Orin Kerr’s latest article, Fourth Amendment Seizures of Computer Data is in the Yale Law Journal. Abstract:

What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the stream of possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying those functions to the new environment of computers. The test prevents the government from copying data without regulation and yet also meets and answers the objections that have puzzled scholars and made it difficult to apply the old definition of seizures in the new computer environment.

Plain feel justified seizure of a glass pipe during a patdown, and a baby wipes box could be searched for a weapon. State v. Krenik, 774 N.W.2d 178 (Minn. App. 2009)*:

Reski’s testimony demonstrates that it was immediately apparent to her that the glass tube in Krenik’s pocket was contraband. Reski testified that when she patted down the outside of Krenik’s pocket, she “could feel a smoking glass tube” and recognized it as contraband from her prior experience. Although Reski admitted during cross-examination that she could not be certain that the object was a glass pipe and it “could have been something else,” the “immediately apparent” standard does not require absolute certainty. Brown, 460 U.S. at 741, 103 S. Ct. at 1543. Reski’s testimony adequately supports the district court’s finding that Reski had a “basis to suspect that [the item] was a crack pipe” when she felt it. Therefore, Reski’s warrantless seizure of the pipe was permitted under the plain-feel exception to the warrant requirement.

Krenik also argues that “the retrieval of the unopened baby wipes box … is not justifiable under the ‘plain-feel’ doctrine [because] this item could not have been recognized as … any kind of contraband.” But Krenik’s argument ignores Reski’s other reason for seizing the box, to confirm that it did not contain a weapon. The scope of a pat search extends to all “concealed objects which might be used as instruments of assault.” Sibron v. New York, 392 U.S. 40, 65, 88 S. Ct. 1889, 1904, 20 L. Ed. 2d 917 (1968). The Minnesota Supreme Court has held that during a valid pat search for weapons, an officer may remove a “hard object of substantial size, [even though] the precise shape or nature of [the object] is not discernible through outer clothing.” State v. Bitterman, 304 Minn. 481, 486, 232 N.W.2d 91, 94 (1975). The supreme court reasoned that because “weapons are not always of an easily discernible shape, a mockery would be made of the right to frisk if the officers were required to positively ascertain that a felt object was a weapon prior to removing it.” Id.

Reski felt a box-shaped object. Although she did not know what it was, she testified that she was concerned for her safety because the box could have contained a weapon. She specifically stated that “[d]ue to its size, [the box] could be used to hold any form of weapon in [it], a smaller caliber handgun, [or] a knife.” Because the box could have contained a weapon, Reski was justified in removing it from Krenik’s pocket. After removing the box, Reski opened it, and discovered the methamphetamine. Because the Terry frisk of Krenik was valid, the warrantless seizure of the box was justified because the box might have contained a weapon. The pipe and methamphetamine found in Krenik’s pocket established probable cause for her arrest, and Krenik does not challenge the impoundment or the inventory search of her vehicle that followed her arrest. See State v. Camp, 590 N.W.2d 115, 118 (Minn. 1999) (probable cause to arrest exists when person of ordinary care and prudence would entertain honest and strong suspicion that a crime has been committed).

Rasul on remand in the D.C. Cir. expounds in dicta on the application of the Fourth Amendment to aliens. Rasul v. Myers, 563 F.3d 527, 385 U.S. App. D.C. 318 (D.C. Cir. 2009)

PER CURIAM: The Supreme Court vacated our decision in Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008) (Rasul I), and remanded the case for further consideration in light of Boumediene v. Bush, 128 S. Ct. 2229 (2008). Rasul v. Myers, 129 S. Ct. 763 (2008). We do not believe Boumediene changes the outcome in Rasul I. We therefore reinstate our judgment, but on a more limited basis.

We have before us four British nationals who brought an action alleging that they were illegally detained and mistreated at the United States Naval Base at Guantanamo Bay, Cuba, from 2002 until their release in 2004. …

. . .

“[E]mphatic” is how the Court later described its rejection of the claim that aliens outside the sovereign territory of the United States are entitled to due process rights. Verdugo-Urquidez, 494 U.S. at 269 (citing Eisentrager, 339 U.S. at 770). Following Eisentrager, the Court in Verdugo-Urquidez concluded that the Fourth Amendment did not protect nonresident aliens against unreasonable searches or seizures conducted outside the sovereign territory of the United States. Id. at 274-75. The majority noted that although American citizens abroad can invoke some constitutional protections, id. at 270 (citing Reid v. Covert, 354 U.S. 1 (1957) (plurality opinion)), aliens abroad are in an altogether different situation. Id. at 271. The long line of cases dealing with constitutional rights of both lawful resident aliens and illegal aliens establishes “only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Id. (citing Plyler v. Doe, 257 U.S. 202, 212 (1982) (The provisions of the Fourteenth Amendment “are universal in their application, to all persons within the territorial jurisdiction ….”) (emphasis added in Verdugo-Urquidez); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5 (1953) (“The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.”) (emphasis added in Verdugo-Urquidez)). Those cases could not help an alien who, like Verdugo-Urquidez and plaintiffs in this case, had at no relevant time been in the country and had “no previous significant voluntary connection with the United States,” id.

