Defendant’s frisk revealed a crack pipe which was obvious from plain feel, since the officer knew a crack pipe when he felt it, having seized hundreds. The search incident of the car was limited and reasonable, and it did not have to stop when the first contraband was found. United States v. Bradford, 2009 U.S. Dist. LEXIS 110385 (E.D. Wis. November 5, 2009):

In the present case, as the magistrate judge explained, defendant was arrested for possession of drug paraphernalia (not a traffic offense), making it reasonable for the officer to search the car for drugs. Further, once the officer found the bullet, it was reasonable for him to look for a gun. Cf. Gant, 129 S. Ct. at 1721 (noting that under United States v. Ross, 456 U.S. 798, 820-821 (1982), police may, based on probable cause that a vehicle contains evidence of criminal activity, search any area of the vehicle in which the evidence might be found, and that Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader).

Defendant argues that Koestering should have stopped his search after he found the crack cocaine on the front passenger seat, but nothing in Gant suggests that a permissible search incident to arrest must stop as soon as any contraband is found. Nor does the record show that Koestering searched areas of the car where evidence of the offense of arrest could not be located. Defendant suggests that Koestering “ransacked” the car, but the record does not support that contention either. As discussed above, Koestering moved the front seat in order to check the back for more drugs, at which point he saw the bullet. He then looked under the front driver’s seat and saw the gun. Far from a ransacking, this was a limited search, fully justified by the circumstances.

Defendant alien’s fingerprinting was incidental to his removal on his admission he was an illegal, and it was not suppressed. United States v. Guijon-Ortiz, 2009 U.S. Dist. LEXIS 110505 (S.D. W.Va. November 25, 2009)*:

Based upon the entirety of the findings of fact set forth heretofore, the court is satisfied that the 10 minutes of questioning of defendant along the lines set out in Government Exhibit 2, and the taking of his fingerprints, fit within the booking exception. The evidence was obtained for, and was motivated solely by, the administrative purpose of removal, including the reinstatement of the defendant’s prior order of deportation. It is important to note as well that at the time of the road side encounter ICE was on notice, via defendant’s admission, that he did not possess papers showing he was in the United States legally. Hilton’s observations on the point are also noteworthy. He is unchallenged in asserting that illegal reentry cases are generally pursued administratively rather than criminally.

The Supreme Court decided an emergency entry case today Michigan v. Fisher, 2009 U.S. LEXIS 8773 (December 7, 2009) (per curiam), on the cert papers, reversing the Michigan Court of Appeals which suppressed an entry into a house where a guy was inside going “crazy” and the officers could see a bloody hand. To the Court, that was essentially the same as Brigham City v. Stuart, 547 U. S. 398 (2006), on the severity of the injury.

Even a casual review of Brigham City reveals the flaw in this reasoning. Officers do not need ironclad proof of “a likely serious, life-threatening” injury to invoke the emergency aid exception. The only injury police could confirm in Brigham City was the bloody lip they saw the juvenile inflict upon the adult. Fisher argues that the officers here could not have been motivated by a perceived need to provide medical assistance, since they never summoned emergency medical personnel. This would have no bearing, of course, upon their need to assure that Fisher was not endangering someone else in the house. Moreover, even if the failure to summon medical personnel conclusively established that Goolsby did not subjectively believe, when he entered the house, that Fisher or someone else was seriously injured (which is doubtful), the test, as we have said, is not what Goolsby believed, but whether there was “an objectively reasonable basis for believing”that medical assistance was needed, or persons were in danger, Brigham City, supra, at 406; Mincey, supra, at 392.

It was error for the Michigan Court of Appeals to re-place that objective inquiry into appearances with its hindsight determination that there was in fact no emergency. It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. But “[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties.” Brigham City, supra, at 406. It sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands.

Dissenting was Stevens, joined by Sotomayor, complaining that the trial court apparently got it right that Michigan law required proof that immediate aid was required, and here there was insufficient proof of that.

