Defendant lived with his grandfather, but the living arrangement was such that there was little privacy interest such that the grandfather had common authority to consent to a search. During the suppression hearing, the grandfather referred to his grandson’s area as his “living quarters,” but it was apparent that he usually walked through it during the day to get around the house. United States v. Cowart, 2009 U.S. Dist. LEXIS 49366 (W.D. Tenn. June 5, 2009)*:

Cowart had no property interest in the area in which he lived, whether a tenancy or freehold estate. While ownership is not dispositive as to common authority, someone who lives in a house pursuant to the goodwill of family members might expect a lesser degree of privacy–at least in relation to those owners–than a tenant who pays rent. C. Cowart referred to the area as his grandson’s “private domain” and stated that he and his wife rarely disturbed him. Simply because Cowart’s grandparents generally respected his privacy, however, does not necessarily give rise to a tacit understanding that they could not inspect certain rooms of their house without his permission. While Cowart “occasionally” locked the doors to his rooms, the entrance to his bedroom apparently was unlocked on the night of October 22, despite the fact that he had several weapons lying in the open. Additionally, after C. Cowart had checked the gun closet in his second floor office, he apparently had no reservations about walking through his grandson’s room on the way back to the kitchen. This suggests that C. Cowart did not normally have to ask for permission to enter his grandson’s living area and that he had “joint access or control [of this area] for most purposes.” Randolph, 547 U.S. at 110 (quoting Matlock, 415 U.S. at 171 n.7). After considering all the relevant circumstances, the Court finds that C. Cowart had common authority to consent to a search of his grandson’s living quarters.

Defendant was home from college for the summer when he was allegedly involved in some robberies, and he stayed with his parents and paid no rent. The evidence supported that he had no expectation of privacy in the house separate from his parents. Moreover, the officers could reasonably believe that the parents had common authority to consent. Warner v. State, 299 Ga. App. 56, 681 S.E.2d 624 (2009).*

Defendant was parked when a police officer pulled up with his overhead lights on. Even though the initial stop was not a “stop,” the lights conveyed that the defendant was not free to leave, and it was without reasonable suspicion. State v. Willoughby, 211 P.3d 91 (Ida. 2009).

Defense counsel were not ineffective for not filing a motion to suppress defendant’s search by a security guard who was not a state actor. [Defendant was operating under advice from a jailhouse lawyer that the issue was viable.] State v. Butler, 2009 WI App 52, 317 Wis. 2d 515, 768 N.W.2d 46 (2009).*

Officers were justified in an exigent entry because an apparent burglar was lurking at the window before the officer got to the door, and the people inside were unusually guarded [like there was somebody inside holding them hostage]. State v. Araiza, 209 P.3d 668 (Ida. App. 2009).*

Officer came to a motel room called by management because of marijuana smoking. He did a knock-and-talk and marijuana smoke came out the door. His using his foot to block the door from shutting was a search by crossing the threshold. Consent thereafter was invalid. State v. Hudson, 209 P.3d 196 (Ida. App. 2009):

The police officer’s unlawful entry into Hudson’s motel room was a violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. The unlawful entry never ended; therefore, the search and acquisition of the incriminating evidence was contemporaneous with the unlawful activity. No intervening circumstances existed which would independently justify the ongoing, unlawful entry. Thus, Hudson’s consent to the search of his motel room was rendered invalid and the incriminating evidence acquired during the search must be suppressed as the fruit of the Fourth Amendment violation.

Officers had reasonable suspicion to detain the defendants for aggravated robbery, and that justified handcuffing them. State v. Doakes, 2009 Ohio 1407, 2009 Ohio App. LEXIS 1177 (2d Dist. March 27, 2009).*

Defendant’s search incident was justified by the outstanding warrant for her arrest, not the automobile exception. State v. Gray, 2009 Ohio 1411, 2009 Ohio App. LEXIS 1175 (2d Dist. March 27, 2009).*

Delegation of a federal search warrant to a tribal SWAT team was not a violation of Rule 41 because tribal officers are “federal officers.” Casillas v. United States, 2009 U.S. Dist. LEXIS 25662 (D. Ariz. February 11, 2009).*

The police sought consent to search for marijuana plants, and that was the extent of defendant’s consent. After the first part of the search when the consent form was presented, the consent form was not limited to marijuana plants, and child porn found during the search was admissible. Verges v. State, 13 So. 3d 525 (Fla. App. 4 DCA 2009), rehearing denied 2009 Fla. App. LEXIS 12650 (Fla. Dist. Ct. App. 4th Dist., Aug. 20, 2009).*

Record supported finding that the consent was consensual, but the case was remanded to determine whether the trial court applied the correct legal standard. State v. Gentry, 19 So. 3d 389 (Fla. App. 2d DCA 2009).*

Defendant’s objection to admission of evidence seized from his car was not specific enough to identify what was admitted. Also, the continuing objection for trial was not specific enough to preserve the issue for appeal. State v. Martin, 291 S.W.3d 269 (Mo. App. 2009).*

The record supports the trial court’s finding that defendant invited the officer in the house to see what defendant had been drinking in the refrigerator and trash can. State v. Pemberton, 2009 Ohio 3177, 2009 Ohio App. LEXIS 2780 (11th Dist. June 30, 2009).*

While the affidavit for the search warrant did not specifically state the date of the informant’s observations of drugs in defendant’s house, it was apparent that it was within a three week span before the warrant issued, so it was not stale. State v. Johnson, 2008 Ohio 5907, 2008 Ohio App. LEXIS 4960 (4th Dist. November 5, 2008).*

Schmerber applies to taking of breath and blood in Illinois. People v. Carey, 386 Ill. App. 3d 254, 325 Ill. Dec. 848, 898 N.E.2d 1127 (2008):

In light of the above, it is clear that defendant’s consent to the breath test, knowing or otherwise, is not a factor to be considered in determining whether the test results are admissible at trial. Rather, irrespective of whether defendant was compelled to submit to the test during an administrative investigation, the proper fourth amendment inquiry is whether the police had probable cause to arrest defendant and charge him with DUI, whether the delay caused by obtaining a search warrant would have risked the loss of evidence, and whether the procedure employed to obtain the breath sample was reasonable.

