The implied consent statute did not prevent the officer from getting a search warrant for BAC when the defendant refused a blood test. City of Seattle v. St. John, 166 Wn.2d 941, 215 P.3d 194 (2009).*

Smell of marijuana after officer approached defendant’s car was RS. State v. Arrington, 2009 Ohio 4721, 2009 Ohio App. LEXIS 3993 (8th Dist. September 10, 2009).*

There was no reasonable suspicion for a search of the passenger in a car that was stopped for going the wrong way on a one-way street. State v. Morrison, 2009 Ohio 4724, 2009 Ohio App. LEXIS 3997 (8th Dist. September 10, 2009).*

The trial court erred in granting a motion to suppress a search as lacking probable cause, but on remand, the trial court has to consider numerous factual errors that were not resolved the first time around that might undermine PC. State v. Kiraly, 2009 Ohio 4714, 2009 Ohio App. LEXIS 3986 (8th Dist. September 10, 2009).*

The officer did not stop the defendant when he approached the defendant who was parked at a gas pump. The officer was parked on the street and had no lights on when he came up to the defendant. Powell v. State, 2009 Ind. App. LEXIS 1483 (September 8, 2009).*

Defendant’s weaving in traffic for about a half mile justified his stop. Potter v. State, 912 N.E.2d 905 (Ind. App. 2009).*

Defense counsel had no reason to file a motion to suppress, so he could not be ineffective. Allen v. State, 2009 Tenn. Crim. App. LEXIS 754 (September 9, 2009).*

The officer had reasonable suspicion to continue defendant’s stop because of nervousness, a third party car rental, and other factors suggesting they were transporting drugs. Parker v. State, 2009 Tex. App. LEXIS 7122 (Tex. App. — Eastland September 10, 2009).*

Probation officer conducting a home visit had reasonable suspicion to make the home visit intensive, and he lawfully searched under the bed and in a refrigerator. United States v. Cofer, 2009 U.S. Dist. LEXIS 82141 (S.D. Ohio August 26, 2009).*

Defendant made a preliminary showing for a Franks hearing because, if the information was removed from the affidavit, probable cause was lacking. United States v. Laich, 2009 U.S. Dist. LEXIS 82365 (E.D. Mich. September 10, 2009).*

“Today we decide whether a warrantless administrative inspection of a dentist’s office not authorized by statute violates the Fourth Amendment’s prohibition against unreasonable searches. We conclude that it does and, accordingly, reverse.” Seymour v. Dep’t of Health, 152 Wn. App. 156, 216 P.3d 1039 (2009):

¶17 Reining in the power of the executive branch in conducting administrative searches is a primary concern of courts reviewing such statutory schemes. Where a statutory scheme is properly formulated and followed, Fourth Amendment concerns are addressed by the elimination of unreasonable searches. In such cases, “it is difficult to see what additional protection a warrant requirement would provide. … The discretion of Government officials to determine what facilities to search and what violations to search for is thus directly curtailed by the regulatory scheme.” Donovan, 452 U.S. at 605. A proper regulatory scheme, “rather than leaving the frequency and purpose of inspections to the unchecked discretion of Government officers … establishes a predictable and guided … regulatory presence.” Dovovan, 452 U.S. at 604. Hence, the person subject to the inspection “is not left to wonder about the purposes of the inspector or the limits of his task.” Biswell, 406 U.S. at 316. The “regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.” Burger, 482 U.S. at 703 (citing Barlow’s, 436 U.S. at 323).

¶18 Of critical importance to the validity of the warrantless inspection of Dr. Seymour’s office is whether it satisfied the criterion of being authorized by a statute providing a constitutionally adequate substitute for the Fourth Amendment’s warrant requirement. It did not. Although Dr. Seymour does not contend that the UDA provides inadequate statutory authorization for warrantless administrative inspections, we nonetheless conclude that the inspection herein was not made pursuant to a statutory scheme sufficiently protective of Dr. Seymour’s rights because it was not made pursuant to any recognized statutory scheme at all.

¶19 Well before the commencement of the adjudicatory hearing herein, we made clear that an investigation under the UDA “may not proceed until the [disciplining authority] reviews the complaint and determines that there are reasonable grounds to believe unprofessional conduct occurred.” Yoshinaka, 128 Wn. App. at 843. We also emphasized that the UDA does not authorize DOH employees “to initiate an investigation unless the [disciplining authority] first makes a determination of merit and directs the [DOH] to investigate.” Yoshinaka, 128 Wn. App. at 843. Assuming that the UDA’s requirements, as construed in Yoshinaka, are adequate substitutes for the warrant requirement, 6 the warrantless inspection herein was invalid because it was commenced before the determination of merit required by the UDA was made, indeed before the commission or a panel thereof was even aware of the complaints. Therefore, the inspection violated Dr. Seymour’s rights under the Fourth Amendment.