Today, without having heard Officer Goolsby’s testimony, this Court decides that the trial judge got it wrong. I am not persuaded that he did, but even if we make that assumption, it is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind. We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer’s actions, particularly in a case tried in a state court. I therefore respectfully dissent.

Accordingly, there is nothing here to discern Sotomayor’s Fourth Amendment leanings, yet.

Detroit News has an article on the case this afternoon.

SCOTUSWiki does not include it yet, but likely soon.

AZ Court of Appeals enjoins probable retaliatory search of judge’s chambers

In the ongoing clusterfuck known as Maricopa County where a court security officer was held in contempt and ordered to jail for taking a paper from defense counsel’s file in open court, on video, in front of the judge, the Arizona Court of Appeals today issued a temporary injunction against a possible retaliatory search of the judge’s chambers and home by the Sheriff’s Office.

The Sheriff’s Office has accused the judge who held the deputy in contempt of bribery. The first link will take you to another link to other articles.

Maricopa County sounds like a banana republic where the Sheriff can intimidate any official he wants.

Defendant was asked about consent to search a car, and he said that it wasn’t his, it was his sister’s and she wasn’t around. He lacked standing to contest the search. United States v. Winters, 2009 U.S. Dist. LEXIS 114353 (W.D. La. September 22, 2009).*

Defendant’s property was subjected to a consent search authorized by a third person with permission to enter and sufficient control. His argument about a wrongful eviction, while “cogent and well-briefed” is not pertinent. United States v. Sexton, 2009 U.S. Dist. LEXIS 114014 (N.D. Ind. December 7, 2009).*

Defendant was driving the wrong way on a freeway entrance ramp. When he could not produce a driver’s license, there was reasonable suspicion to extend the stop longer. United States v. Rodriguez-Gamboa, 2009 U.S. Dist. LEXIS 114192 (D. N.M. November 12, 2009).*

The DEA’s seizure of the premises under Segura while a search warrant was obtained was reasonable. United States v. Bravo-Zamora, 2009 U.S. Dist. LEXIS 114478 (M.D. Ala. November 20, 2009).*

The San Francisco jail’s policy of strip searching incoming inmates to control weapons and contraband coming into the jail is constitutional under Bell v. Wolfish. Bull v. City & County of San Francisco, 2010 U.S. App. LEXIS 2684 (9th Cir. February 9, 2010) (en banc) (6-5), panel opinion Bull v. City & County of San Francisco, 539 F.3d 1193 (9th Cir. 2008):

“A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). Indeed, “attempts to introduce drugs and other contraband into [prison] premises … is one of the most perplexing problems of prisons.” Hudson v. Palmer, 468 U.S. 517, 527 (1984); see Overton v. Bazzetta, 539 U.S. 126, 134 (2003) (“Drug smuggling and drug use in prison are intractable problems.”); Block v. Rutherford, 468 U.S. 576, 588-89 (1984) (“We can take judicial notice that the unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country.”). San Francisco’s six county jails are no exception: They struggle with a serious, ongoing problem of drugs, weapons, and other contraband being smuggled into jail facilities. The record contains hundreds of pages of incident reports, indicating that between April 2000 and December 2003, searches of the San Francisco general jail population resulted in the discovery of 1,574 items of contraband, including 662 assorted controlled substance pills, 106 shanks and other weapons, 1 screwdriver, 17 jail-made handcuff keys, 42.88 grams of rock cocaine, 2.75 grams of powder cocaine, 6.70 grams of methamphetamine, 6.24 grams of tar heroine, 71.93 grams of marijuana, 4 ecstasy pills, 32 assorted pipes, 1 hypodermic needle, and 24 gallons of homemade alcohol known as “Pruno.” The presence of such contraband threatens the health and safety of inmates, corrections officers, and jail employees. The record contains reports of the death of an inmate housed in the general population from drugs obtained within the prison, and of one detainee who set her clothes on fire with a lighter smuggled into the cell, of another who mutilated himself with staples similarly secreted into the jail, and of a third who attempted suicide with razor-blades smuggled into the jail in his rectal cavity. The jail administrators have concluded that, based on their experience, “the greatest opportunity for the introduction of drugs and weapons into the jail occurs at the
point when an arrestee is received into the jail for booking and, thereafter, housing.” In light of this conclusion, Sheriff Hennessey developed and implemented a “Booking Searches” policy. This policy authorized officers to strip search an arrestee when any one of eleven conditions applied, including the condition at issue here, namely, when “[a] person [was] assigned a custody level by Classification and scheduled for custodial housing.”