Officer’s testimony credited that defendant was swerving, and that justified the stop. State v. Ross, 2008 MT 369, 346 Mont. 460, 197 P.3d 937 (2008).*

Miranda does not apply to questions at the border (here, JFK Customs). United States v. Miller, 2009 U.S. Dist. LEXIS 62396 (E.D. N.Y. July 21, 2009):

Routine questioning by custom officers at border entry points does not constitute custodial interrogation and therefore does not implicate Miranda. United States v. Silva, 715 F.2d 43, 47 (2d Cir. 1983) (holding that questions directed to a person’s citizenship, the length and purpose of her travel, the items she was carrying and what she had to declare were routine questions necessary to protect the nation’s borders and, thus, did not require Miranda warnings). The mere fact that a defendant is not forthcoming with his true pedigree information does not turn a routine admissibility interview into a non-routine interview. See Tabbaa v. Chertoff, 509 F.3d 89, 100 (2d Cir. 2007) (“[B]order crossers cannot, by their own non-compliance, turn an otherwise routine search into a non-routine one.”). Similarly, the fact that a defendant’s responses may have evidentiary value in the charges against him is, without more, insufficient to trigger a Miranda requirement when the questions answered are part of a routine immigration inquiry. See United States v. Adegbite, 877 F.2d 174 (2d Cir. 1989) (declining to suppress a defendant’s admission that he was the person named in an arrest warrant, even where the admission would have evidentiary value in the case against him, because the agents were exercising prudence in asking the question before executing the warrant).

Alleged illegal seizure of a notebook by opening it during an alleged illegal administrative search was minimal and impossible to separately award damages for. It is subsumed within the illegal search issue. Elkins v. District of Columbia, 636 F. Supp. 2d 29 (D. D.C. 2009).*

Officers who entered after the first officers were entitled to assume that the first officers were there lawfully, relying on Groh. Arias v. United States Immigration & Customs Enforcement Div. of the Dep’t of Homeland Sec., 2009 U.S. Dist. LEXIS 61519 (D. Minn. July 17, 2009).*

Search of car was by consent. By the time the officer went under the hood, he had PC. United States v. Cathey, 2009 U.S. Dist. LEXIS 61836 (W.D. Ky. July 10, 2009).*

The actions the officers saw did not amount to reasonable suspicion of criminality. They later learned of some suspicious things, but they didn’t have it when the defendant was stopped and questioned. And, even that was really thin: “simply too innocuous to be of value in ascertaining the propriety of any Terry stop of Rios-Carreon on July 29, 2008.” United States v. Rios-Carreon, 2009 U.S. Dist. LEXIS 62108 (W.D. Mo. May 26, 2009).*

Plaintiff city employee stated a claim for a Fourth Amendment violation for the city’s surreptitiously recording telephone calls to and from the department plaintiff ran. Qualified immunity also denied. Narducci v. Moore, 572 F.3d 313 (7th Cir. 2009):

Nor can this court take at face value Lemm and Moore’s claim that Narducci could not have expected his phone calls to remain private in a crowded work area. Narducci claimed in his deposition testimony that when discussing a confidential matter he “went to a phone where there wasn’t a lot of people working nearby.” If true, this would be sufficient for the jury to conclude that Narducci had a subjective expectation of privacy when using one of the village phone lines.

Lemm and Moore also argue, however, that even if Narducci had a subjective expectation of privacy it was not an objectively reasonable one. Their contention is that society would not recognize a reasonable expectation of privacy in a phone line provided by the Village of Bellwood for public purposes. Under their theory, the need to monitor the efficient provision of public services militates against an expectation of privacy on such a phone line. This broad exclusion is in tension with language from the Ortega opinion rejecting such a categorical approach to workplace privacy rights. See Ortega, 480 U.S. at 717 (“Given the societal expectations of privacy in one’s place of work expressed in both Oliver and Mancusi, we reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work.”). As the Court found in Ortega, the idea that one could conduct confidential business at work, and have an expectation of privacy when doing so, is not per se unreasonable.

Lemm and Moore also argue that there was no “search” here within the meaning of the Fourth Amendment because, while the calls were recorded, there was no evidence that anyone ever listened to them. Their claim here is that if nobody ever learned about the contents of the phone calls then nobody did anything that could have run afoul of the Fourth Amendment. Narducci argues that we cannot credit this claim at summary judgment because there is a factual dispute about whether anyone listened to the phone calls. Narducci has not come forward with any evidence that anyone listened to the calls, and is really alluding to the possibility of a factual dispute more than anything else. 2 Nevertheless, this is not a proper ground for summary judgment. The defendants ask us to infer from the absence of evidence in the record that nobody from the Village of Bellwood ever listened to the recorded phone calls, but drawing that inference would be incompatible with the requirement that we draw all reasonable inferences in favor of the non-moving party.

Officers with specific training and experience in overweight and overwidth trucks had reasonable suspicion for plaintiff’s stop, despite the permits plaintiff had. The truck was, in fact, over the weight and width in the permit papers. Reid Mach., Inc. v. Lanzer, 614 F. Supp. 2d 849 (N.D. Ohio April 30, 2009).*

On habeas, the Fourth Amendment merits question is irrelevant. Matthews v. Workman, 571 F.3d 1065 (10th Cir. 2009)* (death penalty case):

Mr. Matthews argues that Oklahoma misapplied Fourth Amendment doctrine in reaching these conclusions, but that is not the question before us. The question is whether he had a full and fair opportunity to present his Fourth Amendment claims in state court; he undoubtedly did.

