The search of defendant’s car was valid as an inventory search, and Gant had no application. United States v. Melton, 2009 U.S. Dist. LEXIS 60253 (M.D. Ala. July 15, 2009).*

The officer here had RS to call for a drug dog during defendant’s stop. The officer did not even know about pending charges against the defendant, and the defendant volunteered that he had charges pending and he was going to Chicago to “stay with his people” before appearing in court in Missouri. He had two GPS devices, one installed [could not that one’s programming have expired and it would cost $2000 to update?], which the officer found curious. United States v. Stanley, 2009 U.S. Dist. LEXIS 59807 (D. Neb. July 13, 2009).*

Officer sitting in his car at a convenience store saw defendant get out of his car and walk toward to the door. He could see a bulge in defendant’s waistband that was likely a gun. He approached the defendant and asked about the gun. The fact he approached the defendant with his hand on his own gun did not make the encounter a stop. It led to a frisk. United States v. Morgan, 337 Fed. Appx. 798 (11th Cir. 2009) (unpublished).*

Child welfare sexual abuse investigation interrogation of child violated family’s due process rights. Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009):

We are asked to decide whether the actions of a child protective services caseworker and deputy sheriff, understandably concerned for the well-being of two young girls, exceeded the bounds of the constitution. Specifically, the girls’ mother, Sarah Greene, alleges, on behalf of S.G., one of her children, that the caseworker, Bob Camreta, and deputy sheriff, James Alford, violated the Fourth Amendment when they seized and interrogated S.G. in a private office at her school for two hours without a warrant, probable cause, or parental consent. Sarah also argues that Camreta’s subsequent actions, both in securing a court order removing the girls from her custody and in subjecting the girls to intrusive sexual abuse examinations outside her presence, violated the Greenes’ familial rights under the Due Process Clause of the Fourteenth Amendment.

As this brief description makes clear, resolving the constitutional claims at issue in this case involves a delicate balancing of competing interests. On one hand, society has a compelling interest in protecting its most vulnerable members from abuse within their home. The number of child abuse allegations is staggering: In 2007, for example, state and local agencies investigated 3.2 million reports of child abuse or neglect. See U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES. CHILD MALTREATMENT 2007 (2009), available at http://www.acf.hhs.gov/programs/cb/pubs/cm07/chapter2.htm.

On the other hand, parents have an exceedingly strong interest in directing the upbringing of their children, as well as in protecting both themselves and their children from the embarrassment and social stigmatization attached to child abuse investigations. Of the millions of investigations conducted by state and local agencies in 2007, only about a quarter concluded that the children were indeed victims of abuse. See id. This discrepancy creates the risk that “in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help.” Doriane Lambelet Coleman, Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment, 47 Wm. & Mary L. Rev. 413, 417 (2005).

With these competing considerations in mind, we turn first to Sarah’s constitutional claims. As we explain below, we hold that the investigation conducted by Camreta and Alford and the removal and examination instigated by Camreta all violated Sarah and the girls’ constitutional rights. As to the investigation, however, we conclude that Camreta and Alford cannot be liable in damages because they have qualified immunity.

Despite the officer’s statement that defendant was free to go before permission to use the drug dog was sought, it was apparent that he was not. The use of the dog here was not reasonable. State v. Haar, 2009 SD 79, 772 N.W.2d 157 (2009)*:

[*P20] In addition, we agree with the circuit court that Haar was detained or seized because a reasonable person in his position would not have felt free to leave or terminate the encounter. Haar and the other occupant were alone at the rest area without the ability to leave in their vehicle. Further, Swets parked his vehicle, positioned himself, questioned Haar, and released the dog in a manner such that a reasonable person would not feel he or she was free to leave. Under the totality of the circumstances, we agree with the circuit court that any initially consensual encounter became an investigatory detention. The circumstances justifying this conclusion include the remote location of the encounter, Haar’s restricted access to his vehicle and jacket on a cold February day, the investigatory nature of the conversation, Swets’s conceded show of authority, and the release of the dog. Even disregarding Swets’s concession, his actions amounted to a show of authority such that a reasonable person would not have felt free to leave. See Royer, 460 U.S. at 501-02, 103 S. Ct. at 1326, 75 L. Ed. 2d 229 (concluding that analogous actions by law enforcement with respect to an airport traveler surely amounted to a show of official authority such that “a reasonable person would have believed he was not free to leave”).