In Virginia v. Harris, 175 L. Ed. 2d 322 (2009), SCOTUS denied cert with two justices dissenting on whether police need to independently corroborate an informant’s call that a driver appears to be under the influence. The opinion below is posted here. The dissent also shows the conflict in the cases, in the part not quoted:

By a 4-to-3 vote, the Virginia Supreme Court below adopted a rule that will undermine such efforts to get drunk drivers off the road. The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road—by which time it may be too late.

Here, a Richmond police officer pulled Joseph Harris over after receiving an anonymous tip that Harris was driving while intoxicated. The tip described Harris, his car, and the direction he was traveling in considerable detail. The officer did not personally witness Harris violate any traffic laws. When Harris was pulled over, however, he reeked of alcohol, his speech was slurred, he almost fell over in attempting to exit his car, and he failed the sobriety tests the officer administered on the scene.

Harris was convicted of driving while intoxicated, but the Virginia Supreme Court overturned the conviction. It concluded that because the officer had failed to independently verify that Harris was driving dangerously, the stop violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. 276 Va. 689, 696–698, 668 S. E. 2d 141, 146–147 (2008); see Pet. for Cert. 4 (citing record). I am not sure that the Fourth Amendment requires such independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving. This is an important question that is not answered by our past decisions, and that has deeply divided federal and state courts. The Court should grant the petition for certiorari to answer the question and resolve the conflict. (emphasis in original)

S.D. N.Y. holds that the affidavit for a search warrant was subject to the common law disclosure of judicial records, but part of it would be redacted on a balancing of competing interests. United States v. All Funds on Deposit at Wells Fargo Bank in San Francisco, 643 F. Supp. 2d 577 (S.D. N.Y. 2009):

Although the Government’s publicly filed memorandum of law asserts these considerations only conclusorily, it has also submitted, ex parte and under seal, a declaration by the Special Agent who signed the subject affidavits which explains the Government’s position in some detail and attaches a number of exhibits, including the affidavits themselves. See Conte Decl. For the reasons set forth in a separate Sealed Ex Parte Memorandum Opinion, the Court finds that the sensitivity of the Government’s ongoing investigation and the potential that premature disclosure may thwart further seizures are compelling reasons constituting countervailing factors sufficient to require the redaction of certain portions of the subject affidavits and the Conte Declaration, although certain portions of those documents will be unsealed at this time. See Aref, 533 F.3d at 82 (“[W]hile the findings [supporting denial of access] must be made on the record for our review, ‘such findings may be entered under seal, if appropriate.'” (quoting In re N.Y. Times Co., 828 F.2d at 116)). Therefore, although the complete versions of the documents will remain under seal pending further order of the Court, redacted versions of the warrant affidavits and the Conte Declaration will be placed in the Court’s public file. The following portions of the documents will be redacted from the public versions: June 2, 2009, Aff. PP 5 (last sentence only) and 7-13; June 24, 2009, Aff. PP 6 (last sentence only), and 8-14; Conte Decl. PP 9-13, and 15, Exs. 5-7.

Defendant’s appearance that he was on drugs and was excessively fidgety was reasonable suspicion for calling in a drug dog. United States v. Prokupek, 2009 U.S. Dist. LEXIS 72297 (D. Neb. June 30, 2009):

When asked for his driver’s license, registration and insurance, Prokupek said he did not have his license with him. Prokupek had no identification on his person, and Estwick had to collect Prokupek’s biographical information and relay it to the dispatcher. The State Patrol dispatcher was able to verify that Prokupek had a driver’s license. Meanwhile, Trooper Estwick observed Prokupek to be fidgety and agitated. Prokupek kept gritting his teeth and could not keep his hands or feet still. Estwick also described Prokupek’s pupils as “kind of weird acting and real glossy,” and testified that Prokupek exhibited the telltale signs of someone who has been using drugs.

[posted 8/20]

Defendant’s refusal to provide key to locked console in car during consent search of the car was a denial of consent as to the console. J.J.V. v. State, 17 So. 3d 881 (Fla. App. 4th DCA 2009):

In this case, the locked console in the defendant’s car was as much a manifestation of an expectation of privacy in the contents as the locked briefcase in Wells. In both cases, if law enforcement officers wanted access, they had to ask for the key or lock combination or use significant force to open the container. See Mendoza-Gonzalez, 318 F.3d at 671. When the deputy in this case asked for the key, appellant told him that it was not available — that only his mother had a key. In spite of that, the deputy located the key himself and used it to gain access to the console. While his action in doing so was not as intrusive as prying the lock open, it was nonetheless a violation of the defendant’s expectation of privacy in the console. If the defendant had wanted the officer to search the console, he would have given him the key, instead of denying that he had one. Appellant’s actions should have been objectively seen as an affirmative attempt to narrow the scope of his general consent and prevent a search inside the console.