(Affirmed en banc Matthews v. Workman, 577 F.3d 1175 (10th Cir. 2009).)

Officer had reasonable suspicion to stop defendant at a gun show for carrying a concealed weapon, which was still a crime even though there were plenty of people there carrying guns that were not concealed. United States v. Montoya-Rodriguez, 2009 U.S. Dist. LEXIS 57655 (N.D. Okla. July 7, 2009).*

Defendant was stopped for a traffic offense and her license turned out to be suspended. Because she was subjected to a custodial arrest, a search incident of the car was appropriate. State v. King, 2009 Ohio 173, 2009 Ohio App. LEXIS 118 (5th Dist. January 16, 2009).*

Odor of raw marijuana found during a traffic stop was probable cause. The search of the “cargo area” was proper because that was a place where it could be found. State v. Gonzales, 2009 Ohio 168, 2009 Ohio App. LEXIS 149 (6th Dist. January 16, 2009).*

Odor of raw marijuana was found during a traffic stop, and the defendant’s conduct justified the officer searching for safety reasons as well. State v. Haidet, 2009 Ohio 205, 2009 Ohio App. LEXIS 181 (5th Dist. January 20, 2009).*

Police repeating the CI’s statement that the defendant’s apartment had “1” on the door, but it turned out that it did not, was not a reckless false statement of the officer under Franks. Apartment 1 was searched. State v. Evans, 2009 Ohio 241, 2009 Ohio App. LEXIS 221 (1st Dist. January 23, 2009).*

Defendant’s arrest was unlawful, but his assaulting the officer during the illegal arrest was not suppressed. State v. Cook, 273 S.W.3d 562 (Mo. App. 2008).*

Jail seizure of Romanian language documents from defendant’s jail cell did not violate Fourth or Sixth Amendments because the documents were not used in the case or to provide investigative leads. It had no effect on the verdict. Gheorghiu v. Commonwealth, 53 Va. App. 288, 671 S.E.2d 407 (2009), opinion withdrawn and replaced Gheorghiu v. Commonwealth, 54 Va. App. 645, 682 S.E.2d 50 (2009) (same result).*

CI told police about defendant’s meth lab at home. Police went there without a warrant and could smell it from outside. They had PC and exigent circumstances for a warrantless entry. United States v. Clarke, 2009 U.S. App. LEXIS 9913 (8th Cir. May 8, 2009):

Exigent circumstances also existed. Because the officers had probable cause to believe methamphetamine was being produced in Clarke’s home, the officers reasonably concluded there was a potential threat to the safety of the officers, anybody inside the home, and anyone in the surrounding area. See United States v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002) (declaring, “[o]ur court has consistently considered safety factors in determining whether exigent circumstances existed,” and “[t]he potential hazards of methamphetamine manufacture are well documented, and numerous cases have upheld limited warrantless searches by police officers who had probable cause to believe they had uncovered an on-going methamphetamine manufacturing operation”). The officers’ concern for the safety of everyone involved in the situation was reasonably heightened after the officers were unable to contact anyone inside the home after knocking and calling the listed telephone number. See id. (holding exigent circumstances existed when there was an odor of ether, possible equipment for methamphetamine manufacturing, and the officers could not determine whether anyone was hiding or lying unconscious, or whether there was a dangerous heat source, in the suspected methamphetamine lab). We therefore conclude the district court did not commit error in denying Clarke’s motion to suppress because the warrantless entry of Clarke’s home on August 23, 2005, was justified by probable cause and exigent circumstances.

Consent was shown to be voluntary under the totality [without saying what it was]. United States v. Ramirez, 326 Fed. Appx. 182 (4th Cir. 2009)* (unpublished).

Defendant’s father had apparent authority to consent to a search of the family computer for which he paid the internet access. United States v. Mullen, 329 Fed. Appx. 61 (9th Cir. 2009)* (unpublished):

Here, Mullen’s father had actual authority to consent to the search of the computer he purchased for his family’s use, located in an unoccupied room, and for which he paid for the internet access. See United States v. Dearing, 9 F.3d 1428, 1429 (9th Cir. 1993). The district court’s determination that Mullen’s father’s consent was voluntary was not clearly erroneous where the officers were dressed in plain clothes and never showed their guns as a display of authority. See United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir. 2000). Furthermore, Mullen’s father signed a consent form which clearly informed him of his right to choose not to consent.

Defendant was not told he was free to leave during traffic stop, but he should have known he was when the ticket for speeding was given. Consent was asked for while defendant was still there. United States v. Zambrano, 325 Fed. Appx. 369 (5th Cir. 2009)* (unpublished) [Note: I never buy that the defendant should have known he was free to leave until he is specifically told he was free to leave. He was stopped with flashing lights of the police car parked behind him, and the lights are not just there for safety purposes for the cars on the side of the road–that was how the officer effected and continues the stop.]

The Suffolk County Sheriff refused to produce inmate jail calls in response to a grand jury subpoena. Since there is no reasonable expectation of privacy in a jail telephone call, the contempt order is affirmed. (The inmates have no greater state constitutional right.) In re A Grand Jury Subpoena, 454 Mass. 685, 912 N.E.2d 970 (2009)*:

The sheriff asks us to conclude that the constitutional privacy rights of the pretrial detainee or inmate will not be violated where, in response to a grand jury subpoena, the sheriff provides recordings of the detainee’s or inmate’s telephone calls to the grand jury. We conclude that, where the sheriff’s policy of monitoring and recording detainees’ and inmates’ telephone calls is preceded by notice to all parties, and further, where the recording and monitoring is justified by legitimate penological interests, no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena.