[*P21] Although we acknowledge that Swets told Haar he was “free to go,” the seizure of the car together with the simultaneously release of the dog made this statement demonstrably false. Furthermore, the release of the dog left no room for a reasonable person to believe that he or she could have disregarded Swets’s command to the dog, disrupted the canine sniff, and left in his or her vehicle uninterrupted. We conclude that Swets affected a Terry detention or seizure of Haar and his vehicle.

Defendant was sitting in a parked car and he was approached by a law enforcement officer who was asking him questions. The officer concededly believed that a hand to hand drug deal had gone down, but the appeals court is not persuaded. People v. Estrada, 394 Ill. App. 3d 611, 333 Ill. Dec. 260, 914 N.E.2d 679 (2009):

The thrust of the State’s argument here is that Officer Cloherty had a reasonable suspicion that defendant was in the midst of a narcotics transaction. The State gleans support from the fact that defendant was seated in a vehicle with the engine running, engaged in a “brief conversation with a man standing near the driver’s side of the vehicle,” and then “attempted to conceal a white plastic bag by removing it from the front seat and placing it on the floor of the rear passenger seat.” The State posits, that in light of the foregoing circumstances as well as Officer Cloherty’s assignment and training, there existed a reasonable and articulable suspicion to support a Terry stop of defendant. We disagree. The State further maintains that, in addition to Cloherty’s initial observations, the revelation that defendant’s vehicle lacked a city sticker provided “further suspicion to investigate.” However, we are not persuaded that this additional factor in any measure alters our initial disagreement with the State’s position.

Officers came onto defendant’s porch. After defendant gave his name, the officer told him to assume the “position,” and this was a seizure without reasonable suspicion. Roberts v. Commonwealth, 55 Va. App. 146, 684 S.E.2d 824 (2009).*

“In this case, we decide that the exigent circumstance of officer safety justified Officer Charles Kruse’s actions in opening wider Joshua P. Lindsey’s car door and visually inspecting the car’s interior. Officer Kruse saw Lindsey run into a store, brandish a weapon, and leave the store heading in the direction of the car, which had its driver’s side door ajar. Given these facts, it was reasonable for Officer Kruse to believe that the car may have been Lindsey’s getaway car and that an accomplice, possibly also armed, may have been inside. Because the contents of the car were concealed by its tinted windows and the door was ajar, it was not unconstitutional for the officer to open the door wider and look inside.” Lindsey v. State, 916 N.E.2d 230 (Ind. App. 2009).*

Use of emergency lights when parking behind an already stopped car is not per se a stop. It is primarily for safety purposes. R.H. v. State, 916 N.E.2d 260 (Ind. App. 2009)*:

While Officer Holmes may have activated his emergency lights in order to identify himself to other motorists, we are not persuaded that it constituted an order to stop.

Given the objective and articulable facts of this case, we do not find that Officer Holmes’ approach and initial contact with R.H. amounted to a seizure under the Fourth Amendment where he was responding to a report from concerned citizen regarding a strange vehicle parked in front of the citizen’s residence; it was late at night; the vehicle already was stopped; and Officer Holmes displayed no force. See Huey, 503 N.E.2d at 625 (finding no “seizure which required specific, articulable facts indicating a crime had been committed or was about to be committed” where the defendant was in his own car, the officer did not stop the defendant and the officer’s initial question did not accuse the defendant of a crime); see also Overstreet v. State, 724 N.E.2d 661, 664 (Ind. Ct. App. 2000) (discussing examples of circumstances under which a reasonable person would have believed he was not free to leave, including “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”), trans. denied.