Police officer’s turning on flashing lights to pull up behind an already parked car is not a stop. There are safety reasons for the lights. Jacobs v. United States, 981 A.2d 579 (D.C. App. 2009).*

Police officer in uniform is not inherently coercive; it is but a factor on the totality of consent. People v. Castigilia, 394 Ill. App. 3d 355, 333 Ill. Dec. 738, 915 N.E.2d 809 (2009):

Although an officer’s attire is, perhaps, a relevant factor that may occasionally tip the balance toward or away from a finding that a particular encounter is a seizure, Ocampo hardly suggests that attire is a paramount consideration or even a particularly significant one. To be sure, a police uniform is a vivid reminder of the authority a police officer holds. However, it is the exercise (or apparent exercise) of that authority–not merely its existence–that may result in an encounter becoming a seizure. Thus, a confrontation with a police officer is not a seizure on the basis that the officer’s authority produces an inherent pressure to cooperate. Rather, as the leading commentator on the fourth amendment has suggested, an encounter between a police officer and a civilian “is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse.” 4 W. LaFave, Search & Seizure § 9.4(a), at 425 (4th ed. 2004).

This test, of course, assumes belief in a sort of legal fiction. As defendant notes, “in a truly consensual encounter with a police officer, one would not expect to have to display one’s identification to the officer, or be asked to submit to a search.” To the contrary, it has been stated that “[n]o fourth amendment violation occurs when an officer approaches a person in a public place *** and asks if he is willing to answer some questions and provide identification.” People v. Evans, 296 Ill. App. 3d 1, 9 (1997), citing Mendenhall, 446 U.S. at 555, 64 L. Ed. 2d at 510, 100 S. Ct. at 1877, and Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983); accord People v. Dent, 343 Ill. App. 3d 567, 578 (2003) (“a police officer, in most cases, does not violate the fourth amendment *** by approaching an individual and questioning him or asking for identification,” but this is true only if the individual remains free to disregard the questions and walk away). Similarly, “[a] request for consent to search does not convert a consensual encounter into a seizure ‘as long as the police do not convey a message that compliance with their request is required.'” 4 W. LaFave, Search & Seizure § 9.4(a), at 427 (4th ed. 2004), quoting Florida v. Bostick, 501 U.S. 429, 435, 115 L. Ed. 2d 389, 398-99, 111 S. Ct. 2382, 2386 (1991); see also United States v. Childs, 277 F.3d 947, 950 (7th Cir. 2002) (“the Supreme Court has held repeatedly that police may approach persons and ask questions or seek their permission to search, provided that the officers do not imply that answers or consent are obligatory”).

The sweep of the premises was valid for safety purposes and to protect against potential destruction of evidence. Also, defendant lacked standing to challenge the search of his girlfriend’s car that he was not present in when it happened. Miller v. State, 2009 WY 125, 217 P.3d 793 (2009):

[*P17] The district court also found that the officers restricted their sweep of the residence to actions which would eliminate those exigent circumstances. As in Rideout, the officers did what was necessary to secure Mr. Miller’s residence, but otherwise did not conduct a search until they had obtained a warrant. They walked through the residence to ensure that there was no one inside who might destroy evidence or threaten officer safety. The sweep took a total of two minutes. Officers then left the residence and waited outside for the search warrant.

[*P18] The district court properly recognized that the presence of evidence that is easily destroyed does not, by itself, create an exigency justifying a warrantless search. It did, however, conclude that the presence of drugs, along with all of the other circumstances known to the officers at the time, created exigent circumstances justifying the sweep of Mr. Miller’s residence. We find no error in this conclusion.

Defendant was in the driver’s seat of a car that had come to a stop across a sidewalk against a fence. The police had reason to believe that he was under the influence of alcohol or drugs. When they removed him from the car and ordered him to the ground, he repeatedly took a combative stance toward them. Under the totality of the circumstances, the police had reasonable suspicion to stop Brown and probable cause to arrest him for driving under the influence and resisting arrest. People v. Brown, 217 P.3d 1252 (Colo. 2009).*

A trained narc observed a hand-to-hand drug transaction, and that was probable cause. Williams v. State, 2009 Md. App. LEXIS 163 (October 1, 2009).*

Defendant apartment dweller who had been served with an eviction notice was still in lawful possession when the police entered without a warrant. Therefore, the entry was invalid because he was not a trespasser at that time. State v. Dennis, 2009 Ohio 2173, 182 Ohio App. 3d 674, 914 N.E.2d 1071 (2d Dist. 2009):

[*P26] We therefore turn to whether Dennis retained a reasonable expectation of privacy in Apartment F when the officers entered without a warrant on August 17, 2007. Dennis claims that the evidence was insufficient to establish that he was a trespasser — and, consequently, that he no longer had a reasonable expectation of privacy — because he was still in “lawful possession” of the apartment since there was no evidence that the proper legal procedures for eviction had been completed under R.C. Chapter 1923.

