There is no First Amendment right of press access to wiretap applications without “good cause” under Title III despite the caselaw that says that judicial records are presumptively public records. At issue were the wiretaps of the Emperor’s Club that ensnared former Gov. Eliot Spitzer. “Good cause” is from a party. In re New York Times Co., 577 F.3d 401 (2d Cir. 2009).*

Information from a citizen that defendant parolee was in possession of a gun was enough to conduct a parole search. United States v. Cordova, 340 Fed. Appx. 427 (10th Cir. 2009) (unpublished).*

Challenge to whether drug dog was “properly trained” to find drugs failed. While there were two methods of training, neither mistrains the dog. State v. Foster, 233 Ore. App. 135 (January 6, 2010):

Defendant, who was convicted of possession of methamphetamine, ORS 475.894, argues on appeal that the trial court erred in denying his motion to suppress evidence found during a warrantless search of his car. In particular, defendant argues that the trial court erred in concluding that probable cause existed to support the search. As explained below, we conclude that the trial court properly denied suppression. Accordingly, we affirm.

. . .

In particular, we note that two aspects of the state’s evidence strongly suggest that, for the purpose at issue here, Benny is adequately trained to detect drugs. First, and disregarding Hulte’s testimony concerning what he considers to be corroboration in approximately two-thirds of the instances that Benny has alerted when he has been deployed in the field, drugs were discovered at the location where he alerted. Second, Benny passed the OPCA certification test, which required a 90 percent accuracy rate. Moreover, the state presented evidence rebutting Woodford’s critique of the OPCA certification test. As discussed, Woodford suggested that handlers might be cueing the dogs about where the drugs were located or that the dogs might be following human scent to the location where the human placed the drugs. Fyfe testified, however, that handlers did not place the drugs for the test or know where the drugs were located, that the people who placed the drugs wore gloves, and also that the people who placed the drugs went to numerous areas in the environment so that the dogs would not simply go to the place that had most recently been disturbed. Given that evidence–in addition to the undisputed evidence by both parties that dogs do, in fact, have superior abilities to detect odors and can be trained to alert to specific odors–we agree with the trial court that the evidence of Benny’s alert to defendant’s car door handle, when combined with other evidence, provided sufficient probable cause for the search at issue here.

A controlled buy from the defendant’s house 72 hours before the search warrant was sought was nexus to believe that drugs would be found. A controlled buy did not mean that there would be no drugs on the premises, contrary to defendant’s assertion. United States v. Smith, 2009 U.S. Dist. LEXIS 124043 (E.D. Tenn. November 19, 2009).*

There was probable cause on the totality from the CI in this case that defendant would be carrying drugs, so his stop and car search was reasonable under the automobile exception. United States v. Cooper, 2010 U.S. Dist. LEXIS 5730 (W.D. La. January 19, 2010).*

Defendant’s stop was not unreasonable when he was suspected of bank robbery. United States v. Lugo, 2010 U.S. Dist. LEXIS 5612 (M.D. Fla. January 6, 2010)*:

The Eleventh Circuit established a nonexclusive check list of four factors for the court to consider when reviewing whether or not the detention of a suspect was proper under Terry. In United States v. Acosta, the Eleventh Circuit stated the court should consider the law enforcement purposes served by the detention, the diligence with which the police pursued the investigation, the scope and intrusiveness of the detention, and the duration of the detention. 363 F.3d at 1146 (quoting U.S. v. Gil, 204 F.3d 1347, 1351 (11th Cir. 2000)).

Aerial video of defendant’s alleged driving infraction somewhat corroborates and does not contradict it. Therefore, it was with probable cause. United States v. Sarabia, 2009 U.S. Dist. LEXIS 124021 (N.D. Ga. December 18, 2009).*

A teachers’ union is upset with a school district that authorized dog sniffs of student cars on school grounds without suspicion that also led the police to sniff the teachers’ cars. Nothing was found. So, does the rationale for school searches apply to teachers as well? T.L.O. logically can’t go there.

From CAAFlog is reference to an oral argument tomorrow in the Court of Appeals of the Armed Forces on computers and the reasonable expectation of privacy in the Army:

On Tuesday, following Blazier will be argument in United States v. Huntzinger, No. 09-0589/AR, where the four granted issues are:

I. Whether the military judge erred in concluding that no soldier at forward operating base (FOB) loyalty had a reasonable expectation of privacy in any regard.

II. Whether the military judge erred in denying a motion to suppress appellant’s external hard drive and password protected laptop when the commander who ordered the seizure of the equipment immediately searched the equipment upon seizure, demonstrating that he was performing law enforcement functions and was not neutral and detached when seizing the items.