Defendant’s vehicle was unlawfully seized when it was towed, and a court ordered tracking device was installed. The unlawful towing did not make the installation of the court ordered tracking device. United States v. Williams, 650 F. Supp. 2d 633 (W.D. Ky. 2009), accepted in part, rejected in part, 2009 U.S. Dist. LEXIS 73997 (W.D. Ky. Aug. 18, 2009):

Here, no legitimate noninvestigative purpose existed for the police to remove Defendant Williams’ automobile from the parking lot. The vehicle was lawfully parked and presented no danger to the public, nor was the vehicle itself shown to be at risk. Most importantly, Williams’ wife and her friend, Cherie Liggons, were present and available to drive the vehicle back to Williams’ Apollo Ct. home. Instead of releasing the automobile to the two women, the police had the vehicle towed purely for investigatory purposes so that the permanent electronic tracking device could be surreptitiously installed. Given these circumstances, the warrantless seizure of Williams’ Town Car, while not prohibited in any fashion by the recent Gant decision, was nevertheless an objectively unreasonable warrantless seizure not supported by the community caretaking exception to the warrant requirement of the Fourth Amendment.

This conclusion does not mean, however, that the ensuing installation of the tracking device was unlawful. This is so, the Court concludes, because the seizure of the vehicle was an inevitable event. The record is undisputed that Det. Juan Garrett obtained a search warrant from Chief Judge Shake soon after the seizure of the vehicle. The warrant empowered police to lawfully install in the vehicle a hidden electronic tracking device powered by the electrical system of the car. The near-contemporaneous issuance of this warrant rendered the seizure of Williams’ Town Car and implantation of the tracking device, inevitable irrespective of the preceding unlawful seizure.

The situation is analytically similar to the inevitable discovery doctrine under Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). Under this doctrine, the exclusionary rule is inapplicable, even if the initial search or seizure is unlawful, where the evidence at issue would inevitably been discovered by lawful means. See Murray v. United States, 487 U.S. 533, 539, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988) (“The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.”).

Wisconsin (five days before Weaver) finds GPS tracking reasonable under the Fourth Amendment, but it is troubled by it and urges the legislature to limit it. State v. Sveum, 2009 WI App 81, 319 Wis. 2d 498, 769 N.W.2d 53 (2009):

P19 Accordingly, we conclude that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view. Because this case does not involve tracking information on the movement of Sveum’s car within a place protected by the Fourth Amendment, it follows that the circuit court correctly rejected Sveum’s Fourth Amendment suppression argument.

P20 We are more than a little troubled by the conclusion that no Fourth Amendment search or seizure occurs when police use a GPS or similar device as they have here. So far as we can tell, existing law does not limit the government’s use of tracking devices to investigations of legitimate criminal suspects. If there is no Fourth Amendment search or seizure, police are seemingly free to secretly track anyone’s public movements with a GPS device. As the Seventh Circuit observed:

The new technologies enable, as the old (because of expense) do not, wholesale surveillance. One can imagine the police affixing GPS tracking devices to thousands of cars at random, recovering the devices, and using digital search techniques to identify suspicious driving patterns. One can even imagine a law requiring all new cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States….

….

Technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive.

Garcia, 474 F.3d at 998.

P21 We are also concerned about the private use of GPS surveillance devices. As the Seventh Circuit and a recent New York Times article indicate, GPS technology is available at low cost to the general public. See Garcia, 474 F.3d at 995; David Pogue, Peekaboo, Zoombak Sees You, N.Y. TIMES, Apr. 23, 2009, at B1, B8. Although there are obviously legitimate private uses, such as a trucking company monitoring the location of its trucks, there are also many private uses that most reasonable people would agree should be prohibited.

P22 Consequently, we urge the legislature to explore imposing limitations on the use of GPS and similar devices by both government and private actors. Such limitations would appear to be consistent with limitations the legislature has placed on electronic intercepts of communications. See Wisconsin’s Electronic Surveillance Control Law, WIS. STAT. §§ 968.27-.33 (2007-08).