[*P27] “[C]oncepts of state property law are relevant, but not necessarily dispositive, for deciding the question whether there was a legitimate privacy interest for [F]ourth [A]mendment purposes.” United States v. Sledge (C.A.9, 1981), 650 F.2d 1075, 1082.

[*P28] “*** [I]t is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.” Jones v. United States (1960), 362 U.S. 257, 266, 80 S.Ct. 725, 4 L.Ed.2d 697, overruled on other grounds by United States v. Salvucci (1980), 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619. See, also, Georgia v. Randolph (2006), 547 U.S. 103, 110, 126 S.Ct. 1515, 164 L.Ed.2d 208 (stating that “Fourth Amendment rights are not limited by the law of property.”).

[*P29] At the same time, “[a]lthough property [law] concepts are not necessarily determinative of Fourth Amendment rights, they are nonetheless helpful in assessing which expectations society is prepared to recognize as legitimate. In particular, a tenant’s expectation of privacy ceases to be ‘objectively justifiable’ when his occupancy ceases to be lawful, as determined by the terms of his lease and the provisions of his state’s landlord-tenant law.” (Internal citations omitted.) United States v. Ross (C.A.6, 2002), 43 Fed.Appx. 751.

Rounding up students and herding them to the football field while there was a dog sniff of all student belongings required to be kept inside. This was not a search nor an unreasonable seizure. Doran v. Contoocook Valley Sch. Dist., 2009 DNH 32, 616 F. Supp. 2d 184 (D. H.N. March 25, 2009). [This case was posted as “Not for Publication” when released but it was published.] Lexis overview:

Defendants became concerned that there was a serious drug problem at the high school and requested a search using police dogs. Students were told to leave their belongings and escorted to the football field, where they were kept for 90 minutes. The police dogs sniffed the students’ belongings in the school. The court determined that the use of drug dogs to sniff the students’ belongings did not qualify as a search under the Fourth Amendment because the canine sniffs did not expose noncontraband items that otherwise would remain hidden from public view. Holding the students on the football field did not amount to a seizure under the Fourth Amendment, because (1) students were evacuated from the building and corralled outside 10 times a year for required drills, (2) this exercise was not conducted in a stigmatizing manner and no one student, or group of students, was alone the target of a dog’s nose, and (3) regarding leaving their personal belongings inside the building, students were often restricted in what items they could bring to school and where they could leave those items.

The court concludes that the defendant manifested abandonment of a backpack found in a truck. When the vehicle was stopped, the defendant was asked about the backpack, and he disclaimed any ownership in it. United States v. Hinsey, 2009 U.S. Dist. LEXIS 61192 (D. Haw. July 17, 2009).*

Alleged innocent driver of a stolen car still did not have standing. It was his burden and he failed. United States v. Cates, 641 F. Supp. 2d 613 (N.D. Tex. 2009):

Cates argues that “the driver of a stolen vehicle has a sufficient privacy and possessory interest in that vehicle for Fourth Amendment purposes if he is oblivious to the fact that it is stolen,” and that “‘[at the evidentiary hearing] the [G]overnment only presented evidence that the vehicle was in fact stolen and that Cates candidly acknowledged that the vehicle did not belong to him.” Cates argues that because “the [G]overnment presented no evidence establishing that Cates stole the searched vehicle, that he knew the vehicle was stolen or, even if he knew it was stolen, [or] that he knew it was stolen at the time he acquired it,” the Court should presumptively find that he was an innocent possessor of the vehicle and therefore had a legitimate expectation of privacy in it.

This argument lacks merit because Cates improperly reallocates the burden of proof, by seeking to require the Government to disprove his reasonable expectation of privacy in the stolen car. That reverses the appropriate burden. If Cates relies on a lack of knowledge of the stolen character of the vehicle to establish a reasonable expectation of privacy in it, he bears the burden of proof of such facts. Cates’ proffered example, where an individual acquires a stolen vehicle innocently from an “unscrupulous” car dealer, would present a legitimate question regarding an expectation of privacy in an unwittingly stolen vehicle. But it would require proof of such a purchase by the Defendant, and no such proof was offered in this case.

Rather than arguing that he did not know the car was stolen, or that he believed he was in rightful possession of the car, Cates merely argues that the Government failed to prove otherwise. Cates has failed to meet his burden of proving that he innocently possessed the stolen vehicle, so the Court need not consider under what circumstances an individual who innocently possesses a stolen vehicle may have a legitimate expectation of privacy in the vehicle.