III. Whether the doctrine of inevitable discovery is applicable when there are no independent police activities, or testimony or evidence of routine police practices, that would have inevitably resulted in discovery, and no other exception to the Fourth Amendment applies.

IV. Whether the Army Court of Criminal Appeals erred in concluding that probable cause existed to support the search authorization of appellant’s laptop computer and detachable hard drive.

Don’t expect a decision in a while. I’ve always been intrigued by the quality of opinions from the CAAF, so I’m looking forward to it.

Likely possession of marijuana in a backpack in a car justified its search under the automobile exception. The fact that there might have been less than an ounce was not determinative as to application of the automobile exception. State v. Smalley, 2010 Ore. App. LEXIS 21 (January 20, 2010):

According to defendant, Bingman stands for the proposition that, first, the automobile exception requires probable cause to believe that a crime, not a mere violation, has occurred, and second, that a strong odor cannot by itself form the basis for an objectively reasonable belief that an automobile contains more than an ounce of marijuana. Additional evidence is necessary, defendant contends, and, in the present case, there is nothing beyond odor.

We reject defendant’s argument. Bingman overstated the import of Tallman. That case, as noted, holds only that possession of less than an ounce of marijuana cannot, by itself, support probable cause for an arrest or a search incident to an arrest. It says nothing about an automobile search. In fact, this court has never directly confronted the question whether the automobile exception encompasses situations in which an officer has probable cause to believe a violation, as opposed to a crime, has occurred. See ORS 161.505 (offense is either crime or violation)- But see ORS 131.005(6) (“criminal action” includes prosecution for commission of a violation). However, the Supreme Court in Brown specified that “probable cause to believe that a lawfully stopped automobile which was mobile at the time of the stop contains contraband or crime evidence justifies an immediate warrantless search of the entire automobile.” 301 Ore. at 277 (emphasis added). By using the phrase, “contraband or crime evidence,” the court signaled its understanding that the two things were not identical and that probable cause to believe in the presence of either could justify an automobile search; see also ORS 133.535(2) (“contraband” is subject to search and seizure).

The officers did not have exigent circumstances to enter defendant’s house without a warrant where they waited an hour before they decided to enter. Nothing was seized however, and the subsequent search warrant was issued with probable cause, given the “great deference” that search warrants get, and that was an independent basis for the search. State v. Mills, 2010 Tenn. Crim. App. LEXIS 43 (January 15, 2010).*

Officer’s finding of a screwdriver apparently used to remove car panels was relevant to the scope of his consent search—the screwdriver could be used to open the panel. United States v. Braiske, 2010 U.S. Dist. LEXIS 4798 (N.D. Iowa January 21, 2010):

The court finds, however, that the trooper’s discovery of the screwdriver is relevant to the scope of the consent search, and shall overrule the remainder of the first Objection. While searching containers or areas where the object of the search may be present, law enforcement officers may “probe underneath the vehicle[] and open compartments that appear to be false or puncture such compartments in a minimally intrusive manner.” United States v. Ferrer-Montoya, 483 F.3d 565, 568 (8th Cir. 2007). Therefore, evidence indicating that a compartment may be false is relevant to the scope of the search. See id. (officer did not exceed scope of consent to search for drugs by removing screws to access hidden compartment after noticing “scarred screws.”). Before Trooper Andrews pulled back the panel, he discovered a screwdriver in the cargo area of the van. This discovery led him to believe, based on his training and experience, that drugs may be stored in an area that was not accessible without the use of a tool, such as a screwdriver. Accordingly, the court overrules the first Objection to the extent it disputes Judge Scoles’s reliance on the trooper’s discovery of a screw driver in his analysis regarding scope of consent.

From the USMJ’s opinion: Defendant was not denied the opportunity to withdraw consent because he was placed [locked] in a police car with the windows up, absent some showing that he actually attempted to withdraw his consent. United States v. Braiske, 2009 U.S. Dist. LEXIS 123655 (N.D. Iowa December 23, 2009).

Request for counsel during traffic stop leads to finding body in trunk

On ABAJournal.com: Did Man’s Attorney Request Create Reason to Search Car? (Mom’s Body Was in Trunk), about a case in Missouri where the defendant when stopped immediately asked for a lawyer, so the cop searched the trunk.

Safety move to put cameras in locomotives results in privacy suit in CA

In NYT today: Panel Recommends Surveillance in Locomotives.

Kerr seeks cert in McCane

Orin Kerr filed a cert petition in the Gant good faith case of McCane because of a circuit split.