Taking a DNA sample as an investigative tool only required reasonable suspicion under Fourth Amendment and state constitution. Garcia-Torres v. State, 2009 Ind. App. LEXIS 2043 (September 30, 2009):

After comparing cheek swabs with other searches requiring only reasonable suspicion, we conclude that the DNA sample collection technique at issue here, although minimally invasive, is also one of those limited searches that requires only reasonable suspicion and may therefore be conducted without a warrant. If anything, the cheek swab involves much less impact on the subject than some other searches that all agree may be conducted based on mere reasonable suspicion. As the United States Supreme Court has observed, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 392 U.S. at 24-25. And yet, it is universally understood that such a pat-down may be conducted upon reasonable suspicion.

In contrast, a cheek swab takes even less time than a pat-down or field sobriety tests (“FSTs”) and is painless. Moreover, a swab of the inside of the cheek is very limited in scope, whereas a pat-down will generally involve manual exploration of the entirety of a suspect’s body, including the genital areas. Finally, a swab does not carry nearly the same potential for opprobrium as pat-downs or FSTs, which will typically occur on public thoroughfares. As such, swabs are even less violative of the “[t]he interests in human dignity and privacy which the Fourth Amendment protects” than pat-downs or FSTs. Schmerber, 384 U.S. at 769-70. If pat-downs and FSTs may be performed based upon mere reasonable suspicion, it follows, then, that cheek swabs, which are even less burdensome, may be as well.

The United States District Court for the District of South Carolina has reached the same conclusion. See In re Shabazz, 200 F. Supp. 2d 578, 585 (D.S.C. 2002). The Shabazz Court concluded that collection of a saliva sample by cheek swab lies somewhere between a “surgical procedure” involving a protrusion under the skin, which requires a showing of probable cause, and things such as the collection of voice samples, handwriting exemplars, and fingerprinting, which are not even searches subject to the Fourth Amendment. Id. at 582, 584 (citing Schmerber, 384 U.S. at 767). Although the Shabazz Court concluded that particularized suspicion was required before a saliva swab could be administered, it also concluded that a saliva swab did not rise to the level of a “surgical procedure” under Schmerber. Id. at 584. It followed, then, that the existence of reasonable suspicion would suffice. Id.

Concluding, as we do, that a cheek swab is a search which is justified by the presence of reasonable suspicion, the only other question is whether police had reasonable suspicion in this case. …

Here, we conclude that police had far more than a mere hunch that Garcia-Torres had been involved in the attack on S.P. when they collected the DNA sample. … These objective facts, taken together, support a reasonable suspicion that Garcia-Torres was S.P.’s attacker, thereby justifying the cheek swab.

Nighttime knock and talk was more than minimally intrusive, but officers were not in the house and there were no consequences from failure to respond. Therefore it was reasonable under the Fourth Amendment and the state constitution. Brown v. State, 913 N.E.2d 1253 (Ind. App. 2009).*

The exclusionary rule does not apply to prevent the use of DNA from a convict that was not taken until weeks after his release from prison that was used to match to another crime. Leftwich v. State, 299 Ga. App. 392, 682 S.E.2d 614 (2009):

Moreover, the DNA sample was taken from Leftwich on February 18, 2005, rather than January 2, 2005, (the final date Leftwich argues that he was legally held in prison) simply because he was physically discharged from custody on February 18. 10 Thus, even assuming that Leftwich’s detention at the time was illegal, the exclusionary rule does not apply to this case because the DNA extraction (and thereby, the CODIS match to E. C.’s attacker) was not a result of any illegal detention by the State. 11 Furthermore, the threat of exclusion of evidence in this case is not likely to deter future instances of the presumed illegal conduct in this case–holding an inmate beyond the end of his sentence term–because the Department of Corrections employees responsible for calculating prison terms have no stake in the outcome of future criminal prosecutions.

The purpose of the traffic stop was dispelled as the officer approached the back of the car and saw the temporary tag. He was obliged to permit the defendant to leave without questioning. There is no basis to permit the officer to explain the erroneous purpose of the stop and then letting him go. State v. Morris, 2009 UT App 181, 214 P.3d 883, 633 Utah Adv. Rep. 23 (2009):

[*P10] The State argues that the traffic stop was justified at its inception because Trooper Williams could not see the temporary permit when he signaled Mr. Morris to pull the SUV to the side of the road. 5 The State further contends that, regardless of when Trooper Williams actually recognized the temporary permit, he was justified in approaching the SUV window to explain his mistake. In support, the State cites United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), wherein the Tenth Circuit Court of Appeals stated, in dicta, that a police officer may, “[a]s a matter of courtesy,” explain to an erroneously stopped driver the mistaken reason for the stop, before “allow[ing] them to continue on their way.” Id. at 562. The State urges us to adopt this as the policy in cases, such as the present case, where a driver is mistakenly pulled over. Mr. Morris, on the other hand, emphasizes that McSwain is not binding on this court and argues that adoption of the McSwain dicta would be contrary to well-settled Utah precedent prohibiting continued police detention once reasonable suspicion has dissipated. For reasons discussed more thoroughly below, we agree with Mr. Morris and decline to adopt the McSwain dicta.