The exclusionary rule was not applied to a stop outside an officer’s territorial jurisdiction to give a warning. After the defendant was stopped, it was apparent he was DWI. Delker v. State, 2009 Miss. App. LEXIS 597 (September 11, 2009).*

Defendant’s stop for an expired license led to finding an outstanding warrant. The attention of the police was drawn because Wal-Mart called to tell the police that defendant had bought a huge number of matches. The odor of meth was coming from the car. The stop and arrest were valid, without regard to the smell. Neither the driver nor the passenger had a license, so the vehicle was going to be towed. Defendant produced the matches before the search. Wade v. State, 2009 Ark. App. LEXIS 690 (September 2, 2009).*

Information to the police that shots may have been fired was sufficient to justify a stop when another person said he “thought” that the people were in a particular van. The standard is reasonable suspicion, not probable cause. Key here was that the statement came from an identified citizen informant. United States v. Booker, 579 F.3d 835 (7th Cir. 2009):

Tennin’s statements to police provided the officers with enough information for officers to believe a crime occurred and that Booker may have been involved. First, police received a 911 call reporting gunshot fire. When Officer Presley arrived, Tennin flagged him down, identified himself, and reported a battery that occurred earlier in the evening. Tennin gave the address of where the battery occurred and the area in which he believed he heard the gunshot. He also gave a specific description of a suspect and pointed out Booker’s van as the one that he thought carried the men involved in the battery.

… Tennin was willing to identify himself to police and have officers speak with his daughter, which differentiates him from other anonymous tipsters whose reports may not give rise to reasonable suspicion. …

Whether the officers had reason to believe Booker was the person who committed the crime is a closer call. Tennin originally stated that the men involved in the battery left on foot, but then pointed out Booker’s van as it entered the driveway. Although it is true Tennin said he “thinks” Booker’s maroon van was the van the suspects were in, that conjecture does not necessarily make the statement unreliable. Reasonable suspicion is a lower threshold than probable cause and “‘does not deal with hard certainties, but with probabilities.'” United States v. Jerez, 108 F.3d 684, 693 (7th Cir. 1997) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). Tennin said the suspects left on foot and that a group of men, not just one man, was involved, but that does not change the fact that Tennin told police that he thought the people involved in the incident were in the van Booker was driving. That Booker’s appearance did not exactly match the description offered by Tennin does not help Booker because Officer Campbell was about 200 feet away from Booker when he stopped the van and could not have seen whether Booker was bald under his cap.

This vehicle search was governed by the automobile exception and not Gant because the officers saw ammunition on the front seat, and that gave PC to look for a gun it would match. United States v. Black, 2009 U.S. Dist. LEXIS 77111 (M.D. Fla. July 7, 2009).*

The government [just barely] showed that the drug dog and the handler were “well qualified” (Caballes). While the dog was certified through 2006, it was not certified since, but its general reliability was enough. [Essentially, the handler can make the dog qualify by testifying to a good track record.] United States v. Colon-Arenas, 2009 U.S. Dist. LEXIS 77953 (N.D. Ind. August 25, 2009):

The record discloses that this dog and handler were well-trained. They underwent a five-week training period together, and five subsequent two-day sessions that each provided fifteen hours of training. Although that training ended thirty months before the Monte Carlo search, Officer Kanaar continued to provide the dog with eight hours of training per month. Officer Kanaar isn’t a certified trainer, but it is reasonable to infer he learned something about how to train his dogs in the sessions in Denver.

Most importantly, Officer Kanaar testified that he has found his dog to be reliable at detecting narcotics. That is, after all, the bottom line when it comes to evaluating information on which probable cause was found. …

At bottom, then, this case involves an alert by a highly trained narcotics detection dog who has been reliable in the past. Were the standard higher than probable cause, or if the dog’s alert provided the only basis for belief that drugs were in the Monte Carlo, the lack of recent recertification (and lack of evidence about just what the lack of recertification means) and more specific reports than “has been reliable in the past” might defeat use of the dog’s alert. Under the circumstances of this case, though, the government’s showing is minimally sufficient.

In a patdown that produces drugs, the officer can handcuff the defendant without elevating the stop to the arrest because of the potential danger to the officer from the discovery. Seizure of one thing from the defendant’s pocket that might have been unreasonable did not transform the frisk into an unlawful stop. An inventory of his vehicle ultimately occurred for independent reasons unrelated to the excessive frisk. [Note, the government also sought leave to argue McCane and the Gant GFE, which was moot.] United States v. Albert, 579 F.3d 1188 (10th Cir. 2009).

The Ninth Circuit in Balco en banc (panel opinion: United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008)) determines that seized computer information needs limits under the “venerable” pre-“information age” Tamura case (United States v. Tamura, 694 F.2d 591 (9th Cir. 1982)). This is a remarkable effort at keeping computer searches from becoming general searches or excuses for plain view inside the hard drive. United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (by Kosinski, J.):

Tamura, decided in 1982, just preceded the dawn of the information age, and all of the records there were on paper. The government was authorized to seize evidence of certain payments received by Tamura from among the records of Marubeni, his employer. To identify the materials pertaining to the payments involved a three step procedure: Examining computer printouts to identify a transaction; locating the voucher that pertained to that payment; and finding the check that corresponded to the voucher. 694 F.2d at 594-95. The government agents soon realized that this process would take a long time unless they got help from the Marubeni employees who were present. The employees, however, steadfastly refused, so the agents seized several boxes and dozens of file drawers to be sorted out in their offices at their leisure. We disapproved the wholesale seizure of the documents and particularly the government’s failure to return the materials that were not the object of the search once they had been segregated. Id. at 596-97. However, we saw no reason to suppress the properly seized materials just because the government had taken more than authorized by the warrant. For the future, though, we suggested that “[i]n the comparatively rare instances where documents are so intermingled that they cannot feasibly be sorted on site, … the Government [should] seal[ ] and hold[ ] the documents pending approval by a magistrate of a further search, in accordance with the procedures set forth in the American Law Institute’s Model Code of Pre-Arraignment Procedure.” Id. at 595-96. “If the need for transporting the documents is known to the officers prior to the search,” we continued, “they may apply for specific authorization for large-scale removal of material, which should be granted by the magistrate issuing the warrant only where onsite sorting is infeasible and no other practical alternative exists.” Id. at 596.