Search incident of a car for failure to produce identification was unreasonable under the Indiana Constitution. Chest v. State, 2009 Ind. App. Unpub. LEXIS 2157 (December 23, 2009), The Publication Status of this Document has been Changed by the Court from Unpublished to Published January 12, 2010, reported at Chest v. State, 2009 Ind. App. LEXIS 2871 (Ind. Ct. App., Dec. 23, 2009), ordered published by Chest v. State, 2010 Ind. App. LEXIS 13 (Ind. Ct. App., Jan. 12, 2010) [Note: The Lexis cites are a three word summary or nothing at all; the link in the case name is to the court’s website]:

Officer Reynolds testified he conducted the search incident to Chest’s arrest, seeking Chest’s driver’s license or other ID. Historically, there are two rationales for the search incident to arrest exception to the warrant requirement: 1) “the need to disarm the suspect” or officer safety; and 2) “the need to preserve evidence for later use at trial.” Moore v. State, 796 N.E.2d 764, 767 n.5 (Ind. Ct. App. 2003), trans. denied. Neither of these rationales apply here. At the time of the search, Officer Reynolds had safely removed Chest from the vehicle, patted him down for weapons, handcuffed him, and secured him in the back seat of the police car. Officer Reynolds had also not seen Chest make any furtive movements when he pulled him over that might have justified a search of the vehicle. See id., 796 N.E.2d at 767 n.5 (“an officer will search a vehicle after placing an occupant under arrest when he or she is concerned about his or her safety because of furtive or threatening behavior on the part of the occupant of the vehicle.”). Therefore, Officer Reynolds’s safety was no longer a concern.

There was also no need to preserve any evidence in the vehicle for trial. Chest had refused to identify himself and, in so doing, committed the crime. The relevant evidence to convict Chest would be Officer Reynolds’s testimony regarding the refusal, not crimes, for which Officer Reynolds might expect to find evidence in the vehicle, his search of Chest’s vehicle violated Article 1, section 11 of the Indiana Constitution. As a result, the trial court erred when it admitted the evidence obtained during the search. Thus, we reverse Chest’s conviction for carrying a handgun without a license and remand with instructions for the trial court to vacate the conviction and sentence imposed thereon.

Wisconsin officials are seeking to get DNA samples from 700 of 11,000 missing ex-offender names from the state DNA database who slipped through without being tested. They are threatening prosecution. State’s DNA letter to felons may yield future setbacks in court by Ben Poston in the Milwaukee Journal-Sentinel:

A letter being sent by the Wisconsin Department of Corrections that orders released felons to submit DNA samples or face prosecution may exceed the state’s authority and undermine future cases, legal experts, defense attorneys and even one prosecutor say.

The concerns are important because the use of DNA evidence obtained under questionable grounds could later be challenged in court if it is used to prosecute a future crime.

The notices have been mailed out by the Corrections Department since December to about 700 of the more than 11,000 offenders whose profiles are missing from the state DNA databank and who already have completed their sentences.

“If someone provides DNA because of the notice and then gets charged with a crime based on the DNA, he or she will file a motion to suppress on those grounds,” retired Wisconsin Supreme Court Justice Janine Geske said. “I just think with so much uncertainty about what is allowed and not allowed, there is risk for (the department) in getting the DNA through this letter.”

A fascinating article getting a lot of notice on the Internet today (CNet News, PogoWasRight) is Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing by David A. Couillard, 93 Minn. L. Rev. 2205 (2009):

Internet use has changed over time, expanding beyond text-based forums and e-mails to include images, videos, documents, interactive online applications, online storage, and more. Experts have coined the term “Web 2.0” to describe the shift in Internet usage from consumption to participation and metaphorically refer to this virtual platform as “the cloud,” where users interact with Internet applications and store data on distant servers rather than on their own hard drives. Despite the shift in Internet usage, users expect their information to be treated the same on this virtual cloud as it would be if it were stored on their own computer, phone, or iPod.

Meanwhile, the Fourth Amendment has also evolved over the past several decades, slowly adapting to various new technologies; but it took the Supreme Court until 1967—nearly a full century after the invention of the telephone—to recognize telephone conversations as constitutionally protected against unreasonable searches. Under a rubric of “reasonable expectations of privacy,” the Court has since defined the contours of the Fourth Amendment’s application in varying circumstances. But technology and society’s expectations are evolving faster than the law. Although statutory schemes exist, some argue that these laws are outdated.10 Meanwhile, the Supreme Court has not even addressed the Fourth Amendment’s application to e-mail, let alone the expanding uses of cloudcomputing platforms. Thus, Fourth Amendment law needs a framework that will adapt more quickly in order to keep pace with evolving technology.