Defendant probably could challenge the search of his backpack in the vehicle of another. While he lacked “standing” as to the vehicle, he had standing as to the backpack. The smell of marijuana from the backpack, however, gave probable cause to search it. State ex rel. D.A.B. v. State, 2009 UT App 169, 214 P.3d 878, 633 Utah Adv. Rep. 10 (2009).*

A broken gun magazine seen as defendant was exiting his car during a traffic stop justified a frisk for the gun. State v. O’Neal, 7 So. 3d 182 (La. App. 2d Cir. 2009).*

Search incident to a warrant arrest during a traffic stop was justified. State v. Munoz, 2009 Ida. App. LEXIS 22 (March 25, 2009).*

Defendant was told that a search warrant had been issued for his house and it was on its way, and defendant admitted the officers. The conversation occurred outside and away from the house. People v. Shultis, 61 A.D.3d 1116, 876 N.Y.S.2d 740 (3d Dept. 2009).*

Defendant process server lost any reasonable expectation of privacy in papers left in a file folder in a courthouse hallway on a bench which were picked up to determine whom they belonged to. The process server was convicted of forging one of the documents. State v. Russ, 2009 WI App 68, 317 Wis. 2d 764, 767 N.W.2d 629 (2009).*

Officer’s removing of defendant’s gym bag from a taxicab was a seizure because it was a meaningful interference with his interest in the property. An interference could have been justified by reasonable suspicion in a proper case, and there was none here. United States v. Allison, 637 F. Supp. 2d 657 (S.D. Iowa 2009):

The threshold question, then, is whether Deputy Hedgecock meaningfully interfered with Defendant’s possessory interests in the gym bag when he removed it from the taxicab. The Supreme Court has noted that removal of an individual’s luggage to another location constitutes a “substantial intrusion on [the individual’s] possessory interests.” United States v. Place, 462 U.S. 696, 710 n.9, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (finding that law enforcement officers’ removal of luggage within the defendant’s immediate possession from one airport to another airport in order to subject the luggage to a “sniff test” by a trained narcotics detection dog constituted a seizure). The argument that a meaningful interference can result from moving an individual’s luggage without his consent is further bolstered in light of United States v. Alvarez-Manzo, No. 08-2647, F.3d , 2009 U.S. App. LEXIS 14854, 2009 WL 1905437, at *4-6 (8th Cir. July 6, 2009), a recent Eighth Circuit case, wherein the court concluded that a seizure occurred when law enforcement officers removed a suitcase from the lower storage area of a commercial passenger bus and brought it into the passenger cabin of the bus in order to ascertain the whereabouts of the suitcase’s owner. In Alvarez-Manzo, the court reasoned that merely moving the luggage deprived a common carrier of the possessory interest it had obtained through its status as bailee of the checked luggage; the court did not concern itself with where the luggage was being taken but rather focused solely on whether the bailee-common carrier had authorized the movement. Id.

This is not a common carrier case in the variety of Va Lerie or Alvarez-Manzo. While the bag was in a public transportation vehicle, it was never provided to the taxi driver as a bailee but remained in Defendant’s immediate possession until he was removed from the taxi. Whether the bag was zippered shut or folded over, Defendant had an expectation of privacy in the bag. At no time did Defendant give Deputy Hedgecock permission to move the gym bag from its location in the back of the taxicab. When Deputy Hedgecock pulled the bag toward him, he effected a meaningful intrusion on Defendant’s possessory interests in the gym bag. Consequently, the gym bag was seized within the meaning of the Fourth Amendment.

The officers unlawfully entered defendant’s property and stayed there seven hours before the search warrant arrived. Removing anything from the application for the warrant that came from the illegal entry left enough for the warrant to issue. The first officer’s outlandish conduct in the illegal entry did not taint the warrant. Commonwealth v. Webster, 75 Mass. App. Ct. 247, 913 N.E.2d 890 (2009). An interesting view:

The defendant does not claim that the affidavit had an insufficient independent basis to support the search warrant. Instead, he contends that the fruits of the search should be suppressed because of egregious police misconduct. The misconduct consisted of illegally entering the apartment and staying there for approximately seven hours while waiting for the warrant, all the while restraining the occupants from movement and from answering the telephone. Officer Fabiano, in addition, searched the apartment before the warrant issued and discovered hidden pornographic videos and paraphernalia which he then discussed with Ms. Webster in front of her friend, and, in the words of the defendant’s counsel, “befouled before [Ms. Webster’s] eyes [her home with] the revolting spectacle of [his] spitting tobacco juice into the kitchen sink.”