Officer after a traffic stop told the defendant that he was “good to go,” and then tried to engage the defendant in further conversation, which the defendant refused to consent to. Because defendant did not consent, the stop was unreasonably extended without reasonable suspicion. United States v. Flores-Loza, 2010 U.S. Dist. LEXIS 1934 (D. Utah January 11, 2010).*

Apartment security’s armed guard detained defendants with reasonable suspicion of breaking into cars on the parking lot, and he called 911 to get the police there. The police had reasonable suspicion when they got there. United States v. McHugh, 2010 U.S. Dist. LEXIS 1960 (N.D. Okla. January 11, 2010).*

Officer pulled up behind defendant’s car but did not stop him. The officer engaged him in a consensual encounter, so there was no stop. United States v. Huerta, 2010 U.S. Dist. LEXIS 2275 (E.D. Tenn. January 12, 2010).*

Warrantless entry into defendant’s apartment because of feared mental instability of the defendant and his access to a weapon was justified. United States v. Zetterman, 2010 U.S. Dist. LEXIS 2009 (D. Maine January 11, 2010).*

The defendant’s traffic stop was proper, and it took a while for the computer checks to come back. While waiting, a drug dog was run around the vehicle which alerted, and this was not unreasonable. United States v. Williams, 2010 U.S. Dist. LEXIS 1673 (M.D. Fla. January 8, 2010)*:

The Court finds that Det. Kirkby and Lt. Hedrick had not received responses from all of their legitimate computer inquiries, and Lt. Hedrick had not completely filled out the written warning notice, until after the drug dog alerted (Doc. # 79, pp. 57-59). Since neither the written warning nor all pending computer record checks had been completed, the Court finds that the legitimate purpose of the traffic stop had not yet been fulfilled at the time the drug dog alerted. United States v. Simms, 385 F.3d 1347, 1353 (11th Cir. 2004). Therefore, the duration of the detention attributable to the traffic stop was approximately 20 to 22 minutes (see Doc. # 108, p. 26), at which point the drug dog’s alert provided probable cause. Under the circumstances of this case, that length of time was not unreasonable.

What about intentionally delayed computer checks, just to facilitate this conduct? Could the officer give a code word to dispatch to “take your time on this so I can run the drug dog”? If so, then reasonableness has been manipulated.

When is a Parent’s Authority Apparent? Reconsidering Third-Party Consent Searches of an Adult Child’s Private Bedroom and Property, by Jason C. Miller, in Criminal Justice, Winter 2010, 34-37:

By requiring police to more thoroughly develop an understanding of the relationship, rather than assuming all parents can consent to searches of all adult children’s rooms, courts would better protect the right to be free from unreasonable searches and seizures of both parents and their adult children. All adults should be treated as equals under the law, even those who reside with their parents.

Civilly committed inmates have only limited Fourth Amendment rights, but, here, strip [not body cavity] searches after visits are reasonable. Pat downs after using the gym are also reasonable. Semler v. Ludeman, 2009 U.S. Dist. LEXIS 122567 (D. Minn. November 23, 2009):

The Eighth Circuit has held that involuntarily civilly committed persons retain the Fourth Amendment right to be free from unreasonable searches, analogous to the right retained by pretrial detainees. Serna v. Goodno, 567 F.3d 944, 948 (8th Cir. 2009) [posted here]. Elaborating on the grounds for applying the standard for pretrial detainees set forth in Bell, 441 U.S. at 520, the Eighth Circuit noted that pretrial detainees are kept in custody because there is cause to believe they are dangerous; similarly, commitment under Minnesota law as a sexually dangerous person requires a finding of dangerousness. Id.

. . .