This Note will analyze cloud computing specifically in the context of the Fourth Amendment, notwithstanding related statutory provisions. Part I will examine the evolution of Fourth Amendment jurisprudence in the last several decades and describe the newly emerging field of cloud computing and the implications of that trend. Part II will describe how courts analogize Fourth Amendment precedent to these new and different cloud-computing concepts and will address whether society is reasonable to expect privacy in things stored on the Internet. In addition, it will look at judicial attempts to treat computer accounts and websites as virtual containers and how methods of virtual concealment have been treated under the law. Finally, Part II will also look at the role of third-party intermediaries in this complex privacy equation. So far, judicial approaches to these issues are unclear and vary by jurisdiction, or the issues have been avoided altogether. Part III will synthesize these concerns and lay out a framework for courts to follow when applying Fourth Amendment law to the cloud.

As computer file storage expands offsite, what are the expectations of privacy? Is a password enough? It should be. The Supreme Court has yet to rule on much of anything with computers or the Internet and the Fourth Amendment, still, in 2010.

In an economic espionage case, the defendant had no standing in a computer server that he had only some access to store his own files and no access to many files of others. He did have standing in his own files that were password protected. United States v. Roberts, 2009 U.S. Dist. LEXIS 123188 (E.D. Tenn. December 21, 2009):

In so finding, the Court is guided by the decision of the District Court for the District of Connecticut, which held that while a supervisor had a reasonable expectation of privacy in his own work area and in other areas in which he worked, he had no reasonable expectation of privacy in data on computers other than that on his own desk. United States v. Costin, No. 3:05-CR-38, 2006 WL 2522377, *6 (D. Conn. July 31, 2006). Similarly, the present defendants could not expect privacy in computer files, other than their own files that were password protected, on Wyko’s server. On the other hand, the password protected files resemble the records in United States v. Mancini, 8 F.3d 104, 110 (1st Cir. 1993). In Mancini, the First Circuit found that the defendant, a mayor, had an objectively reasonable expectation of privacy in his work records stored in an “archive attic” because the storage area was upstairs from his office of nineteen years, the defendant took precautions to assure that others would not have access to the records without his prior permission, and the defendant’s records were labeled and segregated from the other items stored in the attic. Id. Here, by having some files on the server password protected, the defendant(s) took steps to make sure that others could not access his/their files. Accordingly, the Court finds that the defendants had no reasonable expectation of privacy in data stored on the server other than their own files that were password protected.

Defendant was a passenger in a car that drove by a house where a search warrant for meth was being executed. Repeated requests for consent to search her purse conveyed that she was not free to leave. State v. Billings, 231 Ore. App. 404, 220 P.3d 65 (2009):

The result in this case is governed by our holding in Anderson, in which we held that the defendant could have reasonably believed that his liberty had been significantly restrained when he was asked for his identification. Id. If anything, the circumstances in this case are more restrictive than those presented in Anderson. Defendant was not only asked for her identification, she was subjected to repeated requests for her consent to allow the trooper to search her purse while the officer reiterated his suspicions regarding her being in the company of a known user of controlled substances and their appearance at a known drug house that was being searched. See, e.g., State v. Toevs, 327 Ore. 525, 536-37, 964 P2d 1007 (1998) (holding that continuing requests for consent to search, among other factors, constituted conduct that was significantly beyond that accepted in ordinary social intercourse). We conclude, therefore, that defendant’s belief that the officer unlawfully interfered with her liberty of movement in obtaining her consent to the search of her purse was a reasonable one, if defendant in fact held a subjective belief that she was not free to leave.

Defendant’s husband was stopped by the police and called her. She arrived at the scene and she was effectively and unreasonably “stopped” by the police by questions about her own meth use. State v. Pewonka, 321 Ore. App. 558, 219 P.3d 606 (2009).*

Defendant’s post-conviction IAC claim that she did not understand English and could not have consented was belied by the fact she had been in the U.S. 16 years and had a driver’s license 7 years and her trial testimony. Ayoub v. United States, 2009 U.S. Dist. LEXIS 100567 (E.D. Mich. October 29, 2009).*

Defendant who had his head down and was rolling a blunt never saw the police approach on foot to his car, so he was not seized by their approach. He did not even see the lights of the police car, so a per se rule of lights = seizure cannot be applied. Once he saw the officers, he was seized, and he clearly could not leave. The court notes that it cannot apply the law to permit a citizen to leave because it would be dangerous to the citizen. G.M. v. State, 19 So. 3d 973 (Fla. 2009), affg G.M. v. State, 981 So. 2d 529 (Fla. 3d DCA 2008):

