Defendant did not waive his suppression issue where the facts were not available to the defense before evidence developed at trial. He loses on the merits, however. United States v. Moody, 2009 U.S. App. LEXIS 7166 (5th Cir. April 6, 2009):

For two reasons, Hines has not waived the issue for appeal. First, the government never argued that he waived the issue, so the government has waived its potential waiver argument. Second, in advance of trial the government misstated which police officer had searched Hines’s car, information that was necessary for the pre-trial suppression motion. After defense counsel recognized that error, the court held a full suppression hearing outside the jury’s presence. Therefore, because Hines did not have all the necessary information, and the issue was eventually fully litigated, the suppression issue was not waived.

Defendant well knew at the time he wrote his own consent form that his computer was subject to being forensically examined with software to recover deleted files which he told the officers was on his computer. After the seizure by consent, a search warrant was obtained for the computer. United States v. Luken, 560 F.3d 741 (8th Cir. 2009).*

Officers on the premises with a search warrant for drugs could properly seize evidence of a robbery because it was evidence in plain view. Items with latent prints were properly seized. United States v. Rose, 321 Fed. Appx. 324 (4th Cir. 2009) (unpublished). (Note: For those of you who have argued lack of fingerprinting of a CD was significant, here a latent was recovered from a CD.)

Officers had reasonable suspicion for defendant’s frisk. “The officers had reasonable suspicion to stop Hudnell based on the unresolved 911 call asking for police assistance, Hudnell’s appearance from behind a house that was not his, and Hudnell’s attempt to run away upon further questioning. Further, a reasonable officer would believe that Hudnell was armed and dangerous based on the above facts and his silence as to whether he had a weapon.” United States v. Hudnell, 322 Fed. Appx. 772 (11th Cir. 2009) (unpublished).*

Defendant was stopped for DUI and he was agitated. The officer could ask about whether defendant had a gun in the car without Mirandizing him. United States v. Smith, 322 Fed. Appx. 876 (11th Cir. 2009) (unpublished).*

Defendant on parole who admitted submitting false urine samples gave reasonable suspicion for a house search. Lowery v. United States, 2009 U.S. Dist. LEXIS 30285 (E.D. Pa. March 25, 2009).*

In Montana, exigent circumstances does not permit an entry until the evidence exists in a state capable of being tested, and blood in the body is not. State v. Saale, 2009 MT 95, 350 Mont. 64, 204 P.3d 1220 (2009).*

Officer did not seize the defendant because she was parked when he walked up to her to see what was going on, and the officer observed slurred speech. Objectively, this was a “voluntary exchange.” “A reasonable person in Wilkins’s situation would not have concluded that she was not free to leave.” State v. Wilkins, 2009 MT 99, 350 Mont. 96, 205 P.3d 795 (2009).*

The D.C. District Court erred in not granting a preliminary injunction against neighborhood general crime control roadblocks. This is not the first time the D.C. Cir. has held this. Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009):

Refining the argument slightly, the District contends that the Supreme Court’s category of stops serving “the general interest in crime control” extends only to seizures actually looking for evidence of crime as opposed to seizures designed to deter crime. That argument is unconvincing. Nothing in Edmond limited “the general interest in crime control” to only those instances where a law enforcement officer was seeking evidence of a crime. In Edmond, the Court recognized that a general rule exists that “a seizure must be accompanied by some measure of individualized suspicion,” [Edmond,] 531 U.S. at 41, and that “only limited circumstances [exist] in which the usual rule does not apply,” id. at 37. The Court stressed that the only suspicionless checkpoints previously upheld were those checkpoint programs that were “designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety.” Id. at 41. By automatically proscribing suspicionless checkpoints with a primary purpose of serving “the general interest in crime control,” the Court was concerned with placing a “check [*18] on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose.” Id. at 42. The District’s argument, however, turns this paradigm on its head. Under the District’s interpretation, individualized suspicion is only required when a law enforcement officer is searching for evidence of criminal wrongdoing. Any suspicionless checkpoint program therefore would be allowed so long as its primary purpose did not involve actively seeking evidence of criminal wrongdoing. The individualized suspicion requirement is the rule under the Fourth Amendment, not the exception. Accordingly, we cannot read “the general interest in crime control” so restrictively as to encompass only those checkpoints in which law enforcement officers were seeking evidence of criminal wrongdoing.

Without doubt, the Edmond Court did not intend the proscription of checkpoints whose primary purpose was “general interest in crime control” to be limited to those seeking narcotics, or other evidence. Instead, the Court used the phrase in what would appear to be its natural and usual sense to include investigation and deterrence.

