In dissenting from denial of rehearing en banc in United States v. Lemus, 08-50403 (February 18, 2010) (panel decision of September 22, 2009 here) Chief Judge Kozinski laments the near death experience of the Fourth Amendment where the police got to conduct a plain view of the interior of a house without reason. In short, plain view encourages violations of the Fourth Amendment.

This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency—in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun “in plain view”—stuck between two cushions of the living room couch—and we reward them by upholding the search.

Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the “government bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement.” United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985). The place where warrantless searches are deemed “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980).

Government encroachment into the home, which I lamented three years ago in United States v. Black, 482 F.3d 1044, 1045-46 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), has continued, abetted by the creative collaborators of the courts. This is another example: The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus’s home after he was arrested just outside it. The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.

. . .

3. How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plain view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it.

This is a case in point. While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in “plain view.” So, the detectives went in and, while there, Diaz thought he saw “something sticking out from the couch” that “looked like the butt of a weapon.” Lemus, 582 F.3d at 960. Longoria then lifted the couch cushion “to make sure” and found a gun. Id. at 961. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant—if they could—based on what they saw, before rummaging through the couch?

. . .

Plain view encourages the police to find every possible loophole to get themselves into a place where they can take a good look around, discover some evidence and then get a warrant to seize what they already know is there. This tiresome two-step is the new dropsy evidence. As often as not, the chance of hitting the plain-view jackpot is what drives the police into a man’s house, his doctor’s office or his ISP. Carefully drawn limitations in a warrant and narrow justifications for exceptions to the warrant requirement are becoming afterthoughts. “Police officer safety,” the narrow justification in Buie, had nothing to do with this search. Gathering evidence did. We should not abet such skirting of the Fourth Amendment by the police; it only encourages them to do worse.

See also Courthouse News Service, ABAJournal, WitnessLA.com, Last Blog on Earth.

It’s hard to believe that only one other judge signed on to this, and 22 remained silent, thereby encouraging more plain view subterfuge.

An Amtrak ticket agent who reported a suspicious traveler to the police under a drug courier profile was an informant whose identity was not subject to disclosure under Roviaro and McCray. The police acted on it after confirming the details. United States v. McKenzie, 2010 U.S. Dist. LEXIS 13362 (D. N.M. January 28, 2010).

Court erroneously shifts burden of persuasion to the defendant to prove that the warrantless search of his car was a violation of the Fourth Amendment. United States v. Boyce, 2010 U.S. Dist. LEXIS 13342 (N.D. Ill. February 16, 2010)*:

The court has now held numerous evidentiary hearings in this case, reviewed multiple briefs submitted by the parties, and listened to the testimony of numerous witnesses. Boyce himself was the least credible witness throughout the proceedings. On the other hand, the testimony of Deshaies, Reichart and even Moore (who, of course, was called by the defense) was all very credible. While Boyce managed to create factual disputes in this case pertaining to the traffic stop, the court concludes that he has failed to carry his burden of proving by a preponderance of the evidence that the conduct of Officer Deshaies was violative of Boyce’s Fourth Amendment rights in any way. Boyce was afforded ample opportunity to present his arguments, but he failed to present any credible evidence to support those arguments, or any credible evidence to refute the version of events recounted by Deshaies. For all of these reasons, Boyce’s motion to suppress evidence is denied.

Defendant’s strip search incident was based on reasonable suspicion that drugs would be found hidden in defendant’s buttocks because of his ten year drug history and being known to carry a gun. The search occurred in an interrogation room and not the jail. United States v. Derrick, 2010 U.S. Dist. LEXIS 13551 (W.D. Pa. February 17, 2010):

Strip searches are considered invasive, but are not per se unconstitutional. Police do not have indiscriminate authority to conduct strip and visual body cavity searches. See, Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991). The test to determine if a strip search violates the Fourth Amendment is whether the strip search is reasonable under the circumstances. Bell v. Wolfish, 441 U.S. 520, 558-59 (1979).

“No Supreme Court case discusses the constitutionality of strip searches incident to arrest, which appear to fall between the ‘full searches’ considered by Robinson and the ‘intrusions beyond the body’s surface. …” Allison v. GEO Group, Inc., 611 F. Supp.2d 433, 442 (E.D. Pa. 2009). However, several Circuit Courts have found “that to be reasonable under Wolfish, strip … searches must be justified by at least a reasonable suspicion that the arrestee is concealing contraband. …” Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997).

