless error. See Nix, 467 U.S. at 443 n.3 (“The ultimate or inevitable discovery exception to the exclusionary rule is closely related in purpose to the harmless-error rule[.]”). No court has ever endorsed the view that it would allow the government to retroactively cure a Fourth Amendment violation, and it is easy to see why. The violation is not the discovery of incriminating evidence, but the invasion of the searchee’s privacy. Since such a violation is inherently irremediable, the exclusionary rule exists to deter violations in the first instance. See Elkins v. United States, 364 U.S. 206, 217 (1960) (“The [exclusionary] rule is calculated to prevent, not to repair. Its purpose is to deter–to compel respect for the constitutional guaranty in the only effectively available way–by removing the incentive to disregard it.”). It is one thing to say that there is no need to deter by suppressing evidence that would have been discovered regardless of unconstitutional conduct; it is quite another to allow the government a second chance to fix a problem that never should have arisen.

V

In concluding, I note that my observation in Cohan–that, in light of Groh, a facially invalid warrant cannot be salvaged unless a particularized affidavit is attached to the warrant and incorporated into the warrant by reference–was technically dicta since I found that the warrant there was sufficiently particular. See 628 F. Supp. 2d at 362. Nonetheless, I thought that this dicta was appropriate to alert the government that if it did not heed Groh’s holding in the future, it would risk the suppression of evidence that it wished to introduce at trial.

I have been the assigned judge on this case since its inception over a year ago. Cohan was issued this past June, two weeks before the Warrant was sought. The government was, therefore, on explicit notice that my understanding of the Supreme Court’s holding in Groh would undoubtedly oblige me strike down a facially invalid warrant in the absence of incorporation and attachment of the supporting affidavit.

CONCLUSION

Tannin’s motion to suppress is granted. The government is barred from introducing the November 23rd Email into evidence in its case-in-chief.

Newslinks: Judge Deals Huge Blow To Prosecution In Bear Stearns Hedge Fund Case on Business Insider; Tannin ‘Blow Up’ E-Mail Won’t Be Seen by Fraud Jury on Bloomberg.com; NYTimes.com: Judge in Bear Trial Deals Setback to Prosecutors.

The decision is criticized in Volokh Conspiracy as unnecessary because the government could have gotten the information by subpoena without risking an overbreadth challenge, or would it? What about standing?

Up until now, I would have thought that a person had no standing in his e-mail records held by the provider, here G-mail, under United States v. Miller (1976). I agree that one should have an expectation of privacy in his or her e-mail accounts.

Stopping defendant because he was standing on a street corner talking to another man, and they saw the police and turned and walked into a store was without reasonable suspicion. There were no furtive movements, and this was only a hunch of criminal activity. State v. Gaston, 2010 Ohio 248, 2010 Ohio App. LEXIS 185 (8th Dist. January 28, 2010).*

Defendant’s tinted windows justified his stop, and a furtive movement of reaching down in the car justified his patdown after the stop. State v. Elliott, 2010 Ohio 241, 2010 Ohio App. LEXIS 179 (8th Dist. January 28, 2010).*

Police responded to a domestic disturbance call and were let in. Defendant refused to remove his hands from his pockets, and that justified a patdown. State v. Olden, 2010 Ohio 215, 2010 Ohio App. LEXIS 165 (2d Dist. January 22, 2010).*

Entry into defendant’s home was justified by community care taking exception where police came to door and knocked repeatedly, and defendant was not roused from the couch. The officer was justified in entering because the defendant appeared unconscious or dead. State v. Hos, 154 Wn. App. 238 (2010).*

A school administrator satisfies T.L.O. as to a car on the school parking lot by having reasonable suspicion. State v. Best, 201 N.J. 100, 987 A.2d 605 (2010):

A school administrator need only satisfy the lesser reasonable grounds standard rather than the probable cause standard to search a student’s vehicle parked on school property.

1. In similar language, the United States and the New Jersey Constitutions protect citizens against unreasonable searches and seizures and require the State to obtain a warrant prior to a search or seizure. Consistent with that standard, a warrantless search is presumed invalid unless it falls “within a recognized exception to the warrant requirement.” T.L.O. makes it clear that the protections of the United States and the New Jersey Constitutions apply to minors and students and that among the constitutional protections afforded students is the right to be free from unreasonable searches and seizures by state officers. Moreover, constitutional protections must be afforded by “the State itself and all of its creatures–Boards of Education not excepted.” In T.L.O. the Court concluded that the school official’s search was unreasonable because he lacked reasonable grounds to believe that the student was concealing evidence of illegal activity in her purse. The United States Supreme Court agreed with this Court’s expression that a reasonableness standard was the appropriate legal standard, but rejected the application of that standard to the facts. (Pp. 8-15)