Defendant’s strip search at the precinct house was valid. He and his cohorts were arrested for suspicion of armed robbery, and the patdown produced no weapons. Based on the CI’s information that they were all armed, and the fact that officers had not found weapons during patdowns in the past that produced weapons at the precinct house on a full search, a strip search at the precinct house was permissible. United States v. Gonzalez, 2009 U.S. Dist. LEXIS 59742 (S.D. N.Y. March 2, 2009):

While it does not appear that Detectives Badyna and Marinez had any reason to believe that they would find drugs on Gonzalez’s person, both testified that, based on their years of law enforcement experience, arrestees could hide weapons or other contraband on their person that pat-down searches would not detect. Gonzalez’s agitation and refusal to cooperate with the strip search and the bagginess of his clothing strengthened an already-reasonable suspicion that his person contained additional evidence of criminality, a1ong the lines of that found in the Accord, or weapons. (Tr. 28-30, 101-103, 167-172). See, e.g., United States v. Asbury, 586 F.2d 973, 976-77 (2d Cir. 1978)(stating that factors leading to reasonable suspicion justifying a strip search include “defendant’s excessive nervousness, unusual conduct, [or] an informant’s tip”).

Moreover, the strip search of Gonzalez was limited in scope and occurred in a private bathroom. While four officers were present for the search, and Gonzalez was handcuffed for its duration, these conditions resulted from Gonzalez’s physical resistance to the officers and their efforts to conduct the search. With regard to the scope of that search, after the removal of Gonzalez’s pants, Detective Badyna merely removed an item protruding from Gonzalez’s buttocks in plain view. No officer reached into any bodily cavity or otherwise touched any private area of Gonzalez’s body. (Tr. 89, 103-105, 172, 194).

In the Third Circuit, “An officer’s burden of production in justifying a traffic stop is to: (1) identify the ordinance or statute that he believed had been violated; and, (2) provide specific, articulable facts that support an objective determination of whether any officer could have possessed reasonable suspicion of the alleged infraction based upon those facts. [United States v. Delfin-Colina, 464 F.3d 392,] 399 [(3d. Cir. 2006)].” The officer had the authority to order the occupants out of the car and then probable cause came into being when a tin of cocaine fell on the ground as defendant got out. United States v. Truley, 2009 U.S. Dist. LEXIS 59368 (W.D. Pa. July 13, 2009).*

A vehicle lawfully impounded is still subject to search when readily mobile under the automobile exception and inventory exception, and Gant has no application to that. United States v. Arriaza, 641 F. Supp. 2d 526 (E.D. Va. 2009).*

Defendant claimed he did not have a driver’s license and gave a name. He consented to a patdown for weapons, and the officer felt a card. He demanded production of the card, and it was his DL with the real name. The production of the card was not justified under the patdown. Johnson v. State, 297 Ga. App. 847, 678 S.E.2d 539 (2009).

Officer violated state law by recording conversation between two suspects in a police car, but the dog sniff of the car was permissible under inevitable discovery. State v. French, 2009 Ohio 2342, 2009 Ohio App. LEXIS 1983 (9th Dist. May 20, 2009).*

Officer had exigent circumstances for entry after responding to a call about a domestic dispute on the premises involving women. When no women came to the door to talk about it and defendant admitted that a woman was around, he had reason to enter to check on her welfare. State v. Baker, 2009 Ohio 2340, 2009 Ohio App. LEXIS 1995 (9th Dist. May 20, 2009).*

Under state judicial assignment rules, once a case was reassigned, the other judge could not rule on it. This was not a double jeopardy error, however, and the first judge’s denial of the motion was reversed for reconsideration with second judge. State v. Vanni, 2009 Ohio 2295, 182 Ohio App. 3d 505, 913 N.E.2d 985 (9th Dist. 2009).*

PO had reasonable cause to conduct a probation search of defendant’s premises after talking with defendant’s roommate. State v. Hedgecock, 212 P.3d 1010 (Ida. App. 2009).*

Dryer sheets found in a rental car is a likely masking device and a factor worth considering in reasonable suspicion. Feeney v. State, 2009 WY 67, 208 P.3d 50 (2009).*

Officer noticed on the defendant’s rental agreement that the rental car was permitted only to operate in California and Nevada, but it was in Kansas. Defendant lied about his geographical permission, and his story otherwise was implausible. Coupled with nervousness, the officer had reasonable suspicion. United States v. Duenas, 2009 U.S. App. LEXIS 10857 (10th Cir. May 21, 2009) (unpublished).*

While the vehicle search violated Gant, the “technical violation” prong of the state good faith exception statute applied, so the search was not suppressed. People v. Key, 2010 Colo. App. LEXIS 361 (March 18, 2010):

The trial court determined, and we agree, that the search of the car was permissible under our supreme court’s pre-Gant jurisprudence. This major premise leads us to a minor premise: the officers who conducted the search acted reasonably in good faith when they relied on this jurisprudence. We complete this syllogism by concluding that, although Gant indisputably overrules our supreme court’s jurisprudence in this area, in this case its effect is only to render the search a good-faith “technical violation” of the law, which means that the evidence remains admissible under section 16-3-308, C.R.S. 2009.

In reaching this conclusion, we recognize that the exclusionary rule is a “judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). Therefore, in order to understand the contours of the exclusionary rule, and any potential constitutional effect that those contours might have on section 16-3-308, we must discuss how the United States Supreme Court and our supreme court have interpreted the exclusionary rule and the good faith exception to the rule. It is important to do so here because (1) the United States Supreme Court has not yet considered whether the good faith exception applies when the police rely on a judicial precedent that is later overruled; and (2) our supreme court has only considered such applicability where, unlike here, the case involved a stricter standard under the Colorado Constitution than that required by the United States Constitution.

