Search of a laptop at Customs at LAX for child pornography on return from Thailand was valid. (Thailand is a source country for child porn.) No reasonable suspicion is required for a laptop search at the border. The later search of the computer was a lawful extension of the border search. People v. Endacott, 164 Cal. App. 4th 1346, 79 Cal. Rptr. 3d 907 (2d Dist. 2008):

Indeed, the human race has not yet, at least, become so robotic that opening a computer is similar to a strip search or body cavity search. Of course viewing confidential computer files implicates dignity and privacy interests. But no more so than opening a locked brief case, which may contain writings describing the owner’s intimate thoughts or photographs depicting child pornography. A computer is entitled to no more protection than any other container. The suspicionless border search of Endacott’s computer was valid.

Comment: This is apparently the first state court to follow the Ninth Circuit which has held suspicionless laptop border searches valid since 2005. This was a no-brainer for Customs to let this case go to the state courts since California courts are bound to follow the Fourth Amendment and has no broader state constitutional law. Actually, there is no risk at all to Customs. If any state court should determine that their state constitution grants broader rights, the federal government would just take the prosecution over and indict the defendant federally. So, the defendant gains nothing except the possibility of a federal sentence. Therefore, defense counsel must do a cost-benefit analysis of probable sentence to decide what approach to take.

There is no per se rule for or against search incident in a DUI arrest. The officer looked in a brown bag and found a gun. The good faith exception to the exclusionary rule applied to this warrantless search. Whether Gant overruled Belton does not have to be decided. United States v. Grote, 629 F. Supp. 2d 1201 (E.D. Wash. 2009):

Application of the exclusionary rule here clearly will not deter future police misconduct. The simple reason is that the police conduct in question–warrantless searches incident to lawful arrest- will now be evaluated by the new legal standard articulated in Gant, not by the legal standard that existed when Officer Moses conducted his search. As there is no deterrent effect to be gained, application of the exclusionary rule cannot be justified considering the substantial social costs imposed by the rule. It is important to point out that Officer Moses made no mistake of law or fact. Instead, he acted reasonably pursuant to the law as it existed at the time he conducted the search of the vehicle. Application of the good faith exception here is not intended to excuse a mistake on the part of Officer Moses, but to recognize that Gant represents a change in well-established law on which law enforcement officers once reasonably relied.

The court finds the defendant consented to a search of his person and his car. United States v. Stinson, 2009 U.S. Dist. LEXIS 83819 (W.D. N.C. August 26, 2009).*

Apparent hand-to-hand drug sales through the mail slot of a house was probable cause for a search warrant. United States v. Rudolph, No. 93-2392, 1994 WL 592932 (6th Cir. Oct. 27, 1994), is nearly identical. United States v. McCreary, 2009 U.S. Dist. LEXIS 84644 (E.D. Mich. September 16, 2009).*

The acts of a co-inhabitant of a house will nullify the defendant’s reasonable expectation of privacy. United States v. Sagataw, 2009 U.S. Dist. LEXIS 84383 (D. Minn. August 18, 2009).*

The Washington Post reported late last week that the DoJ Cybersecurity Division has written a memo a month ago, released Friday, that employees using government computers for personal use have no reasonable expectation of privacy. The memo is Legality of Intrusion-detection System to Protect Unclassified Computer Networks in the Executive Branch. DoJ’s summary:

Operation of the EINSTEIN 2.0 intrusion-detection system complies with the Fourth Amendment to the Constitution, title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, the Stored Communications Act, and the pen register and trap and trace provisions of chapter 206 of title 18, United States Code, provided that certain log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by executive departments and agencies using the system. Operation of the EINSTEIN 2.0 system also does not run afoul of state wiretapping or communications privacy laws.

Stop was based on weaving, and questions asked of the defendant that had nothing to do with the stop did not unlawfully extend it. United States v. Hernandez, 2009 U.S. Dist. LEXIS 86309 (N.D. Tex. September 21, 2009).*

The stop of the car defendant was a passenger in was justified, and he fled from the car and tossed a gun. United States v. Rodriguez-Aparicio, 2009 U.S. Dist. LEXIS 86710 (D. Nev. August 24, 2009).*

Inspection of a tractor trailer was justified by RS and a dog sniff because of defendant’s contradictory answers about where he had been when he came through South Texas making many unusual stops and being unable to explain the stops. United States v. Rendon, 2009 U.S. Dist. LEXIS 86410 (M.D. Ala. July 9, 2009).*

The search warrant for defendants’ premises for immigration fraud was based on probable cause and the search warrant for records was not open ended or general. United States v. Watson, 2009 U.S. Dist. LEXIS 86628 (S.D. Fla. May 29, 2009).*