2. Although this Court has not previously decided whether the reasonable grounds standard or the probable cause standard should apply to a school administrator’s search of a student’s vehicle on school property, other jurisdictions have. Those jurisdictions have consistently applied a reasonableness standard to the search of student vehicles on school property. In the present case, the Court finds no justification to reach a different conclusion. The need for school officials to maintain safety, order, and discipline is necessary whether school officials are addressing concerns inside the school building or outside on the school parking lot. It is the school environment and the need for safety, order, and discipline that is the underpinning for the school official–who has reasonable grounds to believe that a student possesses contraband–to conduct a reasonable search for such evidence. (Pp. 16-19)

3. Under the circumstances of this case, it was reasonable for the vice principal to believe that defendant may have additional contraband in all areas accessible to him on school property, including his locker and his car. Consequently, the vice principal’s search of defendant’s car was reasonably related in scope to the various locations on school property that defendant might have placed the contraband–on his person, his locker, and his car. (Pp. 19-21)

Detention of defendant who was on foot to get his ID to run his information was an unreasonable detention without reasonable suspicion. State v. Montano, 2009 NMCA 130, 223 P.3d 376 (2009).*

[*1] Defendant Ray Anthony Montano asserts that the district court erred in refusing to suppress drug-related evidence obtained from his person in a search incident to his arrest. Neither the record of the hearing nor the suppression order shows specific grounds for denial. The issue is whether the police officer’s actions in stopping and questioning Defendant, who was on foot, and then obtaining Defendant’s identification and running it through dispatch constituted an unlawful investigatory detention. The State acknowledges that the officer did not have reasonable suspicion of criminal activity up to the point that dispatch informed the officer of an outstanding warrant. The State’s position is that the circumstances constituted either a consensual community caretaker encounter excluded from the Fourth Amendment to the United States Constitution or a community caretaker encounter that was subject to, but reasonable under, the Fourth Amendment.

[*2] We hold under the Fourth Amendment that what started out as either a consensual or non-consensual community caretaker encounter became an unlawful investigatory detention. We therefore reverse the district court’s denial of Defendant’s motion to suppress the evidence obtained by the officer after the search incident to Defendant’s arrest on the outstanding warrant.

Owner could validly consent to a search against a guest under Randolph. Testa v. Commonwealth, 55 Va. App. 275, 685 S.E.2d 213 (2009):

Randolph involved the application of the exclusionary rule to “a warrantless search of a shared dwelling” for evidence of a crime. Id. at 120 (emphasis added); see also id. at 119 (noting that the majority was “recognizing limits on merely evidentiary searches”); id. at 122 (limiting issue to situation involving an “express refusal of consent to a police search”). Here, the deputies did not search Griffin’s home. They simply entered it with the owner’s permission, walked into the common hallway at the owner’s invitation, and remained there throughout with the owner’s approval. 2 Testa was not a co-owner, renter, or boarding house tenant. He simply occupied a bedroom in his stepfather’s home. Nothing in Randolph suggests that a live-in guest of a homeowner can veto the owner’s right to invite anyone he may choose (whether police officers or anyone else) to accompany him into the common areas of his own home. See id. at 114 (explaining that Fourth Amendment privacy analysis takes into account any “recognized hierarchy” between the consenter and objector).

n.2 Because of our holding, we need not decide whether Testa’s guttural outburst (“Go fuck yourself”) can be analogized to the statements of the co-owner in Randolph who “unequivocally refused” when the officers asked for consent to search his home. Id. at 107.

A past due rental agreement on a car is a factor in reasonable suspicion, and the officer has no legal obligation to call the car rental company to verify the defendant’s assertion that it has been extended. Sutton v. State, 2009 WY 148, 220 P.3d 784 (2009).

Detailed information of a likely DUI from an identified citizen informer did not have to be fully corroborated. The car was seen, followed for about two blocks, and the car weaved within the lane 4-5 times. While weaving within the lane alone would not be enough, it was when coupled with the CI’s report. State v. Van Dyke, 2009 UT App 369, 223 P.3d 465, 645 Utah Adv. Rep. 19 (2009).*

There was probable cause for defendant’s arrest, so his counsel could not have been ineffective for not challenging it. State v. Trujillo, 153 Wn. App. 454, 222 P.3d 129 (2009).*

Defendant’s frisk was without reasonable suspicion under the state constitution. State v. Harrington, 167 Wn. 2d 656 (2009).* Overview:

Defendant endured a progressive intrusion at the hands of the police. Before an officer’s request to search, he did not ask for defendant’s name or address, did not conduct a warrant check, and did not ask if defendant carried drugs. Instead, the officer initiated contact with defendant on a dark street. The officer asked questions about defendant’s activities and travel that evening and found defendant’s answers suspicious. A second officer arrived at the scene and stood nearby. The first officer asked defendant to remove his hands from his pockets. Then he asked to frisk, without any specific and articulable facts that would create an objectively reasonable belief that defendant was armed and dangerous. Wash. Const. art. I, § 7, could not tolerate this progressive intrusion into defendant’s privacy. Because defendant’s consent to the search was obtained through exploitation of a prior illegal seizure, suppression of the evidence was required.