Officer Fabiano’s behavior, in particular, was thuggish, wholly unworthy of a professional who was sworn to protect the citizens of Boston. The motion judge rightly observed that his behavior “should be reported to his superiors for their review. Whether he be disciplined or subject to additional training is a function of the police department. Even young officers should know a search without the warrant is a violation of the constitutional rights of the citizenry.”

The question, though, is whether the police misconduct warrants suppression of the mattress pistol even if, as the judge found, no fruits of the misconduct were used in the application for the search warrant and there was probable cause for the warrant’s issuance. Relying principally on United States v. Madrid, 152 F.3d 1034 (8th Cir. 1998), the defendant argues that it does.

. . .

Here, although the police misconduct was similar to, and in some respects more outlandish than, the misconduct in Madrid, the warrant application was sufficient after removing any product of the misconduct. Because the application was sufficient, we have no need to explore whether the inevitable discovery rule validates the search or whether that rule is inapplicable in the face of improprieties like those that plagued this case.

. . .

Here, the mattress pistol was not obtained in violation of the defendant’s constitutional rights, and its use as evidence had no adverse impact on the law’s integrity. Suppression of the mattress pistol, therefore, was not warranted. The remedy for unconstitutional police conduct lies in departmental discipline, a civil action, or, ultimately and if sufficiently durable and widespread, the voting booth.

Defense counsel’s unjustified language deriding the police in a motion to suppress gets a rebuke from the judge. This was a question of fact on whether the officers should be believed in whether it was a valid consent search, and the court believes the officers. United States v. Perez, 2010 U.S. Dist. LEXIS 3462 (E.D. Pa. January 15, 2010):

Relying on unjustified innuendo and the stylistic devices of aporia and rhetorical questioningN1 rather than evidence or logic, counsel for Defendant Juan Perez seeks to suppress the critical physical evidence gathered for use against Mr. Perez in this prosecution for violation of 21 U.S.C. § 841(a)(1),(b)(1)(D) Possession with Intent to Distribute Marijuana; 18 U.S.C. § 924(c)(1) Possession of a Firearm in Furtherance of a Drug Trafficking Offense; and 18 U.S.C. § 922(g)(1) Convicted Felon in Possession of a Firearm.

n. 1: In the Memorandum In Support of Motion To Suppress Physical Evidence there are at least 13 instances where gratuitous rhetorical questions are posed, apparently as a way to challenge or deride the opposing position. In other instances, the technique of aporia (i.e., expressing doubt–often feigned–by which the speaker appears uncertain as to what he should think, say or do) was employed. While the atypical pattern may provide some respite from conventional briefing, the Court finds both rhetorical devices–especially when so generously used without the benefits of any subtlety–ultimately distracting from the legal points Mr. Perez apparently hoped to make. By concentrating only on the issues raised (instead of on the overly argumentative manner by which they were addressed), the Court could understand full well Mr. Perez’s positions. The language style employed did not–and could not–improve the chances of success of those positions. Furthermore, the defense position is certainly not aided by the startling, unwarranted and unveiled inflammatory suggestion that the police officers in this case comported themselves with “striking similarity” to a notorious police officer who pled guilty to charges of lying under oath. See defense Memorandum In Support at p.1.

I’ve said it before: This is just unprofessional to stoop to this and the argument’s credibility is lost. Worse yet: It hurts the client.

“DEAR EDITOR: I am 8 years old.
“Some of my little friends say there is no exclusionary rule.
“Papa says, ‘If you see it in THE SUN it’s so.’
“Please tell me the truth; is there an exclusionary rule?

“VIRGINIA O’HANLON.
“115 WEST NINETY-FIFTH STREET.”

VIRGINIA, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe except [what] they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be judges’ or policemen’s, are little. In this great universe of ours man is a mere insect, an ant, in his intellect, as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, VIRGINIA, there is an exclusionary rule. It exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. Alas! how dreary would be the world if there were no exclusionary rule. It would be as dreary as if there were no VIRGINIAS. There would be no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.

Not believe in the exclusionary rule! You might as well not believe in fairies! You might get your papa to hire people to watch in all the courts in America to catch the exclusionary rule, but even if they did not see the exclusionary rule, what would that prove? Nobody sees the exclusionary rule, but that is no sign that there is no exclusionary rule. The most real things in the world are those that neither judges nor police can see. Did you ever see fairies dancing on the lawn? Of course not, but that’s no proof that they are not there. Nobody can conceive or imagine all the wonders there are unseen and unseeable in the world.