Indeed, when this court has been confronted with constitutional challenges to police checkpoints, it has consistently treated the purpose of deterring ordinary criminal activity like drug crime as indistinguishable from the purpose of detecting such activity in the context of suspicionless roadblocks. See United States v. Bowman, 496 F.3d 685 (D.C. Cir. 2007); United States v. Davis, 270 F.3d 977 (D.C. Cir. 2001); United States v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989). In each case the defendant sought to suppress evidence obtained at MPD roadblocks. Bowman, 496 F.3d at 686-87; Davis, 270 F.3d at 981; McFayden, 865 F.2d at 1308-09. In each, the MPD instituted roadblocks for the stated purpose of regulating vehicle traffic and safety. See Bowman, 496 F.3d at 691; Davis, 270 F.3d at 981; McFayden, 865 F.2d at 1308. And, in each, this court explained that although traffic regulation was a permissible primary purpose for suspicionless checkpoints, deterrence of drug activity and general drug enforcement were not. See Bowman, 496 F.3d at 692-93; Davis, 270 F.3d at 980; McFayden, 865 F.2d at 1312-13. As a result, where the district court had made appropriate findings that traffic regulation, and not general deterrence, was the primary goal of the [*20] stops, this court affirmed the convictions. See McFayden, 865 F.2d at 1312-13. However, where the record was insufficient to support a determination of the primary purpose, the court remanded for further fact-finding. See Bowman, 496 F.3d at 694-95; Davis, 270 F.3d at 981-82.

In short, appellants’ likelihood of success on the merits is strong.

The only surprise here is that the District Court denied the injunction.

Defendant was initially seized when the vehicle in which he was riding was stopped, and he was patted down. Nothing was found. When it became apparent the vehicle would be impounded, the officer twice told defendant he could go and he was on his own. The defendant hung around and made incriminating statements which were not the product of a seizure. People v. Robinson, 391 Ill. App. 3d 822, 909 N.E.2d 232, 330 Ill. Dec. 519 (2009) rehearing denied 2009 Ill. App. LEXIS 675 (Ill. App. Ct. 2d Dist., July 1, 2009)*:

Here, even if defendant did not have immediate access to a ride to leave the scene, a reasonable person in the same circumstances still would have felt free to decline the officers’ requests. In addition to being told he could leave more than once, defendant chose not to respond to some of the officers’ statements/questions, and he further advised Walker to revoke her consent to search the car, demonstrating that defendant himself felt free to decline the officers’ requests. Considering the Mendenhall factors as well as the other circumstances in the case, we conclude that defendant was not seized when he made the incriminating statements and that the trial court properly denied his motions to suppress.

[As stated by State v. Bacher, 2007 Ohio 727, 170 Ohio App. 3d 457, 460 & n. 2, 867 N.E.2d 864, 866 & n. 2 (1st Dist. 2007), Robinson “had the right to remain silent, but not the ability.” Ron White, Tater Salad Story.]

Defendant juvenile showed a factual dispute to get a suppression hearing over whether he was searched when the students in a class were ordered to empty their pockets to locate a ringing cell phone. Matter of Elvin G., 12 N.Y.3d 834, 910 N.E.2d 419 (2009).*

Defendant had no reasonable expectation of privacy in conversations with his wife in the visitation area of a correctional facility. State v. Rollins, 363 N.C. 232, 675 S.E.2d 334 (2009).

Minor errors in the showing of probable cause were not material to the finding of probable cause what was based on a CI’s direct observations in recent time. This was not a Franks violation. Roach v. State, 2009 Miss. LEXIS 199 (April 23, 2009)*, rev’g Roach v. State, 2007 Miss. App. LEXIS 538 (August 21, 2007), posted here.

Defendant’s probation agreement validly agreed to submit only his computer to suspicionless searches. He retained an expectation of privacy in his house. People v. Thornburg, 2008 Ill. App. LEXIS 814 (August 12, 2008), released for publication September 26, 2008).*

Additional motion to suppress denied without a hearing for defendant not showing a factual dispute that he had an expectation of privacy in the place searched. This was a separate challenge to one heard by the USMJ. United States v. Troya, 2008 U.S. Dist. LEXIS 76995 (S.D. Fla. October 2, 2008) (“‘[A] motion to suppress must in every critical respect, including allegations of standing, be “sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented.”‘”).

Defendant was not in custody at the scene of an accident when he made admissions to the officer that led to his arrest. Turner v. State, 12 So. 3d 1 (Miss. App. 2008).*

The search warrant in this child porn case was constitutionally particular when it sought seizure of defendant’s electronic media for child porn. United States v. Crespo-Rios, 623 F. Supp. 2d 198 (D. P.R. 2009):

The warrant to search Defendant’s home listed numerous items to be seized related to the seduction of children. Because the suspected commission of this crime involved the use of the Internet, the warrant also included computer equipment, digital, and magnetic storage devices, and other digital media. The preface of the search warrant limited the seizure to only evidence of criminality. Specifically, the seizure was limited to evidence of transfer of obscene material to minors and of coercion of a minor to engage in sexual activity. Since the warrant suggested that the digital media to be seized was related to a specific criminal activity, it cannot be classified as a generic classification that would go against the particularity requirement of the Fourth Amendment. See, e.g., United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) (holding that a warrant failed to comply with the Fourth Amendment’s particularity requirement because it failed to give any indication of the alleged crime to which the seized documents pertained). Thus, this Court holds that suppression is not warranted under the particularity requirement of the Fourth Amendment because contrary to Defendant’s argument the warrant was not overbroad in including Defendant’s digital media among the items to be seized as he was suspected of using his computer system and accessories to seduce children and to transfer obscene material to them. Nevertheless, as will be further explained below, all evidence of child pornography obtained from the digital media must be suppressed because the search of the digital media was unreasonable.