Officers’ suspicions must be based on specific objective facts and rational inferences “that they are entitled to draw from those facts in light of their experience. The standard requires individual suspicion, specifically directed to the person who is targeted for the strip search.” Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir. 2008)(quoting Varrone v. Bilotti, 123 F. 3d 75, 79 (2d Cir. 1997).

Defendant’s stop was based on the fact his car was quite similar to the car involved in a string of robberies of convenience stores. The detention lasted 25-30 minutes while officers tried to get pictures of the robbers to the scene so they could be compared. A frisk of the car for a gun led to a drug dog alert, too. Given that this case involved robberies, the police get the discretion to take a little time to determine whether the occupant was involved in them. United States v. Cabey, 2010 U.S. Dist. LEXIS 13517 (M.D. N.C. February 17, 2010):

In the present case, the interest in crime prevention and public safety were pressing. Twelve armed robberies of convenience stores occurred within the last month. To Cabey’s bad luck, the vehicle Gerringer observed on the video images only hours earlier stuck in his mind because it was similar to that driven by his girlfriend. Thus, Gerringer testified that he believed Cabey’s vehicle to be the suspect’s car from the August 22 robbery. This was not just a hunch, but was based on detailed, articulable reasons. But because he did not have the photos with him, Gerringer wanted to corroborate his belief and called for them to be delivered to the scene. The stop does not rest solely on the similarities between Cabey’s vehicle and that of the August 22 robbery, however. Here, Gerringer also observed Cabey in conduct consistent with casing a convenience store for a robbery and was aware that the August 22 robbery suspect was dangerous because he used a handgun.

Thirty to thirty-five minutes elapsed from the initial stop until the August 22 images arrived. Though the exact timing of events was not established, it is clear that Sgt. Velez responded to the scene prior to the canine unit and stated that the images arrived about twenty to twenty-five minutes later. Corporal Edmonds testified that she arrived approximately five minutes after receiving the call to respond and performed the canine sniff prior to the arrival of the images. Thus, the canine sniff providing probable cause occurred sometime within the overall 30 to 35 minute period. This is certainly consistent with the time limits found to be constitutional in other Terry stop cases. See, e.g., Branch, 537 F.3d at 338 (finding 30-minute detention based on traffic stop and subsequent articulable suspicion reasonable); United States v. McFarley, 991 F.2d 1188, 1193-94 (4th Cir. 1993) (finding 38-minute detention in order to arrange for canine sniff not unreasonable); United States v. Manbeck, 744 F.2d 360, 375-76 (4th Cir. 1984) (finding 45-minute to one-hour detention not unreasonable).

There is no evidence that the delay was any longer than necessary for diligent police officers to pursue the investigation by having the images of the August 22 robbery delivered to the scene. Indeed, the Terry detention was less than that because the discovery of the firearm under the vehicle armrest during the canine sniff provided probable cause for Cabey’s arrest. See McFarley, 991 F.2d at 1193-94. Given the purpose for the detention, law enforcement’s interest in solving the ongoing armed robbery spree, and the need to protect the public, the court finds the delay until the canine sniff disclosed the firearm objectively reasonable based upon the totality of the circumstances.

[Note: Now, imagine being able to instantly transmit pictures to the patrol car’s computer screen or to the officer’s cell phone by SMS. The police already have the capability. It just doesn’t show in the cases that much.]

On PhillyBurbs.com is this: The government has my DNA?

… I learned the government has access to my DNA.

Yup. There you go, out in plain sight. According to an article by CNN (aptly named “The government has my baby’s DNA”), states have mandated that, when a baby is born, blood is drawn and tested for 28 to 54 different genetic diseases.

I understand that the state is trying to keep our children safe by giving us the heads-up about possible genetic diseases, but it would be nice if that DNA was kept inside the holding area, or, even better, destroyed after the testing and not deployed to our health care providers.

PA: School district sued for using laptop cameras to spy on students

A Pennsylvania school district has been sued for allegedly giving its students laptops and then spying on its students at home through cameras on the laptops. See Lower Merion School District sued for cyber spying on students:

Lower Merion School District officials brag that they give every one of their 1,800 high-schoolers laptop computers to “ensure that all students have 24/7 access to school-based resources.”

Instead, they ensured they got 24/7 access to students’ private lives by secretly installing webcams they remotely control to spy on teens and their families at home, according to a federal, class-action lawsuit filed this week in Philadelphia.