Despite our approval of the Third District’s conclusion with regard to the general inappropriateness of per se rules in the Fourth Amendment analysis context, we cannot agree with its further conclusion that, even if G.M. had been aware of the emergency lights, a seizure would not have occurred under the totality of the circumstances here. See G.M., 981 So. 2d at 534. The record reflects that the officers rapidly crossed the public street in their vehicle with emergency lights activated, entered the park, and positioned the police vehicle behind the two parked cars around which the individuals were congregating. There is absolutely no indication that the officers believed the individuals to be in need of aid, and the individuals certainly did not exhibit conduct to indicate that they sought police assistance. Cf. Evans, 764 N.E. 2d at 843; Johnston, 620 N.E. 2d at 129; Blair, 14 P.3d at 665. The officers, although not in uniform, exhibited badges and possessed handguns as they exited the vehicle. Finally, while one officer approached the Lexus, the second officer positioned himself to observe the individuals and was prepared to apprehend anyone who attempted to leave the area.

It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave. See Mendenhall, 446 U.S. at 554. Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances. Instead, as a matter of safety to both the public and law enforcement officers, we conclude that a citizen who is aware of the police presence under the specific facts presented by this case is seized for Fourth Amendment purposes and should not attempt to walk away from the police or refuse to comply with lawful instructions.

“Personal service” of a search warrant is not required by the state constitution, but it is by statute, but, in some cases, it is impractical. A failure of personal service does not void the search. Darity v. State, 2009 OK CR 27, 220 P.3d 731 (2009):

[*P12] Personal service of the warrant on a person found within the premises at the time of the search protects both officers and occupants by discouraging resistance and informing those within the premises that the intrusion is under lawful authority. However, personal service on persons located elsewhere when the warrant is executed is unnecessary to ensure the reasonableness of the search or protect the legitimate interests of the parties affected. Other statutes serve to safeguard the liberty and property interests of persons affected by execution of a search warrant on their property. 22 O.S.2001, §§ 1233-1240. These laws provide for a publicly filed inventory of the search, delivery of an inventory to the person whose property was seized, the right to judicial hearing on the issuance of the warrant, the right to restoration of property unlawfully seized, and criminal sanctions against officers who maliciously procure warrants without probable cause or execute them with “unnecessary severity.” 22 O.S.2001, §§ 1233-1240.

While state law required a search warrant to be served on the target of the search, leaving a copy on the coffee table in front of the handcuffed accused is sufficient. The Fourth Amendment does not require that the warrant be read to the handcuffed accused [it is doubtful state law did either]. Besides, this was not a sufficient ground to invoke the exclusionary rule [if failure to announce isn’t, failure to read the warrant, a fortiori, isn’t]. United States v. Porter, 654 F. Supp. 2d 938 (E.D. Ark. 2009).* (What about the absent owner? How would such a rule even be applied?)

The fact the officer was not going to give a ticket for speeding, although there was reason (76 in a 70), asking for papers and stuff did not make the stop otherwise unreasonable. The officer finally smelled marijuana coming from the car when he leaned in. While there was a contradiction in the officer’s testimony from his reports, it was not so material to undermine his credibility. United States v. Bohanon, 629 F. Supp. 2d 802 (E.D. Tenn. 2009).*

However, Patterson’s testimony indicates he saw no reason to deploy his canine since he detected the odor of marijuana himself. As to whether the marijuana odor was that of burnt or raw marijuana, it is troubling that Patterson appeared to be attempting to conform his testimony during the suppression hearing to his misreading of his affidavit. However, he testified in both the state court proceeding and the suppression hearing that he smelled a marijuana odor coming from the Tahoe. In addition, in his affidavit he noted that he smelled an odor of marijuana. I CONCLUDE Patterson’s inconsistent testimony regarding whether the marijuana odor was burnt or raw, while troubling, does not constitute such a material contradiction that it results in discrediting Patterson’s testimony he detected an odor of marijuana. Therefore, upon consideration of all of the evidence, I credit Patterson’s credible testimony he smelled an odor of marijuana in the Tahoe.