Claimant’s pre-indictment motion for return of his computer and disks is denied because he cannot show that the seizure violates any rights by its “callous disregard” of rights. He is in jail and unindicted, but, being in jail, he has alleged no immediate need for the computer and disks. Hovey v. United States, 2009 U.S. Dist. LEXIS 49753 (D. Mont. June 11, 2009):

In evaluating a pre-indictment Rule 41(g) motion a court must consider whether: (1) the Government displayed a callous disregard for the constitutional rights of the movant; (2) the movant has an individual interest in and need for the property he wants returned; (3) the movant would be irreparably injured by denying return of the property; and (4) the movant has an adequate remedy at law for the redress of his grievance. Ramsden v. United States, 2 F.3d 322, 324-325 (9th Cir. 1993). Even if the computer and discs were in the government’s possession, as Hovey alleges, he has not shown that the government displayed a callous disregard for his constitutional rights in the search and seizure of the property. The government was issued a warrant for the search of the Gateway Computer and six discs while it was in the possession of the Missoula Police Department. The warrant indicated that parts of two internal hard drives would be copied along with the six discs.

Plaintiff is currently incarcerated and has not alleged a compelling interest for the immediate need of the property. He has not alleged that he would be irreparably harmed if the United States retains the information copied from the computer and discs or the computer itself. Plaintiff also retains the right to challenge the warrant and the seizure of property in his current state proceedings and any federal proceedings should they arise.

Officer’s entry into an open field and looking in the window of a locked trailer was not a search. The defendant had an expectation of privacy in the trailer, however. Inserting a carpenter’s scope to see inside was a search. “[T]his time, brought, I call it a carpenter’s scope, but it’s kind of got a long tube on it with a monocular, just one eye piece, and it kind of uses–it’s probably about two feet long and I could stick it through the crack where I could see in the … back of the trailer and that’s where I could see it was a tremendous amount of jugs there.” United States v. Smith, 623 F. Supp. 2d 693 (W.D. Va. 2009):

Though Agent Calhoun’s entry onto the Pittsylvania County property was not a Fourth Amendment violation, the court does find that Jody Smith had a reasonable expectation of privacy in the locked trailer located on that land. See United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993) (affirming district court’s finding that a defendant had a reasonable expectation of privacy in a barn located on an “open field”). However, Agent Calhoun’s limited observation of the trailer’s interior on March 1, 2006 was not a “search” under the Fourth Amendment, as he did not physically enter the locked trailer but merely peered inside the trailer with the aid of a flashlight. See Wright, 991 F.2d at 1186 (although defendant had a reasonable expectation of privacy in the barn, an officer could still “stand outside and peer into the barn through an open window or door” without a search warrant); United States v. Dunn, 480 U.S. 294, 304 (1987) (use of a flashlight to observe barn located on an open field “did not transform [officers’] observations into an unreasonable search within the meaning of the Fourth Amendment”).

. . .

As for the second observation of the trailer on March 9, 2006, the court finds that this was a Fourth Amendment search. The “carpenter’s scope” was inserted into the locked trailer. It did more than illuminate; it made visible inside the trailer what could not be observed from the outside the trailer with the naked eye by physically breaching the trailer’s walls. See Wright, 991 F.2d at 1186 (while an officer could peer through a barn’s window or door, the defendant’s “reasonable expectation of privacy meant that the officer could not enter the barn without the benefit of a search warrant.”) (emphasis added). Contrary to the government’s argument, this intrusion goes far beyond mere use of a flashlight or binoculars from a location where an officer has a lawful right of access

N.D. Cal. sets standards for strip searches occurring in the field, away from a jail or police station. Foster v. City of Oakland, 621 F. Supp. 2d 779 (N.D. Cal. 2008):

What is not clear is the extent to which a strip search may be conducted in the field. There is no case law suggesting that such a search may be performed in the absence of an arrest. All of the cases are premised on there being an arrest, not merely a detention or a stop for questioning. An arrest must be based on probable cause and may thus justify some type of search depending on the circumstances. However, detentions and stops that are short of an actual arrest will not support a strip search or, indeed, any kind of search except for a Terry search when the standards of Terry v. Ohio, 392 U.S. 1 (1968), justify a Terry stop. Given the limits on strip searches even in a jail setting, certainly the limitations are greater when the search is in the field pursuant to a valid arrest. It is clear that the “full search” authorized by Robinson is ordinarily conducted for the officers’ safety. A “full search” incident to arrest, however, does not permit a strip search or bodily intrusion. Like the searches in Fuller, the searches in the instant case are unrelated to prison security. Field strip searches by definition occur before a suspect has arrived at a detention facility. And even after the arrestee has arrived at the facility, security concerns may not be great enough to justify invasive searches upon reasonable suspicion if the detainee is not to be admitted to the general jail population or the search is merely for evidence. Fuller, 950 F.2d at 1448. Only after an arrestee has arrived at a detention facility does institutional security become a factor, thereby permitting searches for weapons or contraband based upon reasonable suspicion. Prior to his arrival at the facility, an arrestee poses no threat to prison security, and officers in the field are adequately protected by their ability to perform security searches incident to arrest.