Co-driver with owner of truck was capable of consent, even though owner (defendant, with a superior legal interest) was also present. Houston v. State, 286 S.W.3d 604 (Tex. App.–Beaumont 2009),* citing Maxwell v. State, 73 S.W.3d 278, 282 (Tex. Crim. App. 2002).

“[A]lthough Defendant showed that an omission occurred, he made no showing that the affiant intended to mislead the judge by that omission.” United States v. Merrell, 330 Fed. Appx. 556, 2009 FED App. 0382N (6th Cir. 2009)* (unpublished).

Defendant was not seized when he walked away from officers calling for him to stop. He was when they laid hands upon him. Officers had reasonable suspicion based on the fact it was a high crime area and they were sent by dispatch to the place of a fight. United States v. Mitchell, 2009 U.S. Dist. LEXIS 44489 (E.D. N.Y. May 27, 2009).*

The fact the consenter was under pressure to consent by her circumstances did not make it involuntary. United States v. Newman, 2009 U.S. Dist. LEXIS 44635 (W.D. Wisc. May 27, 2009):

Nevertheless, the record does not support a claim of illegal coercion to admit to drug possession. The record shows a young woman in a tight spot, wanting to protect her boyfriend but wanting even more to protect herself and her child from the consequences of an arrest on drug charges. Faced with a decision between temporarily delaying a search of her apartment that she knew would disclose at least the marijuana pipe and agreeing to a search with the promise that she would not be charged with possession of the pipe or any other paraphernalia, she made a rational choice based on accurate, if unpalatable information.

Search of defendant’s person was justified by search incident and money found on him was admissible in drug case. State v. Grimes, 2009 La. App. LEXIS 982 (5th Cir. May 26, 2009).*

Defendant did not submit to a show of force of the officer pointing a gun at a group on a porch and telling them to put their hands up. Instead, he reached for his waistband and then ran inside. The defendant’s failure to submit to the show of force was not a seizure. United States v. Waterman, 569 F.3d 144 (3d Cir. 2009):

Here, there was no application of physical force. The police drew their guns in a “show of authority.” While this act definitely constituted a display of force, we conclude that it fell short of the physical force required under Hodari D.

Similarly, there was no “submission” by Waterman. While the others on the porch raised their hands in compliance with the officers’ directive, Waterman failed to do so. Instead, he moved his hands toward his waistband, and ultimately retreated into the house.

The district court did not abuse its discretion in refusing to enforce a subpoena for all traffic stop records for the officer for view obstruction, for things hanging from the mirror. It would have provided only marginal impeachment. Defendant was otherwise shown to have consented to the search. United States v. Arciniega, 569 F.3d 394 (8th Cir. 2009).

The record supports the district court’s conclusion that defendant consented to the search. United States v. Mendoza, 334 Fed. Appx. 515 (3d Cir. 2009) (unpublished).*

There was reasonable suspicion for stopping defendant in the first place, so the bad record keeping issue involving Herring need not be adressed. United States v. Bryant, 334 Fed. Appx. 259 (11th Cir. 2009) (unpublished).*

Defendant lacked “standing” to challenge either the officers’ entry into the apartment or the resultant search because he expressly disclaimed any subjective expectation of privacy in the apartment by telling the officers that he did not live there, was just visiting, and was unable consent to a search. United States v. Vasquez-Padilla, 330 Fed. Appx. 883 (11th Cir. 2009) (unpublished).*

Fact that base commander was involved in “cops and robbers” meetings where he was briefed on all ongoing investigations on the base did not make him neutral and detached for issuing a search authorization. Also, the fact he had not denied any of the prior 5-7 search requests did not show that he was not neutral and detached because there could have been PC in all of them. United States v. Hobbs, 2005 CCA LEXIS 624 (A.F. Ct. Crim. App. October 26, 2005) [on Lexis today, go figure; listed as “published” on court’s website].

The Court of Appeals (State v. Marx, 38 Kan. App. 2d 598, 171 P.3d 276 (2007)) was correct that the community caretaking function cannot be a pretext for an investigative stop. State v. Marx, 289 Kan. 657, 215 P.3d 601 (2009).

Defendant was detained because he was put in the back of a police car and was not told he was free to leave. Nevertheless, he could still validly consent. State v. Kemp, 2009 OK CR 25, 217 P.3d 629 (2009).*

Officers were able to position themselves to look in windows of defendant’s property as they approached for safety purposes on this record. State v. Foster, 347 Ore. 1, 217 P.3d 168 (2009), rev’g State v. Foster, 219 Or App 276, 182 P3d 262 (2008):

In this case, the deputies had a reasonable suspicion that they were about to encounter circumstances in which (1) there might be as many as 10 occupants of the residence, (2) those occupants might be armed, and (3) the occupants might be willing to use force against the deputies. There was an open, lighted window some 20 feet past the front door; Hardison went to look through that window in order to “keep[] an eye on the residen[ts] inside the house” while the deputies served the restraining order. By doing so, Hardison would have been able to warn the other deputies if an occupant either was armed or had begun arming himself when the deputies knocked. Under those circumstances, we agree with the trial court that Hardison’s actions were within the range of reasonable precautions that the officers were entitled to take against the anticipated threat.