You may tear apart the baby’s rattle and see what makes the noise inside, but there is a veil covering the unseen world which not the strongest man, nor even the united strength of all the strongest men that ever lived, could tear apart. Only faith, fancy, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, VIRGINIA, in all this world there is nothing else real and abiding.

No exclusionary rule! Thank God! it lives, and it lives forever. A thousand years from now, Virginia, nay, ten times ten thousand years from now, it will continue to make glad the heart of civil libertarians.

Or will it, Virginia? for it is up to you, and me, and our brothers and sisters at the bar to keep the exclusionary rule alive so judges and police will respect the Fourth Amendment. Without an exclusionary rule, there will be no longer be a Fourth Amendment.

Apologies to Francis Pharcellus Church.

The defendant was arrested outside his house, and he wanted to get his shoes. The officers could follow him back into the house to get his shoes. United States v. Russell, 2007 U.S. Dist. LEXIS 44125 (D. Vt. June 15, 2007):

The facts as found credible by the Court, however, are clear that Defendant was lawfully arrested outside of his home. It follows, therefore, that the Troopers were permitted to accompany Defendant into his home to retrieve his shoes, even if the idea to enter the home for this purpose originated with the Troopers. See, e.g., United States v. Harness, 453 F.3d 752, 755-56 (6th Cir. 2006). Despite that Defendant now surely wishes he had risked the hazards of a shoeless night instead of leading the Troopers into his home, “a suspect’s poor choice does not render unconstitutional an officer’s objectively reasonable offer.” Id. at 756 (quoting United States v. Garcia, 376 F.3d 648, 651 (7th Cir. 2004)).

One officer was “not a beacon of credibility” but the other was, so the court sides with the police on whether the marijuana in defendant’s car could be smelled. United States v. Artis, 2007 U.S. Dist. LEXIS 44138 (E.D. Va. June 18, 2007):

After painstakingly reviewing the evidence and relevant testimony, the decision is admittedly difficult. In evidence, the Court has the testimony of two United States Park Police Officers’ that they smelled marijuana from the car, and that smell got stronger as Defendant stepped outside of the car. This testimony alone is sufficient to find probable cause, granted one important conclusion–that the Court finds this testimony credible. Militating against such a finding of credibility are the following two observations: First and most significant, the marijuana seized from Defendant was sealed inside a zip-lock bag, inside another sealed plastic bag, and inside the Defendant’s thick sweatshirt. Notably, the testimony at the hearing is that these bags contained no holes through which odor could more easily escape. Whether the odor of raw marijuana could penetrate two plastic bags and a thick sweatshirt so strongly as to be detected outside of the car gives the Court some hesitation. Unfortunately, neither Government nor Defendant introduced any expert testimony on the subject, which would have undoubtedly aided the Court in its decision. In addition, Officer Gordon’s testimony was not necessarily a beacon of credibility, judging from the lack of certainty in his answers, as well as his tone of voice, inflection, and cadence.

Nevertheless, the Court is given significant reassurance by the testimony of Officer Miller, who provided meaningful corroboration to Officer Gordon’s testimony. His detailed account of the stop, the interactions of the officers with Ms. Thomas and Mr. Artis, and the circumstances surrounding the arrest sufficiently align with Mr. Gordon’s account of the same. Taking these two stories together, although not perfectly parallel (as separate accounts rarely are), convince the Court that the officers’ testimony is worthy of credence.

Inmate plaintiff who collapsed in his housing unit and was taken to the hospital unit could have urine forcible drawn. He first came to when given a drug to counteract an OD on opiates, and he was told that they needed a urine or blood sample. He asked for a search warrant and was told that they did not need one because he was an inmate. He passed out again, and they inserted a catheter to retrieve his urine for a drug test. The search was reasonable. Fuller v. Washington County Hosp., 2006 U.S. Dist. LEXIS 96359 (D. Md. May 23, 2006).*

Forced surgery to find a cell phone in plaintiff prison inmate’s rectum was shown to be an unreasonable search. It was not just a “medical procedure.” Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009):

1. Were the Procedures Performed at the Medical Center “Searches” Within the Scope of the Fourth Amendment?

To determine whether the rectal examinations and the exploratory surgery implicated the Fourth Amendment, we must first determine whether they constituted searches for evidence or legitimate medical procedures. As will be discussed further below, it is impossible to reconcile the allegations in the complaint with the district court’s conclusion that these procedures were “medical decisions made exclusively by physicians.” According to the complaint, the procedures were carried out at the insistence of correctional officials for the purpose of finding a cell phone in plaintiff’s rectum.