Therefore, the court concludes that officers in the field are generally limited to a search incident to arrest as described in Robinson and that strip and more invasive searches in the field may only be performed under exigent circumstances and with probable cause which may, consistent with the above, require a warrant. In sum, the court concludes that the Fourth Amendment requirements for the three types of strip searches performed in the field–strip search, visual body cavity search and physical body cavity search–are as follows:

1) there must be exigent circumstances;

2) the search may only be performed on persons who have been lawfully arrested on probable cause and may not be performed on anyone for whom there is no probable cause to arrest;

3) the search requires probable cause that is independent of the probable cause found for the arrest;

4) the search may only be performed when there is probable cause to believe that the arrestee is in possession of weapons, drugs or dangerous contraband; and

5) additionally, physical body cavity searches require a warrant authorizing the search and must be administered by an authorized medical professional.

Defendant was a passenger in a car stopped for a traffic violation, but he was asked about his probationary status, and the officer checked the computer on his status. The defendant could only believe he was under investigation, and that was a “stop” of the passenger. State v. Highley, 219 Ore. App. 100 (2008):

On these facts, it may be inferred under the totality of the circumstances that (a) defendant understood that [the officer] was investigating him when he sought defendant’s identification and continued to investigate him through the time that the drugs were discovered, (b) defendant did not believe that he was free to leave, and (c) defendant’s belief was objectively reasonable. The trial court correctly concluded that, under Hall, the request for defendant’s identification, closely followed by the check of defendant’s probationary status, and the request for consent to search defendant, constituted a stop.

Defendant did not have standing in a car and a gun he left in the car when he fled the car, leaving the door open and the gun in plain view. State v. Kimble, 106 Conn. App. 572, 942 A.2d 527 (2008).*

Defendant carries the initial burden of showing that he was seized, and then the burden shifts to the government to show that it was lawful. Defendant’s handcuffing satisfied his burden. United States v. Sanon, 2009 U.S. Dist. LEXIS 39068 (W.D. N.Y. April 28, 2009) (court also takes judicial notice of distance between places off of www.Mapquest.com):

On a motion to suppress, the defendant bears the initial burden of establishing that a government official acting without a warrant in fact subjected him to a search or seizure. United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980) (citations omitted), cert. denied, 450 U.S. 917, 101 S. Ct. 1362, 67 L. Ed. 2d 343 (1981); United States v. Chavis, 48 F.3d 871, 872 (5th Cir.1995); United States v. Bayless, 921 F. Supp. 211, 213 (S.D.N.Y. 1996). Once the defendant has met this burden, the burden then shifts to the government to demonstrate by a preponderance of the evidence, United States v. Bayless, 921 F. Supp. at 213, that the search or seizure did not violate the Fourth Amendment. United States v. Arboleda, 633 F.2d at 989; see also United States v. Bonilla Romero, 836 F.2d 39, 45 (1st Cir. 1987) (“[w]hen it has acted without a warrant, the ultimate burden of persuasion is then upon the government to show that its evidence is not tainted”) (citing Alderman v. United States, 394 U.S. 165, 183, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969)), cert. denied, 488 U.S. 817, 109 S. Ct. 55, 102 L. Ed. 2d 33 (1988).

Court does not find the officers’ testimony that defendant committed a lane change without signaling within 20 seconds of them seeing him as “too good to be true” so as to be necessarily improbable. Officers are credited; stop is valid. United States v. Campbell, 609 F. Supp. 2d 674 (D. R.I. 2009).*

Because the USMJ cannot determine what, if anything, from execution of a search that the government intends to introduce at trial, the government is ordered to disclose what it intends to use so the defense can move to suppress. United States v. Yost, 2009 U.S. Dist. LEXIS 38986 (D. Nev. May 7, 2009).*

Traffic stop became too long and exceeded the time necessary for its initial purpose, and questions kept being asked extending the stop. Consent was suppressed. People v. Al Burei, 391 Ill. App. 3d 1, 908 N.E.2d 538, 330 Ill. Dec. 350 (2009).*

“This case presents the question whether a police encounter with defendant triggered defendant’s Fourth Amendment protection against unreasonable seizure. We conclude that a reasonable person in defendant’s position would not have felt free to refuse an officer’s request to search her purse or otherwise terminate the encounter under the totality of circumstances that here included the officer’s initiation of the encounter, his declaration to defendant and her companion that he was investigating drug crimes and prostitution, his call for a backup officer, his persistence when defendant did not respond to his initial efforts to make contact, his request that defendant produce identification, and his requests to defendant that she both exit the vehicle with her purse and allow him to ascertain its contents. Accordingly, we determine that defendant was seized within the meaning of the Fourth Amendment. Because the taint of the illegal seizure of defendant had no opportunity to dissipate before the search of her purse, we hold that the trial court erred in denying defendant’s motion to suppress.” State v. Icard, 363 N.C. 303, 677 S.E.2d 822 (2009).*

There is no reason to conduct a search incident for illegal parking. Gant “significantly narrowed” the law of SI, so defendant wins. State v. Thomas, 2009 Ohio 3461, 2009 Ohio App. LEXIS 2991 (8th Dist. July 16, 2009).