Balancing the significant security interests of the institution against the privacy interests of Plaintiffs, see Bell, 441 U.S. at 1885, the Court does not find that MSOP’s policy of requiring Plaintiffs to submit to an unclothed visual body cavity search after contact visits is unreasonable. 9 The policy is in place in order to maintain a safe environment, is applied only after patients have a particular type of visit or contact, and similar searches have been upheld as constitutional by the Supreme Court and the Eighth Circuit. The Court recommends that Plaintiffs’ claims regarding the unclothed visual body cavity searches be dismissed.

Defendant as a passenger had standing to challenge the stop, but the stop was with reasonable suspicion. The CI’s tip was specific and corroborated, and he had a good track record. United States v. Owens, 2010 U.S. Dist. LEXIS 1290 (M.D. Pa. January 8, 2010).*

Defendant’s stop was valid based on overtinting. He validly consented. His prior experience with law enforcement was a factor in considering his consent. United States v. Pena, 2009 U.S. Dist. LEXIS 122552 (E.D. N.C. December 11, 2009).*

Entering defendant’s driveway at 4 a.m. to install a GPS device on his car violated no reasonable expectation of privacy. They entered where anybody approaching the property would or had to. United States v. Pineda-Moreno, 08-30385 (9th Cir. January 11, 2010):

Pineda-Moreno’s case differs from [United States v.] McIver, [186 F.3d 1119 (9th Cir. 1999)] in only one respect. Whereas McIver conceded that his car was not parked within the curtilage of his home when the agents attached the tracking device, id. at 1126, the government here concedes that Pineda-Moreno’s Jeep was parked within the curtilage of his home when the agents attached the tracking device. We need not decide, however, whether Pineda-Moreno’s vehicle was parked within the curtilage of his home. Even assuming it was, it was parked in his driveway, which “is only a semiprivate area.” United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975). “In order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of visibility from the street) or the nature of activities performed upon it.” Maisano v. Welcher, 940 F.2d 499, 503 (9th Cir. 1991). Pineda-Moreno offers no such evidence. To the contrary, the driveway had no gate, no “No Trespassing” signs, and no features to prevent someone standing in the street from seeing the entire driveway. Additionally, one of the investigating agents testified that “an individual going up to the house to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” If a neighborhood child had walked up Pineda-Moreno’s driveway and crawled under his Jeep to retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain. Thus, because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home.

Pinedo-Moreno argues that the driveway was nonetheless an area in which he possessed a reasonable expectation of privacy because the agents entered his driveway between 4:00 and 5:00 a.m. But just as the timing of the agents’ actions was immaterial to our analysis in McIver, where we upheld agents’ entry onto a suspect’s driveway at 3:30 a.m. to attach a mobile tracking device to his vehicle, 186 F.3d at 1123, 1126, the time of day is immaterial here.

The Uses and Misuses of Fourth Amendment History by David E. Steinberg, 10 U.Pa. J. Const. L. 581 (2008)

Probable Cause, Reasonableness, and the Importance of Fourth Amendment History: A Response to Professor Arcila by David E. Steinburg, 10 U.Pa. J. Const. L. 1211 (2008)

A Response to Professor Steinberg’s Fourth Amendment Chutzpah by Fabio Arcila, Jr., 10 U.Pa. J. Const. L. 1229 (2008)

The Potential Abuse of the Subpoena Power under the Inevitable Discovery Doctrine by Jeffrey D. Coren, 11 U.Pa. J. Const. L. 755 (2009)

The Viability of Area Warrants in a Suspicionless Search Regime by Christopher Lee, 11 U.Pa. J. Const. L. 1015 (2009)

Apartment complex manager’s office reported to narcs that what appeared to be drug and money exchanges were occurring at regular intervals on a cul-de-sac in the apartment complex, and occupants were complaining. The exchanges occurred between non-tenants. The police surveilled and another exchange occurred, and that was reasonable suspicion for a stop. United States v. Woods, 2010 U.S. Dist. LEXIS 637 (N.D. Ind. January 5, 2010)*:

The Court finds the following facts to be specific and articulable facts giving rise to a particularized and reasonable suspicion that the occupants of the two vehicles meeting at the Plumwood Apartments on March 31, 2009, were engaged in illegal drug trafficking. Twice a month over the course of several months, two men backed their vehicles up to a wooded area at the end of a cul-de-sac in an apartment complex. The two men would meet briefly, just long enough to exchange a loaded garbage bag for a duffel bag. They were not tenants of the apartment complex, and the vehicles did not belong to anyone who lived at the complex. One of the cars that was always present was from Ohio. Only one road provided access to the meeting spot, thus allowing the men to see any approaching threats and view possible police presence.