The procedures were the direct culmination of a series of searches that began when a metal detector used to scan plaintiff’s person gave a positive reading. The complaint describes the surgery as “medically unnecessary,” and explains circumstances supporting that claim, namely that plaintiff had two normal bowel movements before the searches were conducted, that Dr. Roe III examined him upon arrival at the hospital and found him to be asymptomatic, and that several lab tests ordered by Dr. Roe III were found to be “within normal limits.” Because the procedures described in the complaint were searches for evidence, they are properly analyzed under the framework of the Fourth Amendment.

2. Did the Searches Violate the Fourth Amendment?

“The applicability of the Fourth Amendment turns on whether ‘the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy’ that has been invaded by government action.'” Hudson v. Palmer, 468 U.S. 517, 525 (1984) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979) (other quotation marks omitted)). In the prison context, prisoners are “accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.” Id. at 523. We have recognized that a limited right of bodily privacy against searches is not incompatible with incarceration. Cookish v. Powell, 945 F.2d 441, 446 (1st Cir. 1991) (per curiam) (“[S]ome Fourth Amendment protection [i]s available to inmates as to their persons.”). A reviewing court must “‘balanc[e] the need for the particular search against the invasion of personal rights that the search entails.'” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). Mindful of this principle, we analyze the rectal exams and the surgery separately, concluding that the rectal exams did not violate plaintiff’s Fourth Amendment rights, but the surgery did.

Defense counsel was not shown to be ineffective for not negotiating a conditional plea. There is no right to a conditional plea, and the government would have had to have agreed with it. Defendant never suggested to defense counsel that he wanted to appeal. United States v. Carvajal-Mora, 2009 U.S. Dist. LEXIS 118523 (N.D. Okla. December 21, 2009).*

Defendant’s search argument was belatedly raised ten years late in a post-conviction IAC claim that should have been raised earlier. It is defaulted. State v. Billiter, 2009 Ohio 6788, 2009 Ohio App. LEXIS 5698 (5th Dist. December 22, 2009).*

The description of a tall bald man carrying an assault rifle was sufficiently correct to show reasonable suspicion. While defendant was not carrying an assault rifle, he had a container that could have contained a broken down assault rifle. State v. Watson, 2009 Ohio 6713, 2009 Ohio App. LEXIS 5631 (3d Dist. December 21, 2009).*

Defendant’s traffic offense of an illegal turn justified his stop. State v. Melone, 2009 Ohio 6710, 2009 Ohio App. LEXIS 5637 (11th Dist. December 18, 2009).*

No hearing was required on defendant’s motion to suppress a search warrant for lack of probable cause because it can be determined on the papers, and there was probable cause for this search. United States v. Riley, 2009 U.S. Dist. LEXIS 119198 (D. Nev. November 23, 2009).*

Where the offense alleged in the affidavit for search warrant was harboring illegal aliens for commercial advantage in a complex scheme, there was reason to believe there would be business records kept there. United States v. Mireles, 2009 U.S. Dist. LEXIS 119107 (W.D. N.Y. November 23, 2009) (USMJ R&R).*

Defendant still had an expectation of privacy in his shared folder file of his computer from police entry, despite the fact that others could access it on a peer to peer sharing where the government did not enter the computer through peer to peer sharing. The government also showed probable cause to search individual files that were identified. United States v. Beatty, 2009 U.S. Dist. LEXIS 121473 (W.D. Pa. December 31, 2009)*:

However, none of the cases cited by the Government stand for the proposition that an individual running P2P software thereby loses his Fourth Amendment “standing” to challenge a search which involves entry into his home and the seizure and subsequent search of his entire computer. Were that the case, Agent Brenneis could have entered the Defendant’s home and downloaded from his computer any shared files without having first obtained any warrant at all. In short, even if the Defendant suffered no Fourth Amendment intrusion by virtue of Trooper Pearson’s conduct in remotely accessing certain shared computer files, the Defendant nevertheless retained a reasonable expectation of privacy in his computer and his home such that he possesses “standing” to challenge the merits of the subject search.

Defendant was followed to a store by a bail bondsman looking to arrest him on outstanding warrants. The bondsman saw a police officer outside the store and enlisted his aid in the arrest. It turned out that the defendant was not the man wanted but he exactly matched the description the bondsman had developed, down to color of shirt and cornrows in his hair. The officer approached defendant and asked his name three times, which he refused to provide, and then he turned to flee, and he was Tasered. After the officer found out he was the wrong guy, he asked why he ran” “I’ve got some sh*t on me.” That led to a search incident, which was valid. 240 month sentence for crack possession affirmed. United States v. Bourrage, 08-3823 (8th Cir. January 7, 2010) (unpublished):