The suit alleges the covert cameras violate everything from the Fourth Amendment to wiretapping, electronic communications and computer fraud laws.

A link to the suit is here. The story and the pdf of the suit are on Philly.com.

MA: Drug dog sweep of school

In Pemroke, MA, police used drug dogs to conduct a sweep of a school.

The following is a press release from the Center for Constitutional Rights:

New NYPD Data for 2009 Shows Significant Rise in Stop-and-Frisks: More than Half Million New Yorkers Stopped Last Year

Racial Disparity Increases in Stops With 87 Percent of People Stopped Black and Hispanic

February 17, 2010, New York, NY –- The Center for Constitutional Rights (CCR) found significant racial disparity in the fourth quarter data for 2009 on stop-and-frisks just released by the New York City Police Department. CCR, which represents victims of the NYPD’s racially discriminatory stop-and-frisk policies in a class action lawsuit, will receive more comprehensive data than the summary numbers released to the City Council yesterday and will provide those results next week.

Meanwhile, the preliminary numbers indicate a nearly 10 percent rise in the number of New Yorkers being stopped by the police, with the racial disparity of the stops climbing as well. In 2009, a record 575,304 people were stopped, 87 percent of whom were Black and Hispanic, while from 2005 to 2008, approximately 80 percent of total stops made were of Blacks and Latinos, who comprise approximately 25 percent and 28 percent of New York City’s total population, respectively.

Said CCR Executive Director Vincent Warren, “2009 was the worst year for stop-and-frisks on record. For many kids, getting stopped by the police while walking home from school has become a normal afterschool activity, and that’s tragic. The public is demanding constructive change and an end to racially-biased policing by the NYPD.”

The City often claims the racial disparity in stops is accounted for by the racial breakdown of crime suspects, but the data from the first three quarters of 2009 (fourth quarter detail unavailable at this time) reveal that “fits relevant description” is the reason for a stop only 15 percent of the time. Far and away the most often cited reason for a stop by the police is the vague and undefined, “furtive movements” (nearly 50 percent of all stops), and “casing a victim or location” (nearly 30 percent of all stops). Also listed are “inappropriate attire for season,” “wearing clothes commonly used in a crime,” and “suspicious bulge,” among other boxes an officer can check off on the form.

Only 1.3 percent of the year’s stops resulted in the discovery of a weapon, and only 6% of the stops resulted in arrests.

Its July 2009 report is here (broken link in release).

A marina in Puerto Rico was the functional equivalent of the border where there was a high degree of probability that the boat had not changed between being in international waters and arriving in port. United States v. Andujar-Aponte, 2009 U.S. Dist. LEXIS 124959 (D. P.R. November 10, 2009)*:

The first issue is whether the agents in this case had “reasonable certainty” or “a high degree of probability” that a border was crossed. “The sea boundary of the United States territory is a marine league (three geographic miles) from shore, Cunard S.S. Co. v. Mellon, 262 U.S. 100, 122, 43 S. Ct. 504, 67 L. Ed. 894 (1923), and comprises a border for fourth amendment purposes.” United States v. Victoria-Peguero, 920 F.2d at 80 (citing United States v. Zurosky, 614 F.2d at 787 n.7) (“[T]he three mile limit [off the U.S. coast] establishes the boundary of the territorial sea and is regarded as the border.”)). Here, the CBP and MIA initially spotted the Black Sea “outside U.S. territorial waters,” that is, over twenty-four miles beyond the shore. … At least one of the crew members told CBP officers that the men had been “fishing approximately twenty five (25) miles offshore.” … Defendant does not deny in his brief that the vessel was over three miles beyond the coast. Finally, CCSF intelligence indicated that the Black Sea “was going to be utilized to smuggle narcotics into Puerto Rico.” … The information as a whole was sufficient to establish a “high degree or probability” and even “reasonable certainty” that the Black Sea had crossed a border.

It is also evident that CBP agents had a reasonable certainty that no change in the vessel occurred between the time it crossed the border and the time the search was conducted. ….