No doubt in response to this suggestion in Tamura, the government here did seek advance authorization for sorting and segregating the seized materials off-site. But, as Judge Cooper found, “[o]nce the items were seized, the requirement of the Warrant that any seized items not covered by the warrant be first screened and segregated by computer personnel was completely ignored.” Brushing aside an offer by on-site CDT personnel to provide all information pertaining to the ten identified baseball players, the government copied from CDT’s computer what the parties have called the “Tracey Directory” which contained, in Judge Cooper’s words, “information and test results involving hundreds of other baseball players and athletes engaged in other professional sports.” Counsel for CDT, contacted by phone, pleaded in vain that “all material not pertaining to the specific items listed in the warrant be reviewed and redacted by a Magistrate or Special Master before it was seen by the Government.” Instead, the case agent “himself reviewed the seized computer data and used what he learned to obtain the subsequent search warrants issued in Northern California, Southern California, and Nevada.” Judge Cooper also found that, in conducting the seizure in the manner it did, “[t]he Government demonstrated a callous disregard for the rights of those persons whose records were seized and searched outside the warrant.”. . .

A. Compliance with Tamura

The government argues that it did comply with the procedures articulated in Tamura, but was not required to return any data it found showing steroid use by other baseball players because that evidence was in plain view once government agents examined the Tracey Directory. Officers may lawfully seize evidence of a crime that is in plain view, the government argues, and thus it had no obligation under Tamura to return that property. The warrant even contemplated this eventuality, says the government, when it excluded from the obligation to return property any that was “otherwise legally seized.”

[6] Putting aside the fact that Judges Cooper and Illston, whose courts issued the warrants and whose orders are now final, rejected this argument, it is at any rate too clever by half. The point of the Tamura procedures is to maintain the privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search of office file systems and computer databases. If the government can’t be sure whether data may be concealed, compressed, erased or booby-trapped without carefully examining the contents of every file—and we have no cavil with this general proposition—then everything the government chooses to seize will, under this theory, automatically come into plain view. Since the government agents ultimately decide how much to actually take, this will create a powerful incentive for them to seize more rather than less: Why stop at the list of all baseball players when you can seize the entire Tracey Directory? Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that? Can’t find the computer? Seize the Zip disks under the bed in the room where the computer once might have been. See United States v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004). Let’s take everything back to the lab, have a good look around and see what we might stumble upon.

[7] This would make a mockery of Tamura and render the carefully crafted safeguards in the Central District warrant a nullity. All three judges below rejected this construction, and with good reason. One phrase in the warrant cannot be read as eviscerating the other parts, which would be the result if the “otherwise legally seized” language were read to permit the government to keep anything one of its agents happened to see while performing a forensic analysis of a hard drive. The phrase is more plausibly construed as referring to any evidence that the government is entitled to retain entirely independent of this seizure.

[8] To avoid this illogical result, the government should, in future warrant applications, forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn’t consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.. . .

B. Initial Review by Computer Personnel

[12] To guard against such unlawful conduct in the future, the warrant application should normally include, or the issuing judicial officer should insert, a protocol for preventing agents involved in the investigation from examining or retaining any data other than that for which probable cause is shown. The procedure might involve, as in this case, a requirement that the segregation be done by specially trained computer personnel who are not involved in the investigation. It should be made clear that only those personnel may examine and segregate the data. The government must also agree that such computer personnel will not communicate any information they learn during the segregation process absent further approval of the court. At the discretion of the issuing judicial officer, and depending on the nature and sensitivity of the privacy interests involved, the computer personnel in question may be government employees or independent third parties not affiliated with the government. The issuing judicial officer may appoint an independent expert or special master to conduct or supervise the segregation and redaction of the data. In a case such as this one, where the party subject to the warrant is not suspected of any crime, and where the privacy interests of numerous other parties who are not under suspicion of criminal wrongdoing are implicated by the search, the presumption should be that the segregation of the data will be conducted by, or under the close supervision of, an independent third party selected by the court.

[13] Once the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation may examine only the information covered by the terms of the warrant. Absent further judicial authorization, any remaining copies must be destroyed or, at least so long as they may be lawfully possessed by the party from whom they were seized, returned along with the actual physical medium that may have been seized (such as a hard drive or computer). The government may not retain copies of such returned data, unless it obtains specific judicial authorization to do so. Also, within a time specified in the warrant, which should be as soon as practicable, the government must provide the issuing officer with a return disclosing precisely what data it has obtained as a consequence of the search, and what data it has returned to the party from whom it was seized. The return must include a sworn certificate that the government has destroyed or returned all copies of data that it is not entitled to keep. If the probable cause was shown in the original warrant, it may seek a new warrant or justify the warrantless seizure by some means other than plain view.