Here, Warner was carrying papers as she approached Sergeant Voigts. She told him that a man inside the grocery store named Rickman was wanted on misdemeanor and felony warrants and she provided a brief description of Rickman. Sergeant Voigts “could assess [Warner’s] credibility because the information was provided in person.” See United States v. Carpenter, 422 F.3d 738, 744 (8th Cir. 2005); see also United States v. Kent, 531 F.3d 642, 648-49 (8th Cir. 2008); United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991) (stating that “a face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false”). Moreover, if the tip turned out to be false, Warner could be charged with knowingly providing false information to a police officer. See Iowa Code § 718.6(1); see also Adams v. Williams, 407 U.S. 143, 146-47 (1972). Nevertheless, Warner not only provided the information in person but accompanied Sergeant Voigts into the store to search for the suspect. After searching the store with Sergeant Voigts, Warner suddenly indicated that the suspect was in the store when she said either “There he is” or “There they go.” Under these circumstances, we hold that the district court did not err in concluding that Sergeant Voigts had a reasonable suspicion that Rickman was wanted in connection with a completed felony.

“Keith’s motion to suppress, though well-argued, is not well-taken.” There was plenty of reasonable suspicion to stop him, and his drug activities raised a sufficient nexus to weapons that a frisk would be justified. United States v. Keith, 2010 U.S. Dist. LEXIS 795 (N.D. Ohio January 6, 2010).*

Defendant had standing to challenge police entry into the premises although he was considered by the government to be a squatter. He was invited in and stayed in one room. While he had standing, his flight out the window leaving a backpack behind was an abandonment. United States v. Martin, 2010 U.S. Dist. LEXIS 2962 (D. Utah January 14, 2010)*:

Based on the above, the Court finds that this case is distinguishable from the types of trespasser/squatter cases cited by the government. Rather, the Court finds that Defendant’s status is much more akin to that of an overnight guest than of a trespasser or squatter. The Supreme Court, in Minnesota v. Olson, recognized that a person’s “status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.” As set forth above, Defendant was invited to stay at the home by one with the apparent authority to do so, he was given a room to stay in, and he moved his personal possessions into that room. As to that room, the parties have stipulated that Defendant would testify that he believed that: his bedroom was his private domain, he had the right to exclude others from the bedroom, and others would not enter the bedroom without his express or implied consent. Based on these things, the Court finds that Defendant had a reasonable expectation of privacy and has the ability to challenge Deputy Gamble’s entry into the home and the bedroom he occupied, in particular.

Defendant was on a CBP watch list as a suspected child pornographer. When he arrived at DFW from an overseas trip that had no suspicion of being related to child pornography, he was first let through then detained after clearance and his laptop was seized. His computer was shipped to Detroit for analysis, and the District Court finds that this violated United States v. Place. United States v. Laich, 2010 U.S. Dist. LEXIS 4931 (E.D. Mich. January 20, 2010):

Even if the Court deemed this detention to be a valid exercise of the Government’s police powers, there was no legal basis to support the permanent seizure of Laich’s laptop computer. When the CBP officers directed Laich to return to the inspection area, they did not conduct an additional search of his laptop. Rather, they detained him and retained his computer for approximately ninety minutes and, thereafter, mailed the seized property to Buloushi in Detroit. Although the decision by the Supreme Court in United States v. Place, 462 U.S. 696,701-707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) may have provided the officers with the legal authority to briefly seize Laich’s laptop to investigate the circumstances which aroused their reasonable suspicion of a criminal wrongdoing, such an investigative detention was not properly limited in its scope here. In the absence of a demonstrated probable cause, the Government’s decision to permanently seize Laich’s property in Dallas and transport it hundreds of miles to another jurisdiction for further search was unreasonable by Fourth Amendment standards.

On eff.org: FBI Replaced Legal Process with Post-It Notes to Obtain Phone Records discussing how the government respects privacy interests in emergency requests for phone records, and the phone companies let them.

The DOJ Office of Legal Counsel has also come up with a legal theory which it is keeping secret:

The OIG report discusses, in heavily redacted form, a new legal theory that the FBI now asserts allows telecoms to divulge phone records without legal process. Despite the Obama Administration’s alleged commitment to openness and transparency, the OIG report redacts the basis for this legal theory, even redacting the statutory section number on which the FBI says it can rely. (hyperlink in original)

Officers pulled over defendant who was, to them, a regular, and that knowledge formed the basis of reasonable suspicion once stopped. In plain view were baggies for storing crack. (Sort of: His history with drugs and weapons was such that his merely being on the street is RS he is carrying something. [Technically not a good argument under Terry, officer.]) During the stop, defendant was excessively nervous. [If he’s a regular, why would be he nervous unless he was carrying?] The patdown was reasonable and not excessive. United States v. Johnson, 2010 U.S. Dist. LEXIS 7001 (W.D. Pa. January 27, 2010)*:

Sealock recognized defendant as the driver, having become familiar with him from numerous past incidents defendant had had with the police in Aliquippa, including several involving firearms. Incident Reports from these previous encounters were admitted as Government Exhibits 1, 3, 4 & 5. Because of this familiarity, Sealock had concerns about his safety and as to whether defendant may have been armed.