. . .

Applying the principles reviewed above, it is apparent that the scope, manner, and justification for San Francisco’s strip search policy was not meaningfully different from the scope, manner, and justification for the strip search policy in Bell. Similar to the challenged policy in Bell, the San Francisco strip search procedures governing the scope and manner of the searches, as detailed in the Sheriff’s Booking Searches policy, limited the searches to visual inspection and expressly prohibited tactile strip searches. See 441 U.S. at 558 n.39, 560. Moreover, the San Francisco procedures required officials to conduct strip searches in a professional manner and in a place that afforded privacy. Furthermore, the circumstances justifying the San Francisco strip search policy are weightier in this case than they were in Bell. The record reveals a pervasive and serious problem with contraband inside San Francisco’s jails, as well as numerous instances in which contraband was found during a search, indicating that arrestees’ use of body cavities as a method of smuggling drugs, weapons, and items used to escape custody is an immediate and troubling problem for San Francisco jail administrators. The record of smuggling in this case far exceeds the showing in Bell, where defendants “proved only one instance in the MCC’s short history where contraband was found during a body-cavity search.” Id. at 558.

. . .

In sum, because the circumstances before us are not meaningfully distinguishable from those presented in Bell, the balance between the need for the San Francisco strip search policy and “the invasion of personal rights that the search entails” must be resolved in favor of the jail system’s institutional concerns. Id. at 559. While strip searches are invasive and embarrassing, and while this type of security measure “instinctively gives us the most pause,” id. at 558, we must conclude that under Bell, San Francisco’s strip search policy was reasonable and therefore did not violate the class members’ Fourth Amendment rights.

The dissent notes that the plaintiffs were arrested for property crimes and briefly held and released, never going into general population.

The majority sweeps away twenty-five years of jurisprudence, giving jailors the unfettered right to conduct mandatory, routine, suspicionless body cavity searches on any citizen who may be arrested for minor offenses, such as violating a leash law or a traffic code, and who pose no credible risk for smuggling contraband into the jail. Under its reconfigured regime, the majority discards Bell’s requirement to balance the need for a search against individual privacy and instead blesses a uniform policy of performing body cavity searches on everyone arrested and designated for the general jail population, regardless of the triviality of the charge or the likelihood that the arrestee is hiding contraband. The rationale for this abrupt precedential departure is founded on quicksand. Indeed, the government’s entire argument is based on the logical fallacy cum hoc ergo propter hoc— happenstance implies causation. The government argues that contraband has been found in the San Francisco jails. Thus, the government reasons, individuals who are arrested must be smuggling contraband into the jail. Therefore, the government concludes it must body cavity search everyone who is arrested, even those who pose no risk of concealing contraband, much less of trying to smuggle contraband into the jail.

This reasoning finds no support from the record in this case. Although there is evidence of some arrestees attempting to conceal contraband during their arrest, there is not a single documented example of anyone doing so with the intent of smuggling contraband into the jail. More importantly, for our purposes, there is not a single example of anyone from the class defined by the district court who was found to possess contraband upon being strip searched. Not one.

Indeed, and ironically, the record shows that most of the individual plaintiffs who were body cavity searched were never actually placed in the general jail population at all. Because they were never housed with other detainees, these individuals posed absolutely no risk of “smuggling” contraband into the general jail population. They were body cavity searched anyway, simply because they were classified for potential placement in the general jail population.

See LATimes, SF Chronicle, Metropolitan News-Enterprise, Jurist.