C. Federal Rule of Criminal Procedure 41(g)

We have long held that Rule 41(g) is an appropriate means of obtaining the return of property improperly seized by the government. Ramsden v. United States, 2 F.3d 322 (9th Cir. 1993). Though styled as a motion under a Federal Rule of Criminal Procedure, when the motion is made by a party against whom no criminal charges have been brought, such a motion is in fact a petition that the district court invoke its civil equitable jurisdiction. Id. at 324. We agree with the panel that the district court in this case did not abuse its discretion in choosing to exercise that jurisdiction. Comprehensive Drug Testing, 513 F.3d at 1104.

Law.com story here; CNN here; LA Times here; NY Times here.

HazDat.com here.

A shooting range in the Bronx was a closely regulated industry under NYC law. It was even more watched after 9/11. Spinelli v. City of New York, 579 F.3d 160 (2d Cir. 2009):

Spinelli also argues that because the search was warrantless and not conducted pursuant to established regulations, it was necessarily unreasonable. Spinelli claims that the only applicable regulation that permits the police to search a gun store’s premises in New York City is 38 RCNY § 1-06(i), which creates a “cooperative inspection program” whereby gun store owners can set up a time for a voluntary police inspection. Spinelli, however, overlooks a separate provision of the applicable regulations, 38 RCNY § 4-06(a)(3), that provides that the gun dealer’s “premises and firearms [] shall be subject to inspection at all times by members of the Police Department.” (Emphasis added). Spinelli’s allegations that “the Regulations make no provision for warrantless searches,” and that McSherry “ignored the available procedure,” are belied by § 4-06(a)(3).

Nor does the warrantless search authority created by § 4-06(a)(3) violate the Fourth Amendment. The Supreme Court has held that “warrantless administrative searches” are justified where “the burden of obtaining a warrant [would be] likely to frustrate the governmental purpose behind the search.” Camara v. Mun. Ct. of San Fran., 387 U.S. 523, 533 (1967). Under certain circumstances, like those presented here, an effective inspection of a gun dealer’s premises requires that searches be unannounced in order to discover potential security infractions. See United States v. Biswell, 406 U.S. 311, 316 (1972); see also id. (“When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection.”); United States v. Streifel, 665 F.2d 414, 419 n.8 (2d Cir. 1981) (concluding that gun dealers have a greatly reduced expectation of privacy because they know that they are subject to a “full arsenal of governmental regulation”) (quoting Marshall v. Barlow’s Inc., 436 U.S. 307, 313 (1978)). We hold that the warrantless search of Spinelli’s store, conducted pursuant to established regulatory authority, was objectively reasonable and did not violate the Fourth Amendment.

Biographical information obtained in violation of constitutional is subject to the exclusionary rule. State v. Maldonado-Arreaga, 772 N.W.2d 74 (Minn. App. 2009):

The federal circuits have taken different approaches to how Lopez-Mendoza relates to challenges to biographical/identity evidence in criminal proceedings. See United States v. Guevara-Martinez, 262 F.3d 751, 753-54 (8th Cir. 2001) (discussing Fifth, Eighth, and Ninth Circuit cases). The most persuasive discussion is found in Guevara-Martinez. There, appellant was fingerprinted after an illegal traffic stop, and subsequently charged with being an illegal alien found in the United States after deportation. Id. at 752. He moved to suppress fingerprint evidence as well as statements he made about his identity, and the government opposed the motion by relying on the same language from Lopez-Mendoza identified by respondent in this case. Id. After reviewing Lopez-Mendoza and the interpretations of it by the various circuit courts, the Guevara-Martinez court concluded that Lopez-Mendoza’s statement about the suppression of identity did not apply to biographical evidence, such as fingerprint evidence challenged in a criminal proceeding. Id. at 754-55. Rather than apply a broad biographical-information exception to the exclusionary rule, the court addressed the admissibility of the evidence under traditional Fourth Amendment case law. Id. at 755. Specifically, the court determined that, under long-accepted Supreme Court precedent, the exclusionary rule may be applied to fingerprint and other biographical evidence obtained as the result of unlawful arrests and detentions. Id. at 755 (discussing Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643 (1985) and Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394 (1969)).

Coming to the same conclusion, the Tenth Circuit interpreted Lopez-Mendoza and stated that

the Supreme Court’s statement that the ‘body’ or identity of a defendant are ‘never suppressible’ applies only to cases in which the defendant challenges the jurisdiction of the court over him or her based upon the unconstitutional arrest, not to cases in which the defendant only challenges the admissibility of the identity-related evidence.

A defendant may still seek suppression of specific pieces of evidence (such as, say, fingerprints or statements) under the ordinary rules announced in [Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961)] and [Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963)]. A broader reading of Lopez-Mendoza would give the police carte blanche powers to engage in any manner of unconstitutional conduct so long as their purpose was limited to establishing a defendant’s identity.

United States v. Olivares-Rangel, 458 F.3d 1104, 1111 (10th Cir. 2006).

We find this authority persuasive, and we conclude that there is no general principle that biographical information is exempt from the exclusionary rule. As such, the district court erred as a matter of law. We hold that when biographical evidence is obtained through unconstitutional governmental action and a party challenges the admissibility of the evidence, the exclusionary rule applies.