A challenge to the Wisconsin court commissioner issuing a search warrant utilized in a federal prosecution fails. While no Wisconsin court has considered the constitutionality of court commissioners, they are longstanding in the state, even after the unification of the court system in 1977. Under the Fourth Amendment, the court finds no basis to suppress. United States v. Diaz, 2010 U.S. Dist. LEXIS 12584 (E.D. Wis. January 15, 2010):

So precisely what is the constitutional basis for court commissioners? Despite having existed for more than three decades since the 1977 amendment, it does not appear that this question has yet been answered by, nor even posed to, any Wisconsin court. The resolution of this novel question would require an analysis of Wisconsin constitutional law and could have significant impact upon the longstanding judicial practices in the state. In the interest of comity, questions of this import should generally be reserved to the state rather than resolved by a federal court. It is the view of this court that it is inappropriate to delve into this issue when its resolution is not necessary to the question currently before this court. The question before this court is a narrow one: does the search withstand scrutiny under the Fourth Amendment?

The Fourth Amendment imposes two requirements upon searches and seizures: (1) the search and seizure must be reasonable; and (2) “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment does not dictate who may issue a search warrant. As the Supreme Court noted:

The substance of the Constitution’s warrant requirements does not turn on the labeling of the issuing party. The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime. Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.

Shadwick v. Tampa, 407 U.S. 345, 350 (1972); see also id. at 351 (“We find no commandment … that all warrant authority must reside exclusively in a lawyer or judge.”). Although individuals involved with the prosecution of a case, such as prosecutors or police officers may not issue warrants, see Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971), other “competent personnel” may do so provided they are “neutral and detached.” Shadwick, 407 U.S. at 352-53. For example, in Shadwick, 407 U.S. at 351, the Supreme Court found no constitutional defect in a warrant issued by a municipal court clerk.

In this case, the Wisconsin legislature and judiciary have approved the position of court commissioners as well as the practice of court commissioners issuing search warrants. See Wis. SCR 75.02; Wis. Stat. § 757.69(1)(b). There is no allegation that court commissioners lack the capacity to determine probable cause, see Shadwick, 407 U.S. at 351, nor does Diaz contend the warrant was not supported by probable cause. Further, there is no allegation that the court commissioner was not neutral and detached. Thus, the court finds no basis to conclude that the search that occurred here was in violation of the Fourth Amendment.

Further, the court finds that application of the exclusionary rule under these circumstances would not be appropriate. Applying the exclusionary rule imposes substantial social costs and thus its application should be limited to situations “where its remedial objectives are thought most efficaciously served,–that is, where its deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006) (internal citations and quotation marks omitted). Thus, suppression of evidence should occur only as a last resort. Id.

The police proceeded as courts prefer; prior to conducting the search, a neutral and detached officer of the court was presented with an affidavit that established that there was probable cause to believe that evidence of a crime would be found in a particular location. Upon finding probable cause, a warrant was issued. Therefore, suppression of evidence is not appropriate in this case. Accordingly, the court shall recommend that Diaz’s motion to suppress be denied.

Section 1983 blog has been added to the side bar. You may have noticed that I don’t include § 1983 cases from the U.S. District Courts unless something about it grabs my attention. There are just too many to cover. Instead, I post them when decided on appeal.

While officers had probable cause to believe that defendant had small quantities of marijuana for personal use, they lacked sufficient evidence of trafficking to get the search warrant for defendant’s computer. Child pornography was found on the computer. Tennessee has not adopted the good faith exception. State v. Bearden, 2010 Tenn. Crim. App. LEXIS 106 (February 11, 2010).

A flyover of defendant’s property apparently did not produce a view of marijuana growing, so the officers entered defendant’s curtilage and found marijuana plants growing in buckets. Then they attempted a knock-and-talk, but defendant was not home, and they called him twice trying to locate him to get consent. The consent obtained was not sufficiently attenuated from the illegal entry, and the search is suppressed. State v. Blackwell, 2010 Tenn. Crim. App. LEXIS 98 (February 10, 2010).*

Questioning the defendant about drinking and driving at the scene of a one vehicle accident was apparently lawful under Berkemer, so there was no plain error. State v. Brooks, 2010 Tenn. Crim. App. LEXIS 114 (February 11, 2010).*

A constable who entered defendant’s house under a writ issued by a local court to remove him and evict him from the premises was lawfully present when he saw an SKS and marijuana. A protective sweep of the premises was within the initial authority to enter. United States v. Curlin, 2010 U.S. Dist. LEXIS 12248 (S.D. Ind. February 10, 2010).