The behavior of these individuals, viewed from the perspective of experienced narcotics detectives, reasonably suggested that the occupants of the vehicles were at the apartment complex for the purpose of conducting a drug deal.

Consenter had apparent authority to consent: She’d lived there two months, shared bank statements mailed to that address, came and went as she pleased. United States v. Bouie, 2010 U.S. Dist. LEXIS 960 (D. Utah January 6, 2010).*

Open shed door and open camper door was a reasonable belief that a burglary occurred and justified a warrantless entry. United States v. Wells, 2009 U.S. Dist. LEXIS 122391 (E.D. Mo. December 15, 2009).*

Delay in stopping, furtive movements, and smell of marijuana smoke justified a frisk of the car. The car was also registered at the location of a recent drive-by. United States v. Barefield, 2010 U.S. Dist. LEXIS 625 (D. Kan. January 5, 2010).*

Defendant pulled off I-70 in Kansas after coming upon a ruse checkpoint. At that exit were only a few houses. He was followed and he pulled into a driveway, saw the police, and was startled. The officer could conclude that there was either reasonable suspicion the car was carrying drugs or they were casing houses for a burglary. [This is a stretch to find reasonable suspicion, which it does.] United States v. Neff, 2010 U.S. Dist. LEXIS 623 (D. Kan. January 5, 2010):

The Supreme Court has held that, although a defendant’s presence in a high-crime area is not sufficient to warrant an investigative detention, a person’s intentional evasion of police while in a high-crime area and apparent “nervous, evasive behavior” are pertinent factors in determining whether the stop was supported by “reasonable suspicion.” Based on his extensive training and experience in drug interdiction, Trooper Smith’s good faith observations on July 31, 2009, were sufficient under the totality of the circumstances to rise to the level of “reasonable suspicion” that the driver and occupants were evading the drug check lane or attempting to avoid Trooper Smith because they were engaged in illegal activity, whether it was the transport of drugs or casing houses for a possible burglary, as Trooper Smith originally suspected. The driver left the Interstate immediately after passing drug check signs; however, he did not immediately loop back onto the Interstate at the first available opportunity, nor did he use the first available private driveway to turn around; his license plate indicated he did not live in Wabaunsee County; furthermore, when he noticed the patrol car behind him, he seemed unsettled and immediately pulled out of the private drive. Based on Trooper Smith’s training and experience, such uncertain driving patterns immediately after passing signs indicating a drug check, and the driver’s nervous reaction upon seeing a marked patrol car, were sufficient to establish reasonable suspicion for a short investigatory detention.

Defendant’s stop was with PC for a traffic violation, but he pulled over, one got out, and the car fled. There was no stop until the car finally pulled over. United States v. Moore, 2010 U.S. Dist. LEXIS 814 (E.D. Pa. January 6, 2010).*

Defendant’s § 2255 IAC Fourth Amendment claim was the same as his direct appeal and could not be relitigated. Digsby v. United States, 2010 U.S. Dist. LEXIS 867 (W.D. N.C. January 6, 2010).*

“All records” search was authorized by the showing of probable cause. And, “[g]iven the complex nature of the criminal scheme and the number of years in which it was ongoing, a lack of a specific time frame in the search warrants is not sufficient in of itself to render the warrants constitutionally overbroad. See United States v. Gotti, 42 F. Supp. 2d 252, 274 (S.D.N.Y. 1999) (lack of time limitation did not render warrant defective).” United States v. Hernandez, 2010 U.S. Dist. LEXIS 719 (S.D. N.Y. January 6, 2010)*:

However, the nature of the location and related alleged criminal activity as described by the affidavit indicates that the “all records” exception is applicable to this search. See Nat’l City Trading Corp. v. United States, 635 F.2d 1020, 1026-27 (2d Cir. 1980). “When the criminal activity pervades that entire business, seizure of all records of the business is appropriate, and broad language used in warrants will not offend the particularity requirements.” United States Postal Serv. v. C.E.C. Servs., 869 F.2d 184, 187 (2d Cir. 1989); see also United States v. Sugar, 606 F. Supp. 1134 (S.D.N.Y. 1985). The affidavit describes a number of facts that indicate the business at the Clearfield Office location was thoroughly permeated with criminal activity: there was little activity for several months after signing the lease; the office was not used during normal business hours but typically only at night; three different business names related to the preparation of tax returns were associated with the office despite being only one business; maintenance staff never saw customers going in or out of the office; EFINs registered to different locations and individuals were nevertheless traced back to the location; and high rates of fraudulent returns were filed from EFINs associated with the location. “[I]t is not necessary that the affidavit…set forth specific factual evidence demonstrating that every part of the enterprise in question is engaged in fraud…[r]ather, the affidavit need contain only sufficient factual evidence of fraudulent activity from which a magistrate could infer that those activities are just the tip of the iceberg.” United States v. Burke, 718 F. Supp. 1130, 1140 (S.D.N.Y. 1989) (but refusing to apply exception because of two discrete businesses, only one of which permeated by fraud). Based on the information provided by the affidavit, at the Clearfield Street Office, “criminal activity permeates much of the business,” Dinero Express, Inc. 2000 WL 254012 at *10, and there was little that could be done to further cabin the scope of the search at that location, C.E.C. Servs., 869 F.2d at 187 (noting that it would be “virtually impossible to segregate documents” where most of the business was likely involved in criminal activities). “The complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect’s possession.” Andresen v. Maryland, 427 U.S. 463, 482 (1976).

A citation to appear is not a Fourth Amendment seizure. The Second Circuit thus joins the other circuits. Here, Burg ignored the ticket and a warrant was issued. Burg v. Gosselin, 09-0708-cv (2d Cir. January 7, 2010):

We hold that the issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restrictions, does not constitute a Fourth Amendment seizure. This summons does no more than require Burg to appear in court on a single occasion, and operates to effectuate due process. There is no restriction on travel, which mattered in Murphy. Moreover, in Murphy, there were eight court appearances, not the single appearance required by the summons issued by Gosselin. The number of appearances may bear upon whether there was a seizure–though it is hard to see how multiple appearances required by a court, or for the convenience of the person answering the summons, can be attributed to the conduct of the officer who issues it. … Finally, Burg’s alleged offense was an infraction, and the summons thus does not impose the burdens, identified by Justice Ginsburg, that are imposed when “[a] person fac[es] serious criminal charges.” Albright, 510 U.S. at 278 (Ginsburg, J., concurring).

III

Other Circuits that have considered this issue have uniformly determined that such a summons (at least one that requires no more than a single court appearance) does not constitute a Fourth Amendment seizure.

The officer got defendant’s consent to take and search his computer by saying that he wanted the child pornography to locate the abused children. This was not a material misrepresentation to get consent. It doesn’t work that way in getting statements, either. Computer search not suppressed. United States v. Webb, 2010 U.S. Dist. LEXIS 75 (S.D. Ala. January 4, 2010):

Webb’s primary argument is that he was tricked into consenting because he believed that the agent’s purpose was to find and protect the children that were depicted in the images. The recording clearly supports a finding that the agent’s statement led Webb (or any reasonable person) to believe that the agent’s primary purpose for asking for consent was to find the abused children. However this does not render the consent involuntary. In Tukes v. Dugger, 911 F.2d 508, 516 (11th Cir. 1990) the Court rejected the defendant’s “contention that police are under an obligation to tell a suspect that he is the sole suspect when they seek consent for a search[]” and held that “[t]o require that a suspect be fully aware of the investigator’s view of the degree of the suspect’s involvement in the offense would contradict Schneckloth.” The same reasoning is applicable in this instance.