Officers came to defendant’s house for a knock-and-talk, and they saw people fleeing and smelled marijuana. This was exigent circumstances for a “hot pursuit” entry. United States v. Valenzuela-Espinoza, 2009 U.S. Dist. LEXIS 77404 (D. Ariz. August 27, 2009).*

Defense counsel was not ineffective for not asking more questions on cross-examination. He vigorously challenged the third-party’s consent on essentially the same grounds alleged now, but his failure to go further in cross was a matter of strategy. United States v. Snype, 2009 U.S. Dist. LEXIS 77416 (S.D. N.Y. August 21, 2009).*

Defendant was stopped based on classic Terry factors of suspicious activity around banks. When he was frisked, stuff was found that reasonably led the officers to believe that there would be additional evidence in the vehicle, which there was. United States v. Datcu, 2009 U.S. Dist. LEXIS 77197 (D. Minn. August 4, 2009).*

Reasonable suspicion developed immediately on defendant’s stop, and it justified a patdown. United States v. Maxwell, 2009 U.S. Dist. LEXIS 77519 (E.D. Mo. June 18, 2009):

Here, the officer had reasonable suspicion to expand the scope of the stop to request consent to search, based on Defendant’s conduct. Defendant was driving a rental car, and was exceedingly nervous, not looking at the officer and barely speaking to him, even though Defendant plainly knew the officer well enough to address him by his first name. Defendant also made a cryptic comment, stating, “You know what’s going on.” Both while he was in the car, and after he exited and was walking to the patrol car, Defendant was looking around in a manner that caused the officer to have concern that he might try to flee. Moreover, he observed a large bulge in Defendant’s pocket.

Officer’s experience indicated that he was observing a drug buy going down by the way the defendant met up with a car stopping near him and then leaned in. The way he had his hands in his pockets made the officer believe the defendant had a gun. United States v. Dubose, 579 F.3d 117 (1st Cir. 2009).*

Based on the stop of another person who said he got drugs from the defendant, and the defendant was seen coming from the same motel room, the officers had reasonable suspicion to stop him. United States v. Alston, 2009 U.S. Dist. LEXIS 92189 (W.D. Ark. September 25, 2009).*

A window tint violation justified defendant’s stop, which reasonably took 90 minutes because of discoveries about defendant during the stop. United States v. Gonzalez, 2009 U.S. Dist. LEXIS 91833 (M.D. Fla. September 15, 2009).*

Tennessee’s probation search law is virtually the same as the one in Knights, and this one was valid under the totality of circumstances. United States v. Seigle, 628 F. Supp. 2d 784 (E.D. Tenn. 2008).*

Officers had an arrest warrant for defendant, but whether there was probable cause to believe he was there was a close call. But, that entry led to no evidence against him, so there is nothing to suppress. United States v. Giwa, 617 F. Supp. 2d 1086 (D. Nev. 2007).*

In an internet stalking case, the chat session that said that the purported under age girl was under 16 was probable cause for arrest. United States v. Haile, 2009 U.S. Dist. LEXIS 92949 (W.D. Ky. September 28, 2009),*

Officer had only statement from a likely unreliable CI that defendant was carrying drugs, but he stopped defendant for a traffic offense for which there was cause. Then he smelled marijuana, and that gave probable cause for a search. United States v. Corica, 2009 U.S. Dist. LEXIS 92963 (N.D. W.Va. October 6, 2009).*

An application for a search warrant for a videocamera and tape in a child pornography case that was six months after the alleged production was not stale because it was shown that it was likely that both would still be around. Defendant was an “avid videographer” who recorded all kinds of family events. United States v. Coutentos, 2009 U.S. Dist. LEXIS 91751 (N.D. Iowa September 29, 2009).*

There was PC for a child pornography search of defendant’s computer. The affidavit was supported by the officer’s factual testimony linking defendant’s internet protocol address with two separate offerings of unlawful files containing a digital signature identified with 99.99% certainty. As for the GFE, nothing in the record indicated that the agent would have had any reason to believe the affidavit was constitutionally infirm or even questionable. United States v. Harrison, 2009 U.S. App. LEXIS 12071 (10th Cir. June 4, 2009)*:

“It is only when [an executing officer’s] reliance was wholly unwarranted that good faith is absent.” Cardall, 773 F.2d at 1133 (emphasis added); United States v. Medlin, 798 F.2d 407, 409 (10th Cir. 1986) (finding officers’ reliance on warrant was objectively reasonable because warrant affidavit was not devoid of facts); United States v. Wright, 791 F.2d 133, 135 (10th Cir. 1986) (concluding that where the affidavit was not “devoid of factual support,” officers who executed the search warrant were “entitled to rely in good faith upon the decision of that magistrate as provided in Leon and Cardall.”); see also Herring v. United States, 129 S. Ct. 695, 702, 172 L. Ed. 2d 496 (2009) (“[S]ince Leon, we have never applied the [exclusionary] rule to exclude evidence obtained in violation of the Fourth Amendment, where the police conduct was [merely negligent].”).

Cell phone found in a stopped car was admissible either under search incident [relying on Belton and not Gant because this case was decided 18 days before Gant] because the defendant was just in the car and because there was PC for a search of the car. United States v. Florence, 2009 U.S. Dist. LEXIS 46827 (E.D. Pa. April 3, 2009).*

Defendant exited freeway at a ruse checkpoint sign and went into a rest area and stopped. He was approached by an unarmed plain clothes officer who asked questions. He was not seized and voluntarily answered questions which led to his consent. State v. Hedgcock, 277 Neb. 805, 2009 Neb. LEXIS 83 (May 22, 2009).*

Accepting an air quality permit in New Mexico was a waiver of Fourth Amendment rights to the extent the permit holder had to permit air quality inspectors into the mine and plant area. (This case also has an extensive discussion of searches and the administrative exception.) Copar Pumice Co. v. Morris, 632 F. Supp. 2d 1055 (D. N.M. 2008):

The Eighth Circuit’s decision in United States v. Brown is instructive. By accepting the benefits of the Air Quality permit, Copar Pumice knowingly and voluntarily consented to NMED’s right of entry to the facility “at all reasonable times to verify the terms and conditions” of the permit, and upon request, to production of “any records or information necessary to establish” compliance with the terms and conditions of the permit. Air Quality Permit at 8. Similar to the government’s interest in United States v. Brown, New Mexico has a substantial interest in protecting the environment and the public from air pollution, and in establishing effective methods to monitor compliance with state air quality standards. Copar Pumice freely accepted the terms and conditions of its permit, and was aware of the inspection, recordkeeping, and monitoring provisions. Copar Pumice effectively, knowingly, and voluntarily waived its Fourth Amendment rights to searches conducted in compliance with the permit and the statute.