A dog on the loose call [for which the court could not resist the temptation of saying “Who let the dogs out?”] justified a stop of defendant’s vehicle. State v. Pals, 2010 Iowa App. LEXIS 75 (February 10, 2010):

This outcome corresponds with common sense. The dogs had been creating a disturbance in town. As far as Wubben could tell, one of them had not yet been caught and was still running free in violation of the ordinance. Could Wubben pull over the truck driven by the dogs’ owner to make sure the situation was being addressed? We believe so. This result clearly strikes a proper balance between public welfare and personal intrusion. If we adopted Pals’s view of the law, an officer confronted by dogs running free in violation of an ordinance could not adopt the most expedient course of action of stopping the owner’s vehicle and asking him to round up the dogs, but instead could only deliver a citation to his home.

Detention of persons in a university lab for decontamination after suspected biological terrorism attack in a suspicious package did not state a claim for relief. They had qualified immunity. Allison v. Michigan State University, 2005 U.S. Dist. LEXIS 47019 (W.D. Mich. August 31, 2005):

Plaintiffs contend that there was no real emergency other than the one created by Defendants’ own gross negligence and failure to assess the facts before acting. The evidence reveals, however, that Defendants responded to the following evidence: there was a suspicious looking letter that had been resealed; the person who opened the letter immediately felt a burning sensation in her throat; the letter was from an individual associated with an animal rights activist group; the sender was a pharmacist with access to chemical contaminants; the FBI had concerns about and was watching the sender; additional individuals also reported burning in their throats; the hospital required decontamination as a prerequisite to admission; this occurred shortly after September 11, 2001, during the wave of national anthrax related incidents; and this occurred against the background of a history of animal rights violence at MSU. Based upon this undisputed evidence, Defendants had reason to believe that they were faced with a biological or chemical hazard emergency.

[Note: Even if they were wrong, talk about special needs …. The plaintiffs tried to put a negligence claim in there, too, which always fails under § 1983. This case just came through on Lexis.]

Testimony about the issuance of the search warrant is excluded at trial. United States v. Rodgers, 2009 U.S. Dist. LEXIS 99605 (W.D. Mich. October 26, 2009):

The government contends that the evidence of the warrant is necessary to prevent jury confusion regarding the details and timing of the investigation. According to the government, agents obtained consent from the owner of a residence to conduct the search of that residence, but did not immediately search a locked room used by Defendant until they obtained a warrant.

The probative value of evidence regarding the warrant depends upon how it arises. Generally, the Court will permit limited references to the search warrant if given as part of an officer’s testimony for the purpose of explaining his course of conduct; however, the Court generally will not permit testimony as to the procedures for obtaining the warrant, or that a judge approved the warrant, unless the validity of the search and/or the warrant is in issue at trial.

The USMJ’s conclusions on the credibility of the witnesses is supported by the evidence, so it is affirmed. United States v. Hudson, 2009 U.S. Dist. LEXIS 99673 (S.D. Fla. October 26, 2009).*

Defendant’s stop by a patrol officer was made at the request of a narcotics officer, and it was without reasonable suspicion. State v. Estabillio, 121 Haw. 261, 218 P.3d 749 (2009):

The evidence before the circuit court at the suppression hearing relating to Vice-Officer Prudencio’s reasonable suspicion that Estabillio was in the possession of drugs was that Vice-Officer Prudencio (1) had information from a confidential informant that Estabillio was a mid-level drug dealer and (2) observed Estabillio to “be very nervous.” Inasmuch as no evidence was presented during the suppression hearing regarding the identity or previous reliability of the “confidential informant,” the tip that Vice-Officer Prudencio garnered from such informant was akin to an anonymous tip. The ICA has previously held that “an anonymous tip that [the d]efendant ‘might have [drugs] in his possession'” was not sufficient to establish reasonable suspicion for an investigatory detention. Kachanian, 78 Hawai’i at 480-81, 896 P.2d at 936-37. Thus, Vice-Officer Prudencio’s statement that a confidential informant had provided him with such information was insufficient to form the basis for a reasonable suspicion.

Additionally, nervous, evasive behavior can be a pertinent factor in determining reasonable suspicion, see Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); however, “unless it is unusually severe or persistent, or accompanied by other, more probative, grounds for reasonable suspicion, it is of limited significance in determining whether reasonable suspicion exists.” United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2005) (citations and internal quotation marks omitted). In our view, Vice-Officer Prudencio’s observation that Estabillio was “very nervous,” without more, “is of limited significance in determining whether reasonable suspicion exists.” Id. We, therefore, conclude that Vice-Officer Prudencio’s separate drug investigation was not supported by reasonable suspicion. Consequently, the investigation constituted an unconstitutional seizure. Accordingly, all of the evidence recovered as a result of the unconstitutional seizure must be suppressed as fruit of the poisonous tree.