When police executed an arrest warrant at defendant’s house, they found a stolen motorcycle outside. That contributed to the need for a protective sweep of the house. Defendant later consented to a search of the house. United States v. Flowers, 2010 U.S. Dist. LEXIS 10434 (S.D. Tex. February 5, 2010):

Significantly, because a stolen motorcycle had been observed outside the house, the officers knew they would be required to remain at the house, both inside and outside, in order to process the stolen vehicle, increasing the risk of an attack from someone inside the house, either an accomplice in Defendant’s criminal activity or a loved one with a misguided desire to protect Defendant from arrest and criminal prosecution. The officers had a reasonable basis to believe that persons inside the house could pose a danger to their safety and, therefore, properly conducted a protective sweep of the house.

Motion to reconsider denial of motion to suppress was denied. Drilling a boat’s panel was not unreasonable when a drug dog alerted. United States v. Amaro-Rodriguez, 2010 U.S. Dist. LEXIS 10438 (D. P.R. February 8, 2010).*

Officer in a high crime area walking toward the sound of gunshots encountered the defendant, and defendant acted furtively. This justified his patdown. United States v. Calloway, 2010 U.S. Dist. LEXIS 10752 (W.D. Va. February 8, 2010).*

Police want to serve warrants and orders for electronic data electronically to eliminate delay

Police want backdoor to Web users’ private data by Declan McCullagh on CNET News:

Anyone with an e-mail account likely knows that police can peek inside it if they have a paper search warrant.

But cybercrime investigators are frustrated by the speed of traditional methods of faxing, mailing, or e-mailing companies these documents. They’re pushing for the creation of a national Web interface linking police computers with those of Internet and e-mail providers so requests can be sent and received electronically.

FBI wants records kept of Web sites visited

FBI wants records kept of Web sites visited by Declan McCullagh on CNET News:

The FBI is pressing Internet service providers to record which Web sites customers visit and retain those logs for two years, a requirement that law enforcement believes could help it in investigations of child pornography and other serious crimes.

FBI Director Robert Mueller supports storing Internet users’ “origin and destination information,” a bureau attorney said at a federal task force meeting on Thursday.

As far back as a 2006 speech, Mueller had called for data retention on the part of Internet providers, and emphasized the point two years later when explicitly asking Congress to enact a law making it mandatory. But it had not been clear before that the FBI was asking companies to begin to keep logs of what Web sites are visited, which few if any currently do.

. . .

Greg Motta, the chief of the FBI’s digital evidence section, said that the bureau was trying to preserve its existing ability to conduct criminal investigations. Federal regulations in place since at least 1986 require phone companies that offer toll service to “retain for a period of 18 months” records including “the name, address, and telephone number of the caller, telephone number called, date, time and length of the call.”

. . .

Recording what Web sites are visited, though, is likely to draw both practical and privacy objections.

“We’re not set up to keep URL information anywhere in the network,” said Drew Arena, Verizon’s vice president and associate general counsel for law enforcement compliance.

Defense counsel was not ineffective for not moving to suppress the search of the car defendant was riding in because there was probable cause for the search. While drug dog was called in and did not alert, this does not nullify PC that already exists. Holt v. United States, 2010 U.S. Dist. LEXIS 9300 (E.D. Tenn. February 3, 2010):

Holt also argues that Trooper Osborne had no right to walk his drug sniffing canine around the Holt vehicle on March 29. Holt offers no legal support for his contention and none exists. Holt does not argue that Trooper Osborne detained the automobile and its occupants longer than was reasonably necessary; he instead argues once again that the videotaped evidence shows that the dog “did not hit on anything.” Even if Holt were correct, this is also irrelevant because the Trooper already had probable cause to search the automobile based on the odor of marijuana he detected when he first approached the automobile. Given that probable cause already existed, it is unclear why the canine was even employed, unless it was to confirm what the officer already had sufficient reason to believe. In any event, the failure of the dog to alert would not negate or destroy the probable cause that already existed. See United States v. Davis, 430 F.3d 345 (6th Cir. 2005).