Although all the information about the CI was not in the affidavit for the search warrant, sufficient detail was. Besides, the good faith exception would save this warrant anyway. United States v. Morton, 2009 U.S. Dist. LEXIS 89820 (W.D. Tenn. September 29, 2009).*

Thirteen minute traffic stop that led to consent was not unreasonable. United States v. Williams, 2009 U.S. Dist. LEXIS 90051 (M.D. Fla. September 30, 2009).*

Officer could pin the defendant to his car when he made a sudden move to the back of the car that the officer did not expect. Defendant did not overcome the presumption of regularity of findings of fact and conclusions of law drafted by the prosecutor. [Maybe so if the written findings don’t match the oral findings.] State v. Dell, 2009 Ohio 4897, 2009 Ohio App. LEXIS 4151 (5th Dist. September 16, 2009):

[*P16] In his Second Assignment of Error, appellant contends the trial court’s delegation to the prosecutor the task of submitting proposed findings of fact and conclusions of law on the suppression ruling was a violation of appellant’s constitutional rights. We disagree.

[*P17] Generally, “[a]n appellate court is guided by a presumption of regularity in the proceedings before a trial court.” Huffer v. Chafin, Licking App.No. 01 CA 74, 2002 Ohio 356. In Adkins v. Adkins (1988), 43 Ohio App.3d 95, 539 N.E.2d 686, the court indicated that a trial court may adopt a party’s proposed findings verbatim, but that before adopting proposed findings, the trial judge has a duty to read the document thoroughly, and ensure that it is completely accurate in fact. See id. at 98, 539 N.E.2d 686, citing Paxton v. McGranahan (Oct. 31, 1985), Cuyahoga App. No. 49645; State v. Rose, 4th Dist. No. 06 CA 5, 2006 Ohio 5292, P 45. Findings from the verbatim adoption of proposed findings may be reversed on appeal only if they are clearly erroneous. See State v. Elmore, Licking App.No. 2005-CA-32, 2005 Ohio 5940, P 30.

Officers did not “stop” the defendant, but, if they did, there was reasonable suspicion. Defendant fled. United States v. Colon, 654 F. Supp. 2d 326 (E.D. Pa. 2009).*

The video of the stop supported the government’s contention defendant consented. United States v. Hendrix, 2009 U.S. Dist. LEXIS 85244 (W.D. Tenn. September 17, 2009).*

Defendant found to have consented to search of his car. He was questioned in Spanish. United States v. Navarro, 2009 U.S. Dist. LEXIS 85113 (M.D. Ala. August 28, 2009).*

Informant’s information provided reasonable suspicion to stop the defendant, including the fact that defendant had a gun under the car seat. United States v. Allen, 2009 U.S. Dist. LEXIS 84991 (E.D. Mo. May 21, 2009).*

Case remanded for more findings on plain view. The reasons given by the trial court do not support the finding of plain view. The reason for the stop was satisfied before that happened. Skjervem v. State, 215 P.3d 1101 (Alas. App. 2009).*

Consent to enter to look for the driver of a vehicle police believed was involved in a drive-by shooting led to a valid plain view of the recorder to a security camera trained on the vehicle because it would logically show the driver. United States v. Davis, 635 F. Supp. 2d 752 (E.D. Tenn. 2009):

Officers Willett and Rader undeniably had authority to be in the defendant’s house generally. Since they had the occupants’ consent to search for the defendant himself, based upon their experience and training that fugitives frequently hide in attics, not to mention evidence that someone had recently climbed into the attic, it was within the scope of their permission for these officers to enter the attic.

Once they were into the attic – a place they had a right to be, as just discussed – they immediately saw the digital recording machine. It was in plain view, sitting atop a pedestal adjacent to the entrance.

Lastly, Officer Willet immediately knew the significance of the recording machine in light of the surveillance cameras affixed to the house. More specifically, he knew the significance of the recording machine with relation to the crime he was then investigating, since the camera at the outside of the building was aimed directly at the Dodge Durango and would have recorded the movements of that vehicle. He knew by eyewitness accounts that that vehicle was the one used by defendant when he sprayed a hail of bullets into Chris Brotherton. A visual record of the arrival of that vehicle at 1600 Kingsport Highway would be additional evidence regarding the identity of the shooter. In other words, there was probable cause to believe that the recorder contained evidence of the crime for which Officer Willett was then actively pursuing defendant.

The “plain view” exception to the Fourth Amendment’s requirement for a warrant applies, and the recorder was properly seized.