Pro se defendant who went to trial thinking he had to do so to preserve his computer search claim in a child porn case was still entitled to a two point reduction in his base offense level for acceptance of responsibility. It is apparent he told the truth at the suppression hearing. His argument that the government did not prove its case at trial did not prohibit his receiving acceptance. United States v. Burns, 2009 U.S. Dist. LEXIS 100642 (N.D. Ill. October 27, 2009).

The use of handcuffs during a Terry stop did not make it an arrest. The officer suspected others were involved, and he handcuffed the defendant for his own safety. United States v. Hersey, 2009 U.S. Dist. LEXIS 100537 (N.D. Cal. October 14, 2009).*

The evidence obtained for the PC for the SW adequately showed a marijuana grow operation. [Not even really close.] In any event, good faith would save it. United States v. Tran, 2009 U.S. Dist. LEXIS 100357 (D. Minn. October 9, 2009) (USMJ R&R),* later opinion 2009 U.S. Dist. LEXIS 100335 (D. Minn. October 27, 2009).*

There was sufficient nexus for a search warrant as to defendant where there was wiretap information that showed nexus between defendant and the place to be searched. United States v. Jefferson, 2009 U.S. Dist. LEXIS 100645 (E.D. Wis. August 31, 2009).

On a Gant remand, the search incident of defendant’s house when he was in handcuffs in a police car was unreasonable. If, however, another person were likely present, the situation might be different. People v. Leal, 178 Cal. App. 4th 1051, 100 Cal. Rptr. 3d 856 (6th Dist. 2009):

The handgun found in defendant’s home was found in the area that was under his immediate control when he was arrested. The question, though, is whether it was under his immediate control when he was confined in a police car in handcuffs at some distance from the premises. The answer, plainly, is no, and thus the warrantless search was unreasonable under the Fourth Amendment. “‘Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.'” (Chambers v. Maroney (1970) 399 U.S. 42, 47.) “[T]he reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house” (ibid.)–nor when the suspect is safely lodged in a police car outside the home.

. . .

This case is different. In contrast to Summers, in which the suspect “was still being removed” (People v. Summers, supra, 73 Cal.App.4th at p. 291), “one roommate was present and free of police control” (ibid.), and “another was unaccounted for” (ibid.), the police here had determined that defendant was the only one on the premises during his arrest and they had safely confined him outside his house and fully secured the scene. Neither he nor anyone else was in a position to jeopardize the officers’ safety or destroy evidence. Summers properly stated the general rule, namely that when “there is no threat to the officers because the suspect has been immobilized [and] removed, and no one else is present, it makes no [constitutional] sense that the place he was removed from remains subject to search merely because he was previously there.” (Id. at pp. 290-291.) Summers departed from that rule only because the circumstances the case presented were fluid, unstable, and dangerous.

USPO did not violate separation of powers by initiating federal PV after conducting a probation search. United States v. Simmonds, 2009 U.S. Dist. LEXIS 104015 (N.D. N.Y. November 9, 2009):

For similar reasons, the Court also finds that the USPO did not exceed its constitutional authority. Defendant contends that prosecuting crimes is within the sole province of the executive branch, that it is outside the scope of the judiciary to institute new criminal proceedings, and the instant matter blurs the roles of each branch because “if the probationer feared that information candidly shared with Probation was going to form the basis of a separate criminal prosecution, the probationer would have no incentive to honestly participate in his own recovery. … [and] limiting criminal investigations and the initiation of criminal proceedings to the executive assures that the constitutional rights of a probationer … are guarded through the well-established rules of criminal procedure ….”

The police finding defendant’s car parked in another person’s garage does not give him standing to challenge a search of the garage because it shows nothing about a property or possessory interest in the garage. United States v. Suarez-Blanca, 2008 U.S. Dist. LEXIS 111623 (N.D. Ga. January 22, 2008) (USMJ R&R)

Government’s failure to timely raise defendants’ standing to contest historical cellphone number seizure was a waiver under Steagald. United States v. Suarez-Blanca, 2008 U.S. Dist. LEXIS 111622 (N.D. Ga. March 26, 2008) (USMJ R&R).