Search warrant for a person, and “venue evidence” [formerly known in the cases as “indicia evidence”] was not unreasonable nor a pretext for a drug search. The officers were permitted to search in small and hidden places for the venue items, and that permitted the officers to look behind a mirror that led to discovery of drugs. United States v. Morrison, 594 F.3d 626 (8th Cir. 2010):

On May 25, 2007, Investigator Dreher completed a search warrant application for 315 East Dodge Street, requesting that the warrant cover both the person of Martinez as well as venue 2 items linking Martinez to the residence.

2 Investigator Dreher testified that venue evidence is “[a]ny mail that would have [Martinez’s] name on it,” including “mail, papers, [and] receipts.” (Mot. Supp. Hr’g Tr. 13.)

Here, the warrant permitted officers to search for any indicia of Martinez’s connection to 315 East Dodge Street. Venue evidence includes items such as bills, receipts, and letters. See, e.g., United States v. Timley, 443 F.3d 615, 623 (8th Cir. 2006) (“[A] warrant authorizing officers to seize anything related to indicia of occupancy is quite broad.”); United States v. Blakeney, 942 F.2d 1001, 1027 (6th Cir. 1991) (finding that “indicia of occupancy” includes “any document or other object that would tend to provide the true identity of the owners or occupants of the premises”). These types of paper documents can obviously fit into small spaces and containers and, therefore, could be hidden in numerous locations in a residence. See, e.g., Blakeney, 942 F.2d at 1027-28 (finding that a warrant issued for “indicia of occupancy” and other documents and records permitted officers to search inside a suitcase–where they ultimately discovered drug evidence). Because venue evidence could be located in the laundry hamper, garage, cooler, behind a mirror or picture, behind a dresser, and underneath the bed, we find that officers lawfully conducted the search pursuant to the first search warrant when they searched these locations, and that the evidence discovered there was not the fruit of an illegal search.

Accord: United States v. Romo-Corrales, 592 F.3d 915 (8th Cir. 2010).

A 911 hang up call is analogous to an anonymous tip, and it alone cannot form the basis of reasonable suspicion. It may, however, be a factor in reasonable suspicion. Defendant’s flight may not be reasonable suspicion alone, but it can be in conjunction with other things. Here, it all added up to reasonable suspicion for a stop. United States v. Smith, 594 F.3d 530, 2010 FED App. 0032P (6th Cir. 2010):

Smith contends that the 911 call is not a significant factor in considering the totality of the circumstances. Smith argues and the district court appears to have assumed that the emergency 911 call was a silent or hang-up 911 call. In examining the 911 call, this court has found that a 911 hang-up call “standing alone without follow-up calls by a dispatcher or other information, is most analogous to an anonymous tip.” United States v. Cohen, 481 F.3d 896, 899-900 (6th Cir. 2007) (noting that a silent 911 call may be made for numerous, non-criminal reasons and that “without any information from the caller, the silent 911 hang-up call was the equivalent of an anonymous 911 report that there might be an emergency, which might or might not include criminal activity, at or near the address from which the call was made”). Cohen noted that a “silent 911 hang-up call could be said to have suggested the possibility of, among other things, a limited ‘assertion of illegality’ but, absent any observed suspicious activity or other corroboration that criminal activity was afoot,” even that limited assertion could not be accepted. Id. at 900 (citation omitted). The police officer who testified in that case stated that a person had called 911, but that the person had hung up “right after they dialed 911” without providing any additional information. Id. at 897 n.1. Thus, Cohen indicates that a silent 911 call can provide some support for a reasonable suspicion of criminal activity but, by itself, cannot support a finding that the law enforcement officers had a reasonable suspicion of criminal activity.

Officers received information from a pedestrian citizen informant that the defendant tried to sell him drugs, and the officer started following the defendant’s car. Then there were furtive movements in the car by the driver and passenger, and the officer, after stopping the car, was concerned about guns. He handcuffed the driver and searched the car finding a .25 Baretta. The informant did not want to disclose his identity, but that did not prevent there being RS. State v. Jarrell, 968 A.2d 920 (Conn. App. April 21, 2009)* (dissent here):

Although the police could not be certain that the pedestrian lacked a motive to lie, there is nothing in the evidence to suggest that she had such a motive or that when she spoke with the police, at their behest, she knew that regardless of what she told the police, she would be free to go on her way. Accordingly, we reject the defendant’s argument that the police could not rely to some degree on the information provided by the pedestrian. We conclude that the police, in their evaluation of the totality of the circumstances, properly relied on the information that the pedestrian provided.