The Court of Appeals appears to have reached a contrary conclusion because it applied a more demanding test to the deputies’ actions. The issue, that court stated, was whether the state had “identif[ied] sufficient, articulable facts to show that officer-safety concerns required Deputy Hardison to position himself [where he did,] *** as distinguished from a different location that could ensure officer safety.” Foster, 219 Or App at 284 (emphasis added). That test misreads both the officer safety doctrine and Bates, which explained the doctrine. The requirement of specific, articulable facts relates only to whether an officer reasonably suspected an immediate threat. See Bates, 304 Or at 524 (“a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury”). [emphasis in original]

Inventory search was not shown to be conducted according to standardized policy, even where the policy was not in writing. It was the state’s burden, and it failed. People v. Clark, 914 N.E.2d 734 (Ill. App. 2009):

Our review shows that defendant’s vehicle was curbed by Officer Mocarski and his partners on a residential city street. There was no evidence, however, of its exact location, or that it was illegally parked, impeding traffic, or threatening public-safety or convenience. Ursini, 245 Ill. App. 3d at 483, 486; People v. Brown, 100 Ill. App. 3d 57, 63-64, 426 N.E.2d 575, 55 Ill. Dec. 429 (1981). In addition, Officer Mocarski did not testify that he towed the vehicle to protect it against damage or theft. People v. Schultz, 93 Ill. App. 3d 1071, 1076, 418 N.E.2d 6, 49 Ill. Dec. 362 (1981). The record, therefore, does not support the bases proffered by the State to establish the validity of the impoundment. Ursini, 245 Ill. App. 3d at 487.

The record also does not support the State’s further contention that Officer Mocarski lawfully impounded the vehicle pursuant to a standardized police procedure. Ursini, 245 Ill. App. 3d at 483. Although Officer Mocarski testified to standard police procedure requiring him to take defendant into custody for verification of his identity and to conduct an inventory search incident to towing, he failed to testify to such a procedure requiring him to tow the vehicle. People v. Lear, 217 Ill. App. 3d 712, 714, 577 N.E.2d 826, 160 Ill. Dec. 501 (1991). Rather, Officer Mocarski testified to his belief that he could not leave the car on the street.

Although there is no requirement that the State present written procedures in such a case, Officer Mocarski’s testimony here was insufficient to show that he was acting in accordance with a standardized police procedure regarding the decision to tow. Gipson, 203 Ill. 2d at 306, 309; Lear, 217 Ill. App. 3d at 714. That omission, and the lack of evidence regarding the location of the car, leads us to conclude that no cognizable reason for the impoundment was shown to justify the subsequent search conducted pursuant to it. Schultz, 93 Ill. App. 3d at 1077.

Texas’s exclusionary rule (Art. 38.22) bars admission of statements that are a new crime in themselves. Judicial exceptions to Miranda do not apply under 38.22. Nguyen v. State, 292 S.W.3d 671 (Tex. Crim. App. 2009).*

Recent postings to SSRN:

Winn, Peter A.,Katz and the Origins of the ‘Reasonable Expectation of Privacy’ Test (October 29, 2008). McGeorge Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1291870

Anderson, José F.,Reflections on Standing: Challenges to Searches and Seizures in a High Technology World (Spring 2006). Mississippi Law Journal, Vol. 75, p. 1099, 2006. Available at SSRN: http://ssrn.com/abstract=1344516

Harris, David A.,How Accountability-Based Policing Can Reinforce – Or Replace – The Fourth Amendment Exclusionary Rule (May 29, 2009). Ohio State Journal of Criminal Law, Vol. 7, 2009; U. of Pittsburgh Legal Studies Research Paper No. 2009-17. Available at SSRN: http://ssrn.com/abstract=1411650

Tony Mauro in Law.com: Roberts Court takes narrow road to right / Decisions suggest chief justice may be slow-playing Court’s march to the right:

“This Court can afford to be quite patient,” said Thomas Goldstein of Akin Gump Strauss Hauer & Feld at a Washington Legal Foundation briefing June 30. Moving rightward by building on narrow precedents one by one rather than all at once “won’t look as dramatic,” said Goldstein. But instead of describing it as incrementalism, the founder of SCOTUSblog offered the word “actuarialism” to describe his view of the Roberts approach. In other words, by looking at who might leave the Court first (liberals) and who might replace them (liberal President Barack Obama), Goldstein thinks the Court’s conservatives foresee as many as eight more years of dominating the Court, allowing them to take the long view.