There was sufficient evidence of ongoing conduct and a connection to defendant’s home for there to be probable cause. United States v. Maricle, 2009 U.S. Dist. LEXIS 103418 (E.D. Ky. October 15, 2009).*

Placing a GPS on defendant’s tractor trailer did not violate the Fourth Amendment. United States v. Coombs, 2009 U.S. Dist. LEXIS 105547 (D. Ariz. October 22, 2009):

Under Ninth Circuit precedent, the placement of a magnetized electronic tracking device on the undercarriage of a vehicle is not an illegal search or seizure. United States v. McIver, 186 F.3d 1119, 1126-1127 (9th Cir.1999). There is no expectation of privacy in the exterior of a car because “[t]he exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search’.” New York v. Class, 475 U.S. 106, 107 (1986). The placement of a tracking device on the undercarriage of a vehicle is also not a seizure. “A seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Karo, 468 U.S. 705, 712-713 (1984) (internal citation omitted). In McIver, the placement of a magnetized tracking device did not deprive the defendant of “dominion and control” of his vehicle and therefore, the Ninth Circuit concluded that no seizure occurred. 186 F.3d at 1127.

Defendant failed to show standing to contest the search of the motel room he was sitting in. He did not show he was to be an overnight guest; he did not even know who rented the room or show a connection to that person. United States v. Clark, 2009 U.S. Dist. LEXIS 105684 (D. Kan. November 12, 2009):

At the suppression hearing, defendant produced absolutely no evidence of standing. When officers entered, defendant was sitting casually on the bed. The room was registered to a “Boisey Barefield.” Defendant produced no evidence of Barefield’s identity, and failed to show any relationship to Barefield, or any invitation from Barefield to visit the motel room. Defendant did not show that he even knew Barefield. Furthermore, defendant did not produce evidence or testimony showing how long he had been in the motel room, what his purpose was in visiting the motel room, or what his relationship was to the other women who were present in the room. In fact, no evidence was produced showing that anyone in the room at the time of the search was registered or listed as an occupant at the motel. For a person to be a “social guest,” he must demonstrate a “degree of acceptance into the household” and an “ongoing and meaningful connection to [the] home.” Defendant has not done so.

Officer responding to a shots fired call with the shooter wearing orange pants and a white shirt saw the likely shooter at the apartment complex [how many people wear orange pants?] and approached him. The defendant turned and walked away. The officer shouted to stop, and he kept going into an apartment. The officer was in hot pursuit and had exigent circumstances that defendant was going for the gun. United States v. Walker, 2009 U.S. Dist. LEXIS 106116 (S.D. Fla. October 22, 2009)*:

Applying these legal principles here, the undersigned finds that Officer Wilson and the other police officers did not violate defendant’s Fourth Amendment rights because of several exigent circumstances which existed at the time the officers entered his apartment. First, as a preliminary matter, the undersigned finds that the police officers had probable cause to believe that defendant had committed a felony offense, namely, aggravated assault with a firearm or another state crime, as reported by the victim. Officer Wilson, only minutes earlier, had heard his radio dispatcher advising police officers of an assault in the area of the subject apartment reported by a victim who described his assailant as a black male wearing a white shirt and orange pants who allegedly attacked him and fired at him with a firearm. Officer Wilson immediately responded to the area and found the suspect wearing a white shirt and orange pants standing outside of an apartment complex. Officer Wilson approached the suspect, later identified as defendant, who immediately turned and walked quickly away from the officer despite a verbal order to stop. Officer Wilson followed defendant, repeating his order to stop, which only resulted in defendant quickening his pace and entering the subject apartment. Officer Wilson followed defendant from only a few yards behind but could not see defendant’s hands to determine whether he still had a firearm. Believing defendant to be the suspect described by the victim, and not knowing whether defendant was still armed, Officer Wilson rightly concluded that he had probable cause to pursue defendant in both “hot pursuit” of a fleeing suspect and for the safety of himself and others possibly inside the apartment.