Moreover, the recording does not support a finding that the agent materially misrepresented the nature of the inquiry. See U.S. v. Prudden, 424 F.2d 1021, 1033 (5th Cir. 1970) (providing that “the mere failure of a revenue agent … to warn the taxpayer that the investigation may result in criminal charges, absent any acts by the agent which materially misrepresent the nature of the inquiry, do not constitute fraud, deceit and trickery[]”). No doubt, it is a primary focus of the FBI in all child pornography cases to locate the producer of the pornography as well as the abused children; thus the court finds these statements to be true and not misleading. As to Webb’s potential exposure to criminal prosecution, in this case the agent clearly told Webb that he already knew that child pornography images were downloaded to Webb’s gigatribe account. The fact that the agent did not explain to Webb that Webb could be criminally prosecuted for possession of child pornography was not a material misrepresentation.

In light of Gant sending police and courts back to the automobile exception or inventory search, the Fourth Circuit did a slight refresher on the law of inventory search of a closed container in a car. The inventory policy did not say that closed containers could be searched, but it is implicit. United States v. Matthews, 2009 U.S. App. LEXIS 28764 (4th Cir. December 31, 2009):

n.7 “[a]n officer’s suspicion that contraband may be present [in the vehicle] does not invalidate an otherwise lawful inventory search.” United States v. Cox, No. 90-5853, 1992 U.S. App. LEXIS 2229, 1992 WL 29136, at *3 (4th Cir. Feb. 20, 1992); see also United States v. Lewis, 3 F.3d 252, 254 (8th Cir. 1993); United States v. Cecala, No. 99-4049, 2000 U.S. App. LEXIS 384, 2000 WL 18948, at *2 (10th Cir. Jan. 12, 2000).

A police department’s policy on inventory searches does not have to specifically use the phrase “closed containers” to permit the search and seizure of such items. See, e.g., United States v. Richardson, 121 F.3d 1051, 1055-56 (7th Cir. 1997); Thompson, 29 F.3d at 66; United States v. Wilson, 938 F.2d 785, 789-90 (7th Cir. 1991). In Thompson, for example, the Second Circuit examined whether certain inventory search regulations provided standardized criteria as to the opening of closed containers. The regulations stated, in relevant part, “A member of the Department who impounds any motor vehicle shall inventory the contents of the vehicle and record the results. … It is not necessary to enter locked portions of any vehicle to conduct an inventory search when keys to enter are not available.” 29 F.3d at 66. The court determined that the regulations need not “specifically mention the term ‘closed containers'” to regulate the opening of such containers. Id. Instead, the court found that “[t]he terms ‘contents’ and ‘locked portions’ in the regulations provide sufficient elucidation to satisfy the constitutional requirements for an inventory search of a closed container when keys are available.” Id.

Thermal imaging 2010

Orin Kerr on Volokh Conspiracy: Can the Police Now Use Thermal Imaging Devices Without a Warrant? A Reexamination of Kyllo in Light of the Widespread Use of Infrared Temperature Sensors.

Judge reprimanded and sued for ordering drug test without cause

Tennessee Judge Reprimanded and Sued For Policy of Forced Drug Tests Based on Courtroom “Hunches”. The judge is reported to have selected an observer in his court for a court ordered drug test based solely on a hunch, without evidence to support it.

‘Move On’ Orders as Fourth Amendment Seizures by Stephen E. Henderson, Widener University School of Law, 2008 B.Y.U. L. Rev. 1. Abstract:

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as well as the potential for discriminatory harassment if such orders are unrestricted, and thus state and local legislatures should investigate how best to restrict the MO authority of their agents.