Defendant’s traffic stop was with probable cause because the temporary paper tag looked like it could have been made on any printer and the paper was not of sufficient thickness to be valid. However, the paper tags later turned out to possibly be valid based on the paperwork in hand. Nevertheless, defendant seemed unusually nervous, and the officer’s testimony was credited on that. United States v. Dejesus, 2009 U.S. Dist. LEXIS 98423 (M.D. Ala. October 22, 2009), USMJ R&R United States v. Dejesus, 2009 U.S. Dist. LEXIS 98529 (M.D. Ala. August 6, 2009)*:

The court is not without its concerns as to some of Trooper Martin’s rationalizations for his continued suspicion and detention of Mr. DeJesus and his vehicle. While it is perhaps true that drug mules frequently consume energy drinks, so do many other, innocent, people, and the fact that Trooper Martin spotted a can of an energy drink (much less other “snacks”) in Mr. DeJesus’s reach is not a strong basis for suspicion. Even less intelligible are Trooper Martin’s observations about Mr. DeJesus’s possession of dry-cleaned clothing. Finally, the court is skeptical that it would be possible to literally observe a person’s clothing moving as the result of a strong heartbeat, especially when, as acknowledged by Trooper Martin, Mr. DeJesus was wearing multiple layers of clothing, as was understandable on a February morning.

Nonetheless, these questionable observations were not the sole, or even the major, rationales behind the continued detention of Mr. DeJesus. Despite the concerns about the observations mentioned above, the court must give at least some credence to Trooper Martin’s observation that Mr. DeJesus appeared nervous and more ill at ease than the average subject of a traffic stop. Likewise, Trooper Martin could have considered as part of the totality of the circumstances that Mr. DeJesus’s stated route from Houston to Atlanta was known to be along a major drug-trafficking corridor. Further, Mr. DeJesus does not contest that, after he gave Trooper Martin his driver’s license and other documents, Trooper Martin placed a call to the El Paso Intelligence Center, an information clearinghouse for drug-related investigations. Officials there informed Trooper Martin that Mr. DeJesus was a party to an open drug-trafficking investigation. Considering the totality of the circumstances, the court cannot say that Trooper Martin lacked reasonable suspicion to detain Mr. DeJesus for the length of time (between 15 and 20 minutes, on the basis of the DVD of the stop in the record) he did prior to obtaining Mr. DeJesus’s consent to search. See United States v. Sokolow, 490 U.S. 1, 7 (1989); United States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988) (upholding a Terry stop of 50 minutes, while citing authority that a duration of up to 20 minutes was standard).

Defendant’s stop was justified and a dog alert made the search with probable cause, so defendant’s effort to apply Gant fails. United States v. Robinson, 2009 U.S. Dist. LEXIS 98432 (W.D. N.C. October 8, 2009).*

Turning over a car to a transit shipper was a relinquishment of any expectation of privacy in the car because it was left unlocked, the shipper had the keys, and the shipper would be entering it, parking it, and transporting it. “Although there is no evidence that Crowder directly authorized the driver to search the vehicle, in light of the circumstances described above it is clear that the driver was ‘authorized to act in direct contravention to’ Crowder’s privacy interest.” United States v. Crowder, 588 F.3d 929 (7th Cir. 2009).

Tenth Circuit follows Gant good faith exception under United States v. McCane, 573 F.3d 1037 (10th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3221 (U.S. Oct. 1, 2009) (No. 09-402) where the search incident would have been invalid under Gant, but in less than confirmatory language. United States v. Davis, 2009 U.S. App. LEXIS 27901 (10th Cir. December 18, 2009).*

Transit police could conduct an investigative stop of plaintiff when he was seen boarding a MARTA train with a holster. State law made it a crime to board public transportation with a firearm. GeorgiaCarry.Org, Inc. v. Metropolitan Atlanta Rapid Transit Authority, 2009 U.S. Dist. LEXIS 117989 (N.D. Ga. December 14, 2009).*

A vehicle license check that shows that the registered owner of a vehicle has a suspended drivers license is reasonable suspicion for a stop, unless it is obvious that the driver could not be the registered owner. Armfield v. State, 918 N.E.2d 316 (Ind. 2009):

The safety of Indiana’s roadways strongly points toward initiating a Terry stop when the police officer knows that the registered owner of a vehicle has a suspended license. But this legitimate public safety concern is, of course, subject to the Fourth Amendment right to be secure from unreasonable searches and seizures. We believe that this right is vindicated by requiring that officers must be unaware of any evidence or circumstances which indicate that the owner is not the driver of the vehicle before initiating a Terry stop.7

7 Courts in other jurisdictions have provided helpful examples of evidence or circumstances which indicate that the owner is not the driver of the vehicle. The Minnesota Supreme Court posited this hypothetical:

[I]f the officer knows that the owner of a vehicle has a revoked license and further, that the owner is a 22-year-old male, and the officer observes that the person driving the vehicle is a 50- or 60-year-old woman, any reasonable suspicion of criminal activity evaporates. Absent other articulable facts which would give rise to such suspicion, it would be unconstitutional for the officer to make a stop in such a situation.