Sealock testified that defendant appeared extremely nervous and that he was sweating and stuttering. Defendant was unable to produce a valid driver’s license, only a picture identification card. Sealock observed an open box of sandwich baggies on the floor of the passenger side of the vehicle, which in light of his training and experience he knew to be used sometimes in the packaging of narcotics.

Defendant had been stopped with 400 lbs of marijuana and he agreed to help set up the guy he was taking it to. His text messages were partially innocent in tone, but they were corroborative of the CI and PC. United States v. Laidlaw, 2010 U.S. Dist. LEXIS 6439 (D. Conn. January 27, 2010).*

Defendant was suspected of paying juveniles to engage in sex with each other and him and photographing it, and other juveniles with knowledge were citizen informants. This apparently was common knowledge among a group of young people, and the police found out. The police were told that defendant used text messages on his cell phone to communicate with them. Using a court order rather than a warrant, officers obtained his text messages from Sprint, confirmed the text messages, and then got a search warrant for his house, finding the pictures. The use of a court order rather than a warrant violated the Stored Communications Act, but suppression was not the remedy. As for the search of defendant’s house, there was probable cause even without the text messages based on the detailed reports of the citizen informants. State v. Rivera, 2010 Ohio 323, 2010 Ohio App. LEXIS 256 (12th Dist. February 1, 2010):

[*P24] According to the record in this case, Detective Woodall obtained appellant’s text message records that were less than 180 days old by using a court order rather than a warrant as required by Section 2703(a), Title 18, U.S.Code. Further, Detective Woodall did not provide notice to appellant as required by Section 2703(b)(1)(B)(ii), Title 18, U.S.Code. We find these to be violations of the Act. However, as we indicated above, Congress included several remedies for violations of the Act but did not include exclusion of as a remedy. Further, despite having the opportunity to do so, several courts have declined to hold that exclusion is a remedy for a violation of the Act. Accordingly, this court does not find it appropriate to permit exclusion as a remedy for violations of the Act. Moreover, we find it was objectively reasonable for Detective Woodall to rely on the Act being constitutional, as the Act has not been found to be unconstitutional, and Detective Woodall obtained the court order from a neutral and detached magistrate. Therefore, we find that the exclusionary rule is inapplicable to the evidence obtained in violation of the Act.

[*P25] To benefit from the protection provided by the Fourth Amendment, appellant must demonstrate that he suffered a violation of a constitutional right. At best, appellant has demonstrated that he suffered a violation of a statutory right. Because appellant has not demonstrated any valid privacy interest that invokes Fourth Amendment protection and the remedy he seeks for a nonconstitutional violation is impermissible, we need not determine whether the Act is facially unconstitutional. See Cray.

[Note: If the citizen informant’s information was of sufficient quality to get a search warrant for the home, and by all accounts it certainly was, if that same information was used to get the court order for the text messages, would not the court order be a de facto warrant for the text messages, and not just be called a “search warrant”? If so, defendant’s Fourth Amendment rights were adhered to, and the statutory violation was not sufficiently egregious to warrant suppression.]

Reasonable suspicion for defendant’s stop was shown by the fact that the defendant’s apparent confederate was doing hand-to-hand drug deals and coming back to defendant’s car, giving the appearance of getting more or splitting the proceeds. “While Robinson’s arguments may support a juror’s reasonable doubt, the Court finds that the agents have demonstrated that a prudent person would have concluded that there was a reasonable probability that Robinson was involved in illegal activity. Considering the totality of the facts and circumstances, the Court finds that the agents had probable cause to believe Robinson was involved in Glenn’s selling of crack cocaine to the CI.” United States v. Robinson, 2010 U.S. Dist. LEXIS 7392 (W.D. Ky. January 28, 2010).*

Opting for a Legislation Alternative to the Fourth Amendment Exclusionary Rule by Samuel Estreicher and Daniel P. Weick, both of NYU Law School, University of Missouri at Kansas City Law Review, Vol. 78, No. 4, Summer 2010, on SSRN. Abstract:

Our proposal for an alternative to the exclusionary rule differs from others in that while damages actions play an important role, it proposes a regulated experiment–crafted and enacted into law by Congress pursuant to its Section 5 power to enforce the Fourteenth Amendment–whereby federal, state and local law enforcement agencies can operate free of the exclusionary rule if they develop internal mechanisms to deter police misconduct. The central focus would be on developing systematic police compliance with the Fourteenth Amendment rather than addressing individual violations.