Another wrong article: “Kiss the Fourth Amendment goodbye”

“Kiss the Fourth Amendment goodbye,” posted today by Kathleen Baker, Denver Conservative Examiner, concludes that the Obama Administration granting diplomatic immunity to INTERPOL operating in the United States means that we can “Kiss the Fourth Amendment goodbye.” Once again, a conservative watchdog gets it wrong, in their zeal to demonize the President.

She states: “In a nutshell, Obama granted INTERPOL authority to act within the United States without being subject to the Fourth Amendment ….” President Obama did nothing of the sort. Even if he did, it would be unconstitutional. And, if he did, wouldn’t somebody else with more credibility have reported it before these guys?

President Reagan’s Executive Order 12425 of June 16, 1983 first granted limited diplomatic immunity to INTERPOL, the same as, for example, parts of the United Nations. [Note: As a contractor for the U.N. in Sierra Leone 2004-06, I had the same immunities there under the country’s treaty with the U.N.] On December 16th, the President amended that Executive Order to provide that INTERPOL has broader immunity from search by local, state, and federal government officers and taxes. See 22 U.S.C. § 288a:

Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable.

So, where does it say that INTERPOL gets to act outside the Fourth Amendment? It doesn’t. Nothing in the article or the statute it quotes says a word about it, except the writer’s imagination and lack of reading comprehension. This is just wrong. Dead wrong. Even a commenter got on the bandwagon and agreed without critical analysis. Maybe even without reading. See also the PatriotRoom.com with a slightly different view.

The old early law career saw “RTFS” applies: Read The Frigging Statute.

Update: Agreeing with Baker is BenBarrack.com believing INTERPOL is a foreign police force to bring us to trial in the ICC.

Agreeing with me: This Ain’t Hell.

Update 2: More loonies here. I would almost think that the Far Right can’t read, or they are so morally corrupt they’ll say anything. Either is pathetic.

A motion to reconsider is too late to present disputed material facts to get a suppression hearing. United States v. Allen, 573 F.3d 42 (1st Cir. 2009):

As we have noted, in ruling on appellant’s original motion to suppress, the district court “considered as evidence only the statements made in the affidavits submitted by the parties.” In the affidavit attached to his motion, Allen did not dispute the Government’s version of events related to the search of the vehicle. The affidavit does not contradict the officer’s direct statement that he was able to see the gun in the driver’s side door of the Mercedes by simply leaning over the hood and shining his flashlight into the window. See Staula, 80 F.3d at 604 (noting that an evidentiary hearing was not required where appellant’s affidavit contained no facts that contradicted a police officer’s direct statements). Indeed, the affidavit’s only references to the search of the Mercedes are appellant’s assertions that “[a] Mercedes nearby was opened with a key alleged to have been taken from me and searched” and “I was never seen with the Mercedes and I did not consent or grant permission to the search of the Mercedes.” These vague statements, neither of which even mentions the manner in which Officer Coyne searched the vehicle, were insufficient to call into question the government’s account.

The developing situation during the traffic stop revealed that the vehicle on defendant’s trailer might have been stolen. The length of the stop was not unreasonable because it was hard to get answers from others at 3 a.m. People v. O’Dell, 913 N.E.2d 979 (Ill. App. 2009).*

IP address at defendant’s house was PC to search the house for child porn. The defendant’s argument that a wireless internet connection could be used and a miscreant could have used the internet connection did not nullify the PC. United States v. Courtney, 2008 U.S. Dist. LEXIS 109344 (E.D. Ark. September 22, 2008)*:

Probable cause to search exists if “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238. Law enforcement officers were not required to negate every possible explanation for child pornography having been sent from Courtney’s IP address before applying for a warrant to search the apparent source — Courtney’s computer. When federal agents hear hoof beats, they are not required to eliminate the possibility of zebras before requesting a warrant to look for horses.

In R.I., a breath test is a search incident. State v. DeOliveira, 2009 R.I. LEXIS 88 (June 22, 2009):

Pursuant to the principles set forth in Schmerber, however, a Breathalyzer test is considered a search incident to a lawful arrest and is, therefore, deemed reasonable within the meaning of the Fourth Amendment. Locke, 418 A.2d at 849. In Locke, this Court further noted that the consent of the defendant is irrelevant to a consideration of the constitutionality of a Breathalyzer test; but this Court in Locke further held that, pursuant to the statutory mandate set forth in G.L. 1956 § 31-27-2(b), a valid consent must be obtained from a suspect before the test results may be used at trial. Locke, 418 A.2d at 849. In the case of In re Kean, 520 A.2d 1271 (R.I. 1987), this Court recognized that the right to refuse to take a Breathalyzer test is a statutory, not a constitutional, right; but the Court nonetheless applied the same criteria to the waiver of that right as is used in analyzing the waiver of constitutional rights–namely, whether the waiver was knowing, intelligent, and voluntary. Id. at 1274. We shall conduct our analysis accordingly in the instant case.

Officers did not act inappropriately in detaining 12-14 people present when the police showed up to search the premises. They were outnumbered by the number of people in the place, and deference has to be granted to officers in a fluid situation like that. Muehler v. Mena is distinguished. State v. Palmer, 14 So. 3d 304 (La. 2009).

In subpoenas related to nursing home deaths after Hurricane Katrina, documents produced under subpoena are not “seized” for purposes of La.R.S. 15:41 for return of seized property. In re a Matter Under Investigation, 15 So. 3d 972 (La. 2009).