Defendant’s broadranging attack on seizure of e-mails that he sent was [utterly frivolous and] rejected. He assumed the risk that the recipient would keep and make use of them. And, violation of the Yahoo service agreement is hardly a ground to suppress. United States v. Grady, 2009 U.S. Dist. LEXIS 124582 (E.D. Mo. December 18, 2009):

Further, the e-mail communications were not “seized” by the agents within the meaning of the Fourth Amendment, nor did Defendant have any legitimate expectation of privacy in the communications. Defendant certainly cannot assert any basis to suppress the e-mails that were created and sent by the undercover officers, and thereafter stored on their own computer. The remaining e-mails were sent by Defendant to the address provided, and the undercover officers simply received and opened them at the address to which Defendant directed them. See Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (noting that e-mail senders “would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose expectation of privacy ordinarily terminates upon delivery of the letter”) (citations omitted); see also Ideal Aerosmith, Inc. v. Acutronic USA, Inc., No. 07-1029, 2007 WL 4394447, at *5 (E.D. Pa. Dec. 13, 2007) (holding that plaintiff had no claim under the Wiretap Act against the defendant, who was not the intended recipient of the e-mail communication, where the communication was nonetheless sent to the defendant).

Moreover, having responded to an anonymous listing, Defendant assumed the risk that the entity with whom he chose to correspond was not an actual purveyor of underage prostitutes. That the undercover agent concealed his identity and stated that he was not law enforcement does not change this result. See Lopez v. United States, 373 U.S. 427, 437-39 (1963) (holding that recorded conversation with agent who gained entry to the defendant’s office by misrepresenting and falsifying the purpose of his mission, was not subject to suppression); see also Sega Enters. Ltd v. MAPHIA, 948 F. Supp 923, 930 (N.D. Cal. 1996) (recognizing that access to a public bulletin board through use of a pseudonym does not constitute an unauthorized access under the SCA, as such forums “are normally accessed by use of an alias or pseudonym”).

Arrest warrant justified entry into defendant’s house looking for him. He was unemployed, and, although there were no cars outside, officers heard noises inside that stopped when they knocked. Defendant was suspected of forging IDs and other documents, and it was reasonable to assume that the materiel for doing so would be there. United States v. Thousst, 2009 U.S. Dist. LEXIS 124601 (M.D. Ala. November 5, 2009)*:

“The focus in a warrant application is usually on whether the suspect committed a crime and whether evidence of the crime is to be found at his home or business.” United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002), quoting United States v. Procopio, 88 F.3d 21, 28 (1st Cir. 1996). Though not explicitly stated in the warrant, it stands to reason that a person such as Thoussaint, who passes forged instruments and who has no known workplace, may well secret some or all of the equipment used to manufacture the fraudulent instruments at his home. This Court may consider the fact that Thoussaint’s residence, as opposed to a non-existent workplace, would be a likely place for evidence of his crime. Martin acknowledges that courts must sometimes “look beyond the four corners of the affidavit and search warrant” to “consider information known to [an officer] that was not presented in the initial search warrant application or affidavit.” Martin, 297 F.3d at 1318. Again, the Eleventh Circuit directs courts to view the “totality of the circumstances” in determining whether an affidavit presents probable cause for a search. Id. at 1319. The affidavit amply established Thoussaint’s connection to the residence, and, by virtue of his unemployed status, Thoussaint’s residence is implicitly a potential link to his criminal activity. Martin, id.

Nighttime search warrant failed because of failure to show any specifics of why there was exigency for the nighttime entry. The mere chance of “degradation of evidence” is not enough. State v. White, 2010 Del. Super. LEXIS 27 (February 2, 2010):

Here, the only facts contained in the affidavit that suggest exigent circumstances are the location to be searched, a motel room, and the affiant’s cursory statement that he is aware of the “possibility of degradation of evidence, particularly blood and biological evidence.” The affidavit is most striking for all the information it does not contain, much of which could have supported exigent circumstances justifying a nighttime warrant. For example, nowhere in the affidavit does the affiant tell the magistrate: [much of anything].

“[T]he opening of the closed but unlocked box within the closed but unlocked book bag did not exceed the scope of the inventory policy.” Commonwealth v. Allen, 76 Mass. App. Ct. 21, 918 N.E.2d 475 (2009).