CI’s tip of drug sales from house plus surveillance that showed many people coming and going was PC. State v. Pustelnik, 2009 Ohio 3458, 2009 Ohio App. LEXIS 2993 (8th Dist. July 16, 2009).*

Officers had RS for stop of defendant’s car based on what appeared to be the defendant shooting up in the car. When that was confirmed, there was PC for arrest, and a SI under Gant was permissible. State v. Gove, 2009 Ohio 3463, 2009 Ohio App. LEXIS 2990 (8th Dist. July 16, 2009).*

Officers had reasonable suspicion to detain defendant for a dog sniff. State v. Thomas, 2009 Ohio 3520, 2009 Ohio App. LEXIS 3015 (2d Dist. July 17, 2009).*

SCOTUS granted cert today in the text message case of City of Ontario v. Quon, 08-1338. SCOTUSBlog here, also referring to USA Mobility Wireless v. Quon:

Among the three new cases the Justices voted to hear, the one with the widest impact appeared to be the case appealed by the city of Ontario, Calif., and its police department — a Digital Age dispute involving the ubiquitous hand-held communication device. The petition tests whether there is a constitutionally-based right of privacy in text messages for employees of a government agency and, if there is such a right, whether it is less extensive for city employees using government-owned electronic pagers.

The case involved the city’s review of text messages that a member of a police SWAT, or emergency response, team had sent to another officer with whom he was having a romantic affair, and also messages he had sent to his wife. The Supreme Court’s final decision in the case is expected to amplify or modify a 1987 decision, Connor v. Ortega, recognizing some workplace privacy for public employees, but counseling that courts should take into account the “operational realities of the workplace.” Although the Court agreed to hear the city’s petition, it denied review of a separate appeal by the provider of the city’s pager service, seeking to test the scope of the federal Stored Communications Act as it applied to disclosure of the context of text messages (USA Mobility Wireless v. Quon, et al., 08-1472).

Update: The cert. petition is here. The Questions Presented:

While individuals do not lose Fourth Amendment rights merely because they work for the government, some expectations of privacy held by government employees may be unreasonable due to the “operational realities of the workplace.” O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (plurality). Even if there exists a reasonable expectation of privacy, a warrantless search by a government employer–for non-investigatory work-related purposes or for investigations of work-related misconduct–is permissible if reasonable under the circumstances. Id. at 725-26 (plurality). The questions presented are:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used “less intrusive methods” of reviewing text-messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

SCOTUSWiki is here, but, as of today, there is nothing there.

News stories are in the NYTimes and LATimes and WaPo. Blogged here at Volokh Conspiracy.

A general motion to suppress that itemized every possible failure of the officer in an OVI case was insufficient to put the state on notice as to what the issue was and was properly denied. State v. Kale, 2009 Ohio 6530, 2009 Ohio App. LEXIS 5454 (7th Dist. December 9, 2009).*

[*P18] Appellant employed the “throw-everything-at-the-wall-and-see-what-sticks” approach to his motion. The prosecution asserted at the hearing, without objection or denial by appellant’s counsel, that appellant’s counsel has used this identical boilerplate motion in at least two other cases. (Oct. 31, Tr. 8). If in fact counsel uses the identical motion in other OVI cases, then there is no way that he is alleging facts specific to the circumstances at hand. A motion to suppress must “be more than a mere fishing expedition.” Gozdan, 7th Dist. No. 03-CA-792, 2004 Ohio 3209 at P9.

[*P19] Appellant did not assert facts with sufficient particularity so as to put the prosecution on notice and to shift the burden to the state. Accordingly, appellant’s first assignment of error is without merit.

The third party consented to recording of defendant’s telephone call when he was in Pennsylvania and the second party was in California and the third party was in Ohio. Ohio law would be applied and the Fourth Amendment did not prohibit it. State v. Dew, 2009 Ohio 6537, 2009 Ohio App. LEXIS 5461 (7th Dist. December 1, 2009).*

Trial court’s finding of consent is supported by the evidence, so it is affirmed. State v. Adams, 2009 Ohio 6491, 2009 Ohio App. LEXIS 5449 (4th Dis. December 8, 2009).*

David J. Warner, A Call to Action: The Fourth Amendment, the Future of Radio Frequency Identification and Society, 40 Loy. (L.A.) L. Rev. 853 (2007). SSRN Abstract:

Nuclear materials. Barcelona club-goers. Mexican diplomats. Japanese schoolchildren. Your next pair of underwear. What do all these things have in common? All of these items either currently contain, or could soon contain, a radio frequency identification (RFID) tag inside them. In this Note, David Warner looks at the future of RFID technology and addresses the growing privacy concerns with the technology. While the Fourth Amendment protects individuals from government intrusion, most RFID privacy concerns will come from the private sector. In addition, once private information is given to a third party (e.g., your supermarket), the government can access that information without a warrant. Since the Fourth Amendment is not the proper tool to dispel privacy concerns, all parts of society–government, corporations, and citizens–have a role to play in properly integrating RFID technology into society

Body cams on cops a violation of privacy?