Goldstein added that there’s nothing wrong with this go-slow approach, which he said reflects Roberts’ “institutional commitment” to preserving the Court and “ensuring that it is regarded as an institution of integrity rather than a political football.”

There is no Fourth Amendment violation in a technical violation of Rule 41(d) that the warrant be delivered to the target at the time of the search. United States v. Sherrer, 2008 U.S. Dist. LEXIS 39360 (D. Ore. May 13, 2008).*

Affidavit for search warrant showed probable cause for child porn based on statements the defendant made to the informant of his preference for young girls. The affidavit was not stale because child porn tends to be kept, and it is likely that child porn will be kept at home. United States v. Potts, 559 F. Supp. 2d 1162 (D. Kan. 2008).*

Defendant’s furtive conduct when approached by a police officer was suspicious. Defendant got out of his car and locked it with the remote. The officer looked in the car and saw a syringe and aluminum foil for cooking drugs. Camp v. State, 983 So. 2d 1141 (Ala. Crim. App. 2007).*

Defendant was free to go, without a traffic ticket having been issued, and walking away from the officer when the officer asked for permission to search, which was granted. People v. Montalvo-Lopez, 215 P.3d 1139 (Colo. App. 2008).*

While the police were only able to corroborate innocent details from the CI, there were sufficient details to show RS. Here, the police had more corroboration than in White. People v. Payne, 393 Ill. App. 3d 175, 912 N.E.2d 301, 332 Ill. Dec. 115 (2009)*:

The facts of this case are even stronger than the facts in White because in this case, the police knew the informant’s identity and knew that he had provided them with reliable information the day before. Further, the facts of this case are remarkably similar to the facts in both Gates and Draper, in which the stricter probable cause standard was necessary in order to defeat the defendants’ motions to suppress. Certainly, considering the totality of the circumstances and the lower level of suspicion necessary to perform a Terry stop, the State sufficiently established that the officers had a reasonable suspicion to make the initial investigatory stop.

Generally, a warrant based on probable cause is required to search a person’s home, and probable cause requires some nexus between the alleged criminal activity and the place to be searched. However, this nexus requirement does not apply to the search of a parolee’s home when the parole officer has reasonable suspicion to believe that the parolee has violated a condition of his or her release and the parolee has been informed that he or she is subject to property searches based on reasonable suspicion of a parole violation. The degree of reliability necessary to support a parole search based on reasonable suspicion of a parole violation, like the parolee’s expectation of privacy, is greatly diminished. State v. Haffner, 42 Kan. App. 2d 205, 209 P.3d 734 (Kan. App. 2009).

Defendant was arrested after he walked out of a bedroom, and a search incident was conducted of the bedroom. The court finds that Gant does not apply to houses. United States v. Harris, 2009 U.S. Dist. LEXIS 86269 (N.D. Ill. September 21, 2009)*:

Assuming the seizure of the gun occurred before law enforcement obtained Truss’ consent to search, the gun was justifiably seized as incident to Defendant’s lawful arrest because the gun was recovered from the bedroom after Defendant was arrested coming out of the bedroom. See United States v. Tejada, 524 F.3d 809 (7th Cir. 2008) (law enforcement justified in searching the area that was in the immediate reach of the defendant at the time he was arrested, even though he was no longer there at the time of the search). In Tejada, the Seventh Circuit reasoned that “if the police could lawfully have searched the defendant’s grabbing radius at the moment of arrest, he has no legitimate complaint if, the better to protect themselves from him, they first put him outside that radius.” Id. at 812.

Here, it is uncontested that Defendant was in the bedroom at the time that agents entered the residence and that Defendant was apprehended by agents as he was coming out of the bedroom. The bedroom, and specifically the mattress, was within Defendant’s grabbing radius at the time of his arrest. See Tejada, 524 F.3d at 811 (entertainment center that was within a few steps of the defendant at the time of his arrest was within defendant’s grabbing distance). Thus, even though at the time of the search the Defendant was removed from the radius, under Tejada, the agents were justified in recovering the gun.

Defendant argues that Arizona v. Gant compels a different result. 129 S.Ct. 1710 (2009). In Gant, the Supreme Court recently held that a warrantless search of vehicle incident to arrest is only authorized if the arrestee is within reaching distance at the time of the search or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest. Id. at 1723. However, the holding in Gant was limited to searches of vehicles incident to the arrest of the vehicle’s recent occupant. Id. at 1723-24. As such, Gant fails to abrogate Tejada, on which I rely.

The room next to where defendant was arrested was subject to a valid protective sweep and not a search incident. United States v. Lemus, 582 F.3d 958 (9th Cir. 2009)*:

According to Buie, a “protective search ‘incident to the arrest'” to protect the arresting officers from the danger of a surprise attack can be completed without reasonable suspicion or probable cause if two conditions are present. First, the area searched must “immediately adjoin []” the area of arrest. Id. Second, the area searched must be one “from which an attack could be immediately launched,” and thus in any event must be capable of concealing at least one person. Id. Both of these conditions are satisfied here.