Search of a pill bottle for weapons in a frisk of the car was unreasonable. Commonwealth v. Cruz-Rivera, 76 Mass. App. Ct. 14, 918 N.E.2d 471 (2009):

But even if one assumes that the police did properly search the car’s interior, they exceeded constitutional limits when Officer Berube opened the small pill bottle he found in the vehicle’s center console. While it is true that Officer Berube and Officer Gaudet both had been informed in various ways about the existence of very small weapons, such as single-shot pen-sized guns, knives, or razors, a limited search of an automobile in which the police are about to allow the operator to drive off cannot be justified solely by police knowledge that small weapons exist and conceivably can be stored in small containers. Instead, such a search, if proper at all, must be “reasonably designed” to uncover threatening weapons, a concept that requires consideration of all the circumstances, including the likelihood that a weapon of some kind may be present and the threat the weapon may pose under the circumstances. For example, the high likelihood that the trunk of every car contains a jack handle, dangerous when used as a club, does not justify the routine search of the trunk of every car the police detain.

Contrary to the motion judge’s findings, there was no evidence that pill-bottle sized weapons had “proliferated” nor was there evidence that the defendant had a specific history of using tiny weapons. On this record, it simply was not reasonable to believe that the defendant might, upon his release with a message that he was free to go, enter his car, reach into the console, open a pill bottle, extract a weapon smaller than four and one-half inches by one and three-fourths inches and use it in an effort to harm the two nearby, fully armed police officers who had just released him. Indeed, allowing police to search the pill bottle under the circumstances this record reveals would, as a practical matter, essentially remove most constitutional brakes on police power to search the contents of motor vehicles stopped for routine traffic incidents.

The Third Circuit hears oral argument this week in a significant privacy case involving cell phone tracking data: Case offers rare glimpse into the mechanics of federal criminal investigations where nearly all documents are filed ex parte and stay under seal until indictments are handed up by Shannon P. Duffy in The Legal Intelligencer (February 8, 2010). As the article notes, this is the first federal appeals court to take on this issue:

In a case that could prove to be one of the most important privacy rights battles of the modern era, the 3rd U.S. Circuit Court of Appeals will hear argument this week on the proper legal standard to apply when prosecutors demand cell phone location data.

The data, which are recorded about once every seven seconds whenever a cell phone is turned on, effectively track the whereabouts and the comings and goings of every cell phone user.

Justice Department lawyers argue that, by statute, they need only show “reasonable grounds” to believe that such records are “relevant and material to an ongoing criminal investigation.”

But a federal magistrate judge in Pittsburgh strongly disagreed in February 2008, issuing a 52-page opinion that said the prosecutors must meet the “probable cause” standard.

Defendant’s effort to distance himself from the premises searched ended up denying him standing. United States v. Xavier, 2010 U.S. Dist. LEXIS 8786 (D.V.I. February 2, 2010)*:

Here, rather than show a legitimate expectation of privacy in the searched residence, Defendant has done just the opposite. Defendant’s Motion for Reconsideration is premised on the notion that “he does not reside at # 10 Estate Humbug.” (Defendant’s Memorandum of Law in Support of Motion for Reconsideration 5.) Indeed, the affidavits and exhibits tendered by the Defendant are all offered to show that he did not reside at No. 10 Estate Humbug. While the searched residence may be the home of Defendant’s wife, Brendacia Xavier, Defendant offers no evidence from which this Court can deduce that he had possession, control, or dominion over No. 10 Estate Humbug. Defendant has not demonstrated that he actually believed that he had an expectation of privacy at the searched residence or that his expectation was the type that society is prepared to recognize as reasonable and has therefore failed to carry his burden of showing that the search of No. 10 Estate Humbug violated his Fourth Amendment rights. Salvucci, 448 U.S. at 85; Rakas, 439 U.S. at 132; Acosta, 965 F.2d at 1256 n.9.