San Jose Cops Will Wear Body Cameras on Yes, But, However. See AP story here. The product name is AXON.

Arizona-based, publicly traded, Taser International is footing the initial cost for the experiment. The gear rings up at $1,700 per cop, plus a $99 per month fee per officer. That’s a heavy outlay if every officer has the equipment, but lawsuit payouts for wrongful death, incarceration or injury aren’t cheap either.

It says that the ACLU claims that recording an interaction is an invasion of privacy. How? What is the privacy interest in what a cop sees?

You don’t know how many times I’ve wished that the police-citizen interaction was recorded. Either my client or the cop was lying. Just show me which one.

Search of defendant’s car was valid as a search incident because the officer had probable cause to arrest defendant and believe that there was stolen property in the car. Defendant at first consented to the search if he could watch, but he became obnoxious and was put in the police car and withdrew his consent unless he could watch. Even though he was in the police car at the time, it was still valid under Gant. United States v. Williams, 2009 U.S. Dist. LEXIS 66706 (N.D. W.Va. July 31, 2009).*

Motion to reopen suppression hearing would have been denied, so defense counsel was not ineffective. Brown v. United States, 2009 U.S. Dist. LEXIS 66887 (D. Me. June 8, 2009):

I am confident that had counsel notified the court and/or moved to reopen the suppression hearing based on the information gleaned from the private investigator he would have been firmly rebuffed; quibbling with the court about the credibility of a witness at the suppression hearing with less than one month to go until trial would not have been a successful tactic. “Counsel is not required to waste the court’s time with futile or frivolous motions.” United States v. Wright 573 F.2d 681, 684 (1st Cir. 1978); see also United State v. Hart, 933 F.2d 80, 83 (1st Cir. 1991) (“[S]everal First Circuit cases have upheld counsel’s right to ignore frivolous claims pressed by clients.”).

Information from an informant about current activity coupled with older information showed probable cause and made the older information not stale. United States v. Carrillo, 2009 U.S. Dist. LEXIS 66860 (W.D. Mo. July 10, 2009).*

Wielding a machine gun during execution of a search warrant for a nonviolent crime, without any justification, was unreasonable. Baird v. Renbarger, 576 F.3d 340 (7th Cir. 2009):

Law enforcement is a difficult job, as “police officers are often forced to make split-second judgments–in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). This reality is reflected in the fact that courts give considerable leeway to law enforcement officers’ assessments about the appropriate use of force in dangerous situations. See, e.g., Scott v. Harris, 550 U.S. 372, 385-86, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). This latitude ends, however, when police officers employ force that is clearly excessive or unreasonable under the circumstances. That is the case here.

Officer John Renbarger participated in the execution of a search warrant that was based on the crime of altering a vehicle identification number (“VIN”). The crime itself does not involve violence; there was no suggestion that anyone at the search location was armed or dangerous; and no one at the site presented any resistance. Despite this, Renbarger decided to wield a 9-millimeter submachine gun, which he used to detain various people at the search site. The search ended when the officers concluded that the VIN had not actually been altered.

Is “reasonable belief” under Steagald to believe a suspect in an arrest warrant is in a third party’s premises PC or something lower? It should be PC, but, whatever it is, the police had it here. United States v. Jackson, 576 F.3d 465 (7th Cir. 2009):

Four other circuits have disagreed, holding that “reasonable belief” amounts to the same thing as “probable cause.” See United States v. Hardin, 539 F.3d 404, 416 n.6 (6th Cir. 2008); United States v. Barrera, 464 F.3d 496, 501 (5th Cir. 2006); United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir. 2002); United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995). As Judge Clay explained in a concurring opinion, the Supreme Court tends to use phrases like “reasonable grounds for belief” as “grammatical analogue[s]” for probable cause. United States v. Pruitt, 458 F.3d 477, 490 (6th Cir. 2006) (Clay, J., concurring) (citing cases). To wit, in Maryland v. Pringle, 540 U.S. 366 (2003), the Court appears to use “reasonable belief” to define probable cause. Id. at 371 (“[T]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt.”).

Were we to reach the issue, we might be inclined to adopt the view of the narrow majority of our sister circuits that “reasonable belief” is synonymous with probable cause. However, we need not decide whether “reasonable belief” requires probable cause or something less than probable cause because in the present case the police had enough evidence to easily satisfy a probable cause standard. The police received a tip that Jackson was staying at Joseph’s apartment and that he would be there the following morning. When the police arrived at the apartment, they asked Jackson’s girlfriend if Jackson was inside and she nodded yes and started crying. This was more than enough to lead a prudent person to believe that Jackson was inside the apartment when he or she entered. See Jones v. Webb, 45 F.3d 178, 181 (7th Cir. 1995) (defining probable cause as existing when the facts and circumstances within a police officer’s knowledge are sufficient to warrant a prudent person in such a belief). Thus, we need not decide whether “reasonable belief” can constitute less than probable cause; the police clearly had probable cause in this case.