Pike, 551 N.W.2d at 922. The Supreme Judicial Court of Maine has noted that “if the driver were of a different gender than the owner, the officer would lack reasonable grounds to assume the owner was driving.” Tozier, 905 A.2d at 839 n.1 (citing Jones, 678 N.W.2d at 631 n.4 (“[I]f the registered owner was a male and the driver was a female, the officer would not have reasonable grounds to assume that the driver was the owner.”)). We agree with these courts that under such circumstances, the officer would lack reasonable suspicion to initiate a Terry stop.

We hold that an officer has reasonable suspicion to initiate a Terry stop when (1) the officer knows that the registered owner of a vehicle has a suspended license and (2) the officer is unaware of any evidence or circumstances which indicate that the owner is not the driver of the vehicle. This rule does not require officers to match the physical description of the registered owner from the license plate check to the driver of the vehicle before initiating a Terry stop. We agree with the State that “requiring the officer to verify the driver of the vehicle strikes against basic principles of safety [because it] puts the onus on the officer to maneuver himself into a position to clearly observe the driver in the midst of traffic.” (State’s Resp. to Accept Transf. 5.) In addition, we acknowledge the difficulty that the driver verification requirement would impose on officers during late night hours and in situations where car windows are darkly tinted, as was the case here.

Accord: Holly v. State, 918 N.E.2d 323 (Ind. 2009).

The good faith exception applies to a search incident occurring before Gant that became unreasonable under Gant. People v. Branner, 180 Cal. App. 4th 308 (3d Dist. December 17, 2009):

A question posed in this case is whether the guilty must go free when (1) at the time such evidence was obtained by a law enforcement officer, a decision of the United States Supreme Court instructed the officer that the manner in which he searched for and seized the evidence was lawful, but (2) thereafter, the Supreme Court changed its mind. As we will explain, the answer is “No.”

Although it may be that a “criminal is to go free because the constable has blundered” (People v. Defore (1926) 242 N.Y. 13, 21), the guilty should not go free when the constable did precisely what the United States Supreme Court told him he could do, but the court later decides it is the one who blundered. Evidence seized during a search that was lawful pursuant to Supreme Court precedent existing at the time, but later overruled by the court, should not be excluded for two reasons: (1) “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates” (United States v. Leon, supra, 468 U.S. at p. 916 [82 L.Ed.2d at p. 694]) and, therefore, if a search by an officer complies with a court ruling that allows the officer to so act, “[p]enalizing the officer for the [court’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations” (id. at pp. 918, 921 [82 L.Ed.2d at pp. 696, 697); and (2) applying the exclusionary rule in such a circumstance would have “substantial social costs” due to the “objectionable collateral consequence of [the rule’s] interference with the criminal justice system’s truth-finding function [by allowing] some guilty defendants [to] go free or receive reduced sentences” (id. at p. 907 [82 L.Ed.2d at p. 688]).

This principle, known as the good-faith exception to the exclusionary rule, applies to the search and seizure in this case. A question posed in this case is whether the guilty must go free when (1) at the time such evidence was obtained by a law enforcement officer, a decision of the United States Supreme Court instructed the officer that the manner in which he searched for and seized the evidence was lawful, but (2) thereafter, the Supreme Court changed its mind. As we will explain, the answer is “No.”

Although it may be that a “criminal is to go free because the constable has blundered” (People v. Defore (1926) 242 N.Y. 13, 21), the guilty should not go free when the constable did precisely what the United States Supreme Court told him he could do, but the court later decides it is the one who blundered. Evidence seized during a search that was lawful pursuant to Supreme Court precedent existing at the time, but later overruled by the court, should not be excluded for two reasons: (1) “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates” (United States v. Leon, supra, 468 U.S. at p. 916 [82 L.Ed.2d at p. 694]) and, therefore, if a search by an officer complies with a court ruling that allows the officer to so act, “[p]enalizing the officer for the [court’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations” (id. at pp. 918, 921 [82 L.Ed.2d at pp. 696, 697); and (2) applying the exclusionary rule in such a circumstance would have “substantial social costs” due to the “objectionable collateral consequence of [the rule’s] interference with the criminal justice system’s truth-finding function [by allowing] some guilty defendants [to] go free or receive reduced sentences” (id. at p. 907 [82 L.Ed.2d at p. 688]).

This principle, known as the good-faith exception to the exclusionary rule, applies to the search and seizure in this case.

Leon’s good faith exception was based on the fact a judicial officer interceded between the citizen and the officer in the issuance of a search warrant. In this situation, Leon should never be cited, but the anti-exclusionary rule courts consider Belton or Gant to be a judicial error rather than an officer error.

See post on Crime and Consequences.