The video of defendant’s stop was inconclusive on the question of whether defendant consented. The officer’s actions were not indicative of a true consent. United States v. Paul, 2010 U.S. Dist. LEXIS 7994 (M.D. La. January 29, 2010)*:

Other circumstantial factors also weigh against consent. As the audiovisual recording reveals, the defendant was not in custody voluntarily. The government contends the police did not use coercive procedures to obtain consent. However, Dohm used “rough language” to subdue him. After the defendant had spread his arms and legs and leaned over Dohm’s car, Dohm patted down his body. When the defendant complained, Dohm patted the back of the defendant’s head three times and told him to calm down. A few moments later, Dohm raised his hand and told the defendant to “quit [expletive] yelling at me. You [expletive] yell at me one more time and I’m going to have a problem.” The fact that the defendant subsequently did not protest when Dohm began to retrieve the defendant’s license does not demonstrate he impliedly consented to a search at that point. Moreover, when the defendant’s phone rang, Dohm reached into the defendant’s pants pocket, removed the phone and opened it, shining his flashlight on the display. His investigative purpose is not clear, but his disregard for the defendant’s consent at that point is plain.

Corroboration of details of a CI is important to insure that the CI isn’t just making things up. This is a close case on PC in the affidavit for the search warrant, but close calls go in favor of the warrant. United States v. Rivera, 2010 U.S. Dist. LEXIS 7731 (D. V.I. January 28, 2010)*:

When viewed under the totality of the circumstances, this Court cannot say that the Magistrate Judge lacked a substantial basis to find probable cause that a search of Defendant’s residence would reveal evidence of drug trafficking. The purpose of corroboration is to ensure that the tipster is honest and reliable. Gates, 462 U.S. at 239. But, “the risk that the informant is lying or in error need not be wholly eliminated. Rather, what is needed is that the probability of a lying or inaccurate informer has been sufficiently reduced by corroborative facts and observations.” Khounsavanh, 113 F.3d at 284 (internal quotations omitted). Here, the tipster’s claims that Defendant was involved in drug trafficking were partially corroborated by police observations of drug dealing in the area where the tipster indicated as well as the ongoing investigation into Defendant stemming from the discovery that his car was used to transport a significant amount of marijuana.

The Court acknowledges that this case is a close call. The Court also recognizes that the historical preference for searches conducted pursuant to a warrant mandates that this Court give “great deference” to the Magistrate Judge’s determination of probable cause (Gates, 462 U.S. at 236) and “not to engage in after-the-fact scrutiny that take[s] the form of de novo review.” Ritter, 416 F.3d at 263-64. “[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Hodge, 246 F.3d at 305. The deferential standard with which this Court must view the magistrate’s initial probable cause determination tips the scale in favor of determining that the magistrate had a substantial basis for finding probable cause existed.

Border search checklist

Border Searches and the Fourth Amendment by Robert J. McWhirter on ABA Book Briefs Blog, a checklist of border search issues.

Defendant was visiting and sitting on the porch of a house when police arrived to execute a search warrant. The frisk of the accused was proper. Germany v. United States, 984 A.2d 1217 (D.C. 2009):

The parties agree that the MPD officers’ detention of appellant during the execution of the search warrant was lawful, and that the sole issue presented is whether the weapons pat-down was constitutionally permissible. As one appellate court observed a few years ago, “[w]hether law enforcement officers may detain and pat-down persons encountered during the execution of a narcotics search warrant in a private home is far from settled.” State v. Howard, No. 2003-CA-0058, 2004 Ohio App. LEXIS 2256, at P29 (Ohio Ct. App. June 2, 2004) (italics added). That remains true today; in particular, the Supreme Court has not directly addressed the question of whether, consistent with the Fourth Amendment, police may frisk the occupants of a private residence during the execution of a search warrant for narcotics and weapons. However, a number of decisions by the Supreme Court and this court provide useful guidance.