Seizure of defendant’s luggage off a bus was an interference with his freedom of movement and was a seizure of the person. United States v. Alvarez-Manzo, 625 F. Supp. 2d 832 (D. Neb. 2008), Affirmed 570 F.3d 1070, 2009 U.S. App. LEXIS 14854 (8th Cir. Neb., July 6, 2009):

With respect to the first factor the evidence supports the defendant’s contention that the officers’ detention of the luggage significantly impacted the defendant’s freedom of movement. At the time the officers entered the bus with Alvarez-Manzo’s luggage, the bus was preparing to depart. The officers boarded the bus and announced that they were looking for the owner of certain luggage. Alvarez-Manzo was not free to leave the bus, for to do so, he would have had to leave the luggage with the officers and would have risked missing the next leg of his journey. Additionally, the officers’ removal of Alvarez-Manzo’s checked luggage from the bus’s luggage compartment to inside the bus to seek consent to search constitutes a meaningful interference with Alvarez-Manzo’s possessory interests in his luggage. There was no indication as to what the officers intended to do with this luggage, the length of time that they intended to hold on to it, or whether the luggage would be returned to the owner once the owner was identified. There is no evidence that Greyhound personnel approved the removal of the luggage from the undercarriage of the bus, and no Greyhound personnel was present on the bus when the officers were questioning the passengers. Therefore, the officers’ removal and possession of the defendant’s luggage was a seizure.

Because the court has determined that the officers meaningfully interfered with the defendant’s possessory interest in the luggage, the government must show that reasonable suspicion existed in order to detain a person’s luggage and it must derive from more than a hunch. United States v. Tillman, 81 F.3d 773, 775 (8th Cir. 1996). A warrantless seizure and detention of packages or luggage being transported by third parties such as Greyhound is permissible only if the officers have a reasonable and articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 20-23, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Place, 462 U.S. at 708. In analyzing the problem from a totality of the circumstances approach, the officers did not have reasonable suspicion, much less probable cause, to remove the bag and detain it.

The strong the RS, the longer the officer can take to get a dog there for a sniff. State v. French, 2009 Ohio 2342, 2009 Ohio App. LEXIS 1983 (9th Dist. May 20, 2009):

The stronger an officer’s suspicion, the longer a detention can be before it becomes unreasonable. Having reviewed the totality of the circumstances, this Court concludes that Officer Cirullo’s investigation was diligent, that he used the least intrusive means reasonably available to confirm or dispel his suspicions, and that he did not detain the Frenches for an unreasonable amount of time to wait for the K-9 unit to arrive.

Defendant was patted down and the officer felt his ID card. The officer asked for the ID card which had a different name than the name he gave when stopped. Producing the card was acquiescence to a claim of authority. Johnson v. State, 297 Ga. App. 847, 678 S.E.2d 539 (2009).*

Reasonable suspicion that defendant probationer was in a vehicle was reason to stop it when defendant was subject to stops and searches. State v. Hedgecock, 2009 Ida. App. LEXIS 60 (May 14, 2009).*

Emergency aid doctrine permitted an entry based on the officer’s response to a fight in progress. [This is thin, but sufficient.] State v. Baker, 2009 Ohio 2340, 2009 Ohio App. LEXIS 1995 (9th Dist. May 20, 2009)*:

1) Officer Wood’s experience led him to believe that the informant’s report of a fight at the home was accurate based on Baker’s agitation and behavior; 2) the officer was aware that people fleeing the home had prior criminal records; 3) Baker admitted there had earlier been a fight on the property despite his initial denial; 4) the officer heard sounds coming from the home; and 5) the officer only saw males in and around the property although the informant reported, and Baker admitted, that the fight involved women. Accepting these facts as true, the trial court did not err by concluding that Officer Wood had objectively reasonable grounds to believe that there was a woman inside the house who had been injured in the fight and was in need of emergency aid.

[Posted 5/26/09]

Strip search by school officials for a stolen iPod was a probable Fourth Amendment violation, so summary judgment denied. Qualified immunity also does not apply because case law had already developed that a strip search for non-contraband was likely unreasonable. Foster v. Raspberry, 2009 U.S. Dist. LEXIS 65419 (M.D. Ga. July 29, 2009).*

Disagreement by a potential witness over electrical usage that formed a part of the PC that contradicted records was not sufficient to warrant a Franks hearing. United States v. Spears, 2009 U.S. Dist. LEXIS 64945 (N.D. Ind. July 28, 2009).*

Under Muehler v. Mena, officers may constitutionally detain the occupants of a home during a parole or probation compliance search. Sanchez v. Canales, 574 F.3d 1069 (9th Cir. 2009).*

Stop was valid, and brief questions about immigration status were not a violation of the Fourth Amendment. United States v. Ochoa-Mata, 2009 U.S. Dist. LEXIS 65090 (D. Ariz. June 16, 2009):

Agent Ortiz’ questions of Defendant regarding citizenship and whether he had documentation authorizing him to be or remain in the United States was valid. “The police may ask people, who have legitimately been stopped, for identification without conducting a Fourth Amendment search and seizure.” United States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007), cert. denied, ___ U.S. ___, 128 S. Ct. 634, 169 L. Ed. 2d 410 (2007); see INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984)(“[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.”). The questioning of Defendant, Co-Defendant and the two female passengers took no more than three minutes.