Defendant was under surveillance for being a drug dealer, and then the police learned he was on parole, so his PO went to the house and said he wanted to conduct a parole search. Defendant assisted in finding a gun and volunteered he would be “hot” on a UA. It was all by consent. Brooks v. State, 285 Ga. 424, 677 S.E.2d 68 (2009).*

Defendants’ car matched the description of one involved in a recent home invasion robbery down to the number of suspects. The stop was justified, and ordering them out of the car was reasonable. Commonwealth v. White, 74 Mass. App. Ct. 342 (June 1, 2009).*

CI gave information that defendant would leave his house to make a marijuana sale. Police watched him, and he left his house and returned. Based on the CI’s information, there was a nexus to the house for a search. State v. Malone, 25 So. 3d 493 (Ala. Crim. App. 2009).*

Florida holds in a case of first impression for a state court that applications for historical cell site information was obtainable by court order and not a search warrant. Mitchell v. State, 25 So. 3d 632 (Fla. App. 4th DCA 2009):

In a case of first impression, the District Court for Massachusetts held that historical cell site information was obtainable through a court order issued pursuant to subsections 2703(c)(1)(B) and (d) of Title 18 of the United States Code. In re Applications of the U.S. for Orders Pursuant to Title 18 U.S.C. § 2703(d), 509 F. Supp. 2d 76 (D. Mass. 2007) (reversing a decision by the Magistrate Judge which required a warrant to obtain historical cell site information).

The district court applied a three-part test to determine if section 2703 provided a proper means to obtain the information. First, the court determined that a cell phone service provider fits within the statutory definition of a “provider of electronic communication service[s],” as defined by the SCA. Id. at 79 (quoting 18 U.S.C. § 2510(15)). Second, the court determined that historical cell site information was “a record or other information pertaining to a subscriber to or customer of” an electronic communications service because it contained “data specific to the handling of a customer’s call.” Id. at 79-80 (quoting 18 U.S.C. § 2703(c)(1)). Third, the court determined that the information was not “content” information because the location of a cell tower disclosed nothing about the “substance, purport, or meaning” of the call. Id. at 80 (quoting 18 U.S.C. § 2510(8)). Lastly, the court found that because historical cell site information disclosed only information in the past and not the current location of the defendant, it did not implicate the Fourth Amendment. Id. at 80-81.

We now adopt the reasoning of the District Court of Massachusetts because our statutory scheme is so similar to the federal statute. We hold that historical cell site information is not content-based. The user of a cell phone has no expectation of privacy in those records. See Smith v. Maryland, 442 U.S. 735 (1979). And, because historical cell site information discloses only the defendant’s past location and does not pinpoint his current location in a private area, it does not implicate Fourth Amendment protections. See United States v. Knotts, 460 U.S. 276 (1983). In short, law enforcement need only comply with the provisions of section 934 to obtain historical cell site information.

Defendant’s vehicle stop was with probable cause from a citizen informant saying he was carrying a stolen gun. The search of the trunk where the police were told by the citizen informant to look was justified by the automobile exception, consent, or the inventory exception. As to inventory, the police had no duty to locate the owner to come and get it rather than tow it. United States v. Clinton, 591 F.3d 968 (7th Cir. 2010).* (Note: This case is an example of how Gant is requiring the courts to go back to any valid alternative ground to sustain a vehicle search. Pre-Gant case law was virtually open season on cars, and that case forces courts to analyze all grounds for a vehicle search instead. And, at least half the time, an alternative works.)

During a knock-and-talk, the police asked the occupants to come outside to talk and they did. One asked if he could go back to get a shirt, and an officer said that he could but the officer had to follow for safety reasons. He assented. Inside, the officer saw crack in plain view, and that formed the basis of a search warrant request, which was valid. The entry was shown to be by consent. Woods v. State, 25 So. 3d 669 (Fla. App. 4th DCA 2010)* (Like Washington v. Chrisman).

CI’s information was not merely “neutral details”; it was specific as to times and dates and it justified defendant’s stop. After the stop, defendant’s actions were such that PC developed. State v. Roubideaux, 2010 Ohio 73, 2010 Ohio App. LEXIS 56 (8th Dist. January 14, 2010)*:

[*P38] By that point, based upon his own firsthand observations in conjunction with the information provided by the CS who saw Roubideaux’s actions, Monnolly had probable cause to believe Roubideaux’s car contained contraband. State v. Underwood, Butler App. No. CA2003-03-057, 2004 Ohio 504; State v. Branch, Licking App. No. 08-CA-153, 2009 Ohio 4152, P34 (distinguishing Florida v. J.L. (2000), 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254). Indeed, if Monnolly did not act, any evidence of criminal activity would be lost because Roubideaux could no longer be detained for the traffic accident.