Law of the case bound the trial court to follow the prior state supreme court ruling on the suppression issue which was denied. The trial court offered to hear any new evidence defendant had, but he had none, so the prior ruling was correctly followed. Ross v. State, 22 So. 3d 400 (Miss. App. 2009).*

CI was not shown to be reliable or credible to the police. Also, his statements about possession of drugs on the premises six months earlier added nothing about the day in question. “[T]he sale of drugs out of a residence is not inherently ongoing”; something has to be shown of a continuing nature. United States v. Ervin, 2010 U.S. Dist. LEXIS 2885 (E.D. Tenn. January 14, 2010).*

In an ongoing case from San Diego where three youths were arrested for the murder of a friend, prosecuted for a year and then DNA was finally tested that cleared them, a strip search claim and a claim over their search for blood without probable cause only survive. “Under clearly established Supreme Court and Ninth Circuit law, no reasonable police officer could have believed that the desire to prove that another person (presumably Michael) killed Stephanie established probable cause to draw Stephen and Cheryl’s blood. The district court properly denied summary judgment and qualified immunity.” Crowe v. County of San Diego, 2010 U.S. App. LEXIS 894 (9th Cir. January 14, 2010, amended January 27, 2010) (argued June 1, 2008).* See Basically Law (“The Ninth Circuit ruled that several officers who used outrageous and manipulative interrogation techniques on teenagers are not entitled to qualified immunity. If you want to know how police can manipulate a confession out of vulnerable, and innocent, people, read the facts of this case.”); Law.com (“A 9th Circuit panel on Thursday reinstated many of the legal claims of a Southern California man, who, as a 14-year-old boy, falsely confessed to killing his younger sister after a series of grueling and coercive interviews with police. [¶] Writing for a unanimous three-judge panel, Judge Sidney Thomas said authorities’ marathon questioning of Michael Crowe and his accused accomplice, Aaron Houser, ‘shocks the conscience.'”).

The burden of proof for consent in federal court is preponderance of the evidence, not “clear and convincing” as in Tennessee state courts, and the burden was satisfied here. United States v. Roberts, 2010 U.S. Dist. LEXIS 2855 (E.D. Tenn. January 14, 2010).*

In an allegation of failure of defense counsel to move to suppress because of no standing or open fields defeating any claim, the government seeks and gets a waiver of attorney-client privilege as to the allegations of ineffective assistance of counsel. United States v. Garcia, 2010 U.S. Dist. LEXIS 7114 (E.D. Cal. January 8, 2010):

When a petitioner in a habeas corpus action raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to the matters challenged. See Bittaker v. Woodford, 331 F.3d 715, 718-19 (9th Cir. 2003) (“[A] litigant waives the attorney-client privilege by putting the lawyer’s performance at issue during the course of litigation …”); Osband v. Woodford, 290 F.3d 1036, 1042 (9th Cir. 2002). The waiver applies to all information necessary to give the opposing party a fair opportunity to defend. Bittaker, 331 F.3d at 719. If a district court exercises its discretion to allow discovery subject to an attorney-client waiver, it must enter appropriate protective orders clearly delineating the contours of the limited waiver before the commencement of discovery. Id. at 728.

Here, the court finds that movant has waived the attorney-client privilege with regard to any communications between movant and his trial counsel regarding: (1) counsel’s decision not to file a motion to suppress evidence obtained as a result of the warrantless search of the outdoor marijuana garden; (2) movant’s fluency in the English language and ability to comprehend his trial proceedings and assist his trial counsel without the aid of a Spanish/English interpreter; and (3) whether movant’s trial counsel advised movant of the alternatives available to him to resolve the criminal charges against him prior to trial. By separate order the court will limit the use of information and materials obtained by respondent as a result of movant’s waiver.

Texas phony arrest scheme with Black motorists

On the WSJ blog, a story about police shakedowns of Black motorists in Tenaha TX seizing money for no reason and threatening prosecution to get it. The DA apparently is involved: Texas DA Sued Over Alleged Phony Arrest Scheme Left ‘High and Dry’.

There is a reference to an earlier post and a Chicago Tribune story from March: Highway robbery? Texas police seize black motorists’ cash, cars / Suit says cops force motorists, largely black, to forfeit cash and cars—or be charged with trumped-up crimes.

Pot hidden in honey wagon

On CNN this story from Arizona: A septic tank cleaning truck was the subject of a stop and search that led to the finding of 743 lbs of marijuana hidden in the human waste.