Where Customs officers clearly had reasonable suspicion to detain plaintiff for alimentary canal smuggling after her two day trip and her return flight had been diverted to FLL. She was eight months pregnant (precluding x-rays, a nifty trick of the smuggler recruiters) and when questioned, she exhibited extreme nervousness, sweating, and had to hold onto the x-ray machine to steady herself, and she had no luggage for her trip. Before she was stopped, she was obviously avoiding all eye contact with Customs officers, and that piqued their interest in her. Her information in the Customs computer showed she was targeted for questioning because of her trip:

REFER TO CUSTOMS FOR ENFORCEMENT EXAM.
ACQUIRED TRAVEL DOCUMENTS SHORTLY BEFORE
DEPARTURE. MATCHES HI RISK NARCO-TARGETING
INDICATORS. (IF ARRIVING FROM A SOURCE COUNTRY).

The Customs officer first searched her carry-on bag.

Friedland proceeded to search through Denson’s belongings–a manila folder, a purse, and a small carry-on bag. Of note, Denson had in her possession two new $100 bills and six $1 bills, a marriage register of the marriage between herself and Scott, an affidavit of citizenship in lieu of a passport, and a tablet of paper containing the following hand-written information about her husband that appeared to be a cover story written for Denson by a third party:

Richard Scott — Poultry Farmer Since 1994

Lives (a) Belfast Near Morant Bay in the Parish of Saint Thomas

His birthday is: Feb. 17th (Born 1972)

How you met.

Dec. 1995 A friend invited you to Jamaica while there went to the beach Dunns River met him there

Dec. 1996 He visited you at your friends Saint Anne home you invited him at his Saint Thomas home

*You had no prior knowledge of him

You returned home to Florida — Telephone Exchange

*Always used calling cards — Price Reasons

March 1996 You went down to visit him in Jamaica.

Oct. 1996 You went back to marry him

*His phone number written down at home 809 something

You are not good with remembering numbers.

*NOT HIS PHONE ANYWAY Neighbors’ Phone.

ANY OTHER Questions Just answer something in that case try to remember what you were asked and what you answered.

*DOES HE HAVE RELATIVES OR FRIENDS IN THE U.S. THAT YOU KNOW OF –NO–

When asked who wrote the document, Denson said that she did not know.

Plaintiff later claimed she had seven different handwriting styles. Her detention and removal to a hospital for a forced enema was reasonable under all the circumstances, despite the fact nothing was recovered. Denson v. United States, 574 F.3d 1318 (11th Cir. 2009):

If, after conducting initial questioning and a preliminary search of the individual and the individual’s effects, the officer has reasonable suspicion that the traveler is smuggling drugs in her alimentary canal, the Fourth Amendment permits the Customs officer to detain the individual and conduct a more intrusive search. Montoya de Hernandez, 473 U.S. at 541-42, 105 S. Ct. at 3310-11 (allowing detention of traveler based on reasonable suspicion of smuggling contraband in her alimentary canal); United States v. Pino, 729 F.2d 1357, 1359 (11th Cir. 1984) (finding use of x-ray to search traveler constitutional where reasonable suspicion exists that person is concealing drugs internally); see United States v. Himmelwright, 551 F.2d 991, 994 (5th Cir.) cert. denied, 434 U.S. 902, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977) (permitting strip search of border entrant based upon reasonable suspicion). Similarly, once an officer gains reasonable suspicion that a traveler is smuggling drugs in her alimentary canal, it is constitutionally reasonable for the officer to detain the traveler for a period of time necessary to either verify or dispel his suspicion. Montoya de Hernandez, 473 U.S. at 544, 105 S. Ct. at 3312; Gonzalez-Rincon, 36 F.3d at 864.

Nothing was found after she spent nearly a full day in custody. She sued and lost because there was reasonable suspicion for her detention at Customs. She sued everybody involved.

This case was clearly distinguishable from unjustified detentions at the border.

n64. As both Friedland and Lavenka acknowledged, as a pregnant, black female traveling alone from a brief stay in Jamaica, Denson fit a stereotypical profile. And if Friedland and Lavenka based their decision to search and have Denson detained to monitor her bowel movements solely on those facts, this would be a different case. See Brent v. Odesta, 247 F.3d 1294, 1302 (11th Cir. 2001) (finding officers lacked reasonable suspicion to conduct a strip search and an x-ray examination based on the traveler having arrived from a source country and shaking her head at inspectors who had detained another passenger); United States v. Vega-Barvo, 729 F.2d 1341, 1349 (11th Cir. 1984) (“It is not the profile, however, but the factors which make up the profile which are crucial to whether or not there is a reasonable suspicion.”) However, Friedland and Lavenka’s decisions were based not only on a basic profile; but also on Denson’s nervous behavior, the dubious nature of Denson’s answers to basic questions, and other factors–most notably, the third-party authored cover story.