Having probable cause to believe that defendant had committed an offense, the police officers also correctly concluded that exigent circumstances existed permitting a warrantless entry into the apartment. As stated above, exigent circumstances exist “when the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action.” Ramos, 933 F.2d at 972 (quoting Satterfield, 743 F.2d at 844). …

Store security guards were reliable in the information they passed on to law enforcement officers, and that was reasonable suspicion for defendant’s stop. United States v. Cobb, 2009 U.S. Dist. LEXIS 106313 (E.D. Pa. November 12, 2009).*

Knock-and-announce was properly dispensed with because of a fear for officer safety. [There was no mention of Hudson.] United States v. Landan, 2009 U.S. Dist. LEXIS 106305 (D. Mass. November 12, 2009).*

In the Ninth Circuit’s controversial, from the government’s standpoint, Comprehensive Drug Testing case, the Solicitor General’s petition for real en banc rehearing is here and here. Anybody who is interested in computer search cases will find it quite interesting.

See news stories and blog postings here.

• Wired: Obama Wants Computer Privacy Ruling Overturned. [Not Obama, Obama’s DOJ.]

• New American: Fourth Amendment Under Seige (Again)

• AP on Findlaw: Feds seek rehearing of baseball drug list ruling.

• Orin Kerr on Volokh Conspiracy: After quoting the Solicitor General’s introduction,

A few quick thoughts:

1) I don’t think I have ever seen a brief signed by the SG, Deputy SG, AAG, DAAG, and all of the United States Attorneys in a Circuit. If you’re presently a DOJ official and your name isn’t on the brief, you are probably feeling left out. [When the SG calls, you sign on.]

2) I thought the brief was excellent on the whole, although, as you might guess given my previous writing, I was not entirely persuaded by the harms of eliminating plain view for digital evidence. For example, in the case mentioned on pages 6–7 involving the men who had filmed themselves raping a child, the warrant could just be drafted broadly enough to include any images of child pornography and any evidence of unlawful child sex offenses. That way, evidence of other victims would be included within the scope of the warrant and there would be no need to rely on “plain view.” But that’s a quibble; I thought the brief was well done.

3) Given that all the parties to the case agree that the “guidance” sections were unnecessary, the sensible course would be for the Ninth Circuit to amend the opinion and take the “guidance” sections out. That is, keep the sections that were briefed and responded to the case, and take out the stuff with all the prospective rules beyond this case. Do that and everybody goes home happy, without the time and effort of going super-en-banc or the prospect of Supreme Court reversal. That seems like the sensible course to me, at least.

I discern that this petition was largely written by Deputy Solicitor General Dreeben, and it is well written, as always. It is written like a cert petition.

I agree with Mr. Kerr that part of the brief is a “the sky is falling” argument, and the example the government gives, the reference to the child sexual abusers, is over the top. I just cannot believe that the government did not press forward with that search warrant because it is so easily alleged in the affidavit and shown in the warrant exactly what they wanted. If I were a cynic, I would say that the government manipulated these facts just to create for itself an argument that did not have to exist, almost like they planned to use the example in Washington for a petition for rehearing. Never in the history of the Fourth Amendment has a federal agent been so allegedly solicitous of the rights of an accused. They had the state officers willing to assist, so they create a strawman argument. [Update: A blogger Sunday night referred to this strawman as a “Bush-era argument.”]

Nevertheless, this case has “cert granted” written all over it if the government asks.

First, SCOTUS has never considered a computer search case, although plenty have tried. The government, however, has never been the petitioner, because it almost always wins or can live with the result it got below. It’s been 33 years since Andreson v. Maryland, 427 U.S. 463, 478-84 (1976), and the scope of records searches and plain view within the records searches. Personal computers did not exist in wide use when Andresen was decided, and business computers were large and bulky and were not the vast repositories of personal information that they have become in the last 30 years.

Second, how will the good faith exception enter into a CDT-type particularity problem? The good faith exception usually does not save the part of the search that became a “general search.” What about the scope of plain view in a hard drive on a computer? I can see changes potentially coming, and they are not for the benefit of the citizen. What if the Court decides that the good faith exception should be modified like the exclusionary rule? to which I turn:

Third, how will the new impetus to gut the exclusionary rule, per Hudson and Herring, play into this? The search warrant was good as far as it goes; so what happens when more is found? Should the exclusionary rule be applied when the search warrant was well-intentioned and limited but more was found? This situation does not fit the “logic” of Hudson, but that does not mean that everything cannot change, as will the “logic,” with a few strokes of the Chief Justice’s pen.

I hope that the Ninth Circuit just strikes, as Kerr suggests, the prophylactic rule the Ninth Circuit created, because that is the primary target of the government’s petition for full rehearing as a violation of the Art. III “case or controversy” requirement. Then, the case is no longer cert-worthy, and we don’t have to worry about what will happen if SCOTUS gets it.