Officers had RS that defendant was involved in a drug offense and had prior weapons offenses. That justified his patdown. The search of defendant’s car trunk would be unreasonable under Gant, but it was justified by the automobile exception because of probable cause. United States v. Arnold, 2009 U.S. Dist. LEXIS 87215 (E.D. Mich. September 23, 2009).*

Defendant’s stop was justified by his speeding, and the court finds that he expressly consented to a search of the vehicle. United States v. Rodriguez-Tirado, 2009 U.S. Dist. LEXIS 87050 (W.D. Tenn. September 22, 2009).*

While the defendant had been arrested after she admitted lying to officers, the evidence shows she voluntarily consented to a search. United States v. Berkolayko, 2009 U.S. Dist. LEXIS 86965 (S.D. N.Y. September 22, 2009).*

Defendant’s 45 minute detention on I-8 between border crossings while waiting for a drug dog was not unreasonable under all the circumstances. This case differs from the defendant’s primary authority involving a two hour delay of a suitcase in an airport. United States v. Macias-Encinas, 2009 U.S. Dist. LEXIS 86852 (S.D. Cal. September 22, 2009).*

Evidence showed that defendant consented to a search of his house, as proved by his twice offering to the police to look at a rifle in a closet and opening a nightstand drawer to show his “stash.” United States v. Lacy, 2009 U.S. Dist. LEXIS 86970 (E.D. Wis. August 13, 2009).*

Defendant parolee was stopped in a high crime area trying to enter a motel room through a window at night. The officers searched inside his underwear finding drugs. The underwear search of a parolee was not a strip search, and it was reasonable. People v. Smith, 172 Cal. App. 4th 1354, 92 Cal. Rptr. 3d 106 (1st Dist. 2009).

Defendant’s questioning about a gun, albeit understandable, was factually different from Quarles because he had been in custody, so his statement is suppressed. United States v. Zamora, 2009 U.S. Dist. LEXIS 31379 (W.D. La. April 9, 2009).

Approaching a person in an auto theft investigation and asking his name was not unreasonable. This was not a planned investigation targeting her. After that, it was legitimate to run warrants on her, and a warrant found justified her detention. State v. Dawson, 205 P.3d 628 (Haw. App. April 8, 2009).

Michigan finds that the Tobacco Products Tax Act made tobacco control a pervasively regulated business subjecting sellers to records searches of acquisitions and sales. People v. Beydoun, 283 Mich. App. 314, 770 N.W.2d 54 (2009).

Citizen informant was not subjected to the same scrutiny as a confidential informant, even if the informant is seeking revenge. But, there were other informants corroborated, too. Defects in the return of the warrant are ministerial and do not justify suppression. State v. Dietrich, 2009 NMCA 31, 145 N.M. 733, 204 P.3d 748 (2009), certiorari denied, No. 31,524, February 17, 2009, released for publication March 31, 2009:

[*17] Further, even if it appears that the informant is seeking revenge, it does not necessarily indicate a motive to falsify allegations. See People v. Isenberg, 52 Ill. App. 3d 426, 367 N.E.2d 364, 366, 9 Ill. Dec. 930 (Ill. App. Ct. 1977) (rejecting the defendant’s contention that the informant could not be reliable because he was seeking revenge on the defendant based on the informant’s brother’s hospitalization and holding that the informant could be considered an ordinary citizen); State v. Olson, 2003 MT 61, P 27, 314 Mont. 402, 66 P.3d 297 (noting that even if a citizen-informant has mixed motives, his information can still be reliable). While the fact that J.O. made allegations against Defendant while being investigated for a burglary perpetrated on Defendant’s property casts doubt on J.O.’s truthfulness, we cannot ignore that he remained a named informant and that Detective Harris further investigated and received corroborating information.

Smell of burnt marijuana during a traffic stop justified a search incident of the interior of defendant’s car. Defendant’s strip search that was not a body cavity search was justified by the facts. A bag of cocaine came out of his underwear. Jenkins v. State, 970 A.2d 154 (Del. 2009).*

Failure to properly return a warrant under state law does not affect the warrant in federal court if the process is otherwise constitutional. United States v. Ambrose, 2009 U.S. Dist. LEXIS 28253 (E.D. Tenn. March 30, 2009).*

While officers were investigating a sex crime, they saw wild animal parts, and they called a game officer to join in the search, and he questioned the defendant, too. That entry was outside the scope of the warrant, and the evidentiary value was not “immediately apparent” to the officers. He could object to the game officer as an extention of the search. State v. Moran, 2008 NMCA 160, 145 N.M. 297, 197 P.3d 1079 (2008):

[*13] Although Officer Jackson ultimately may have acquired information establishing probable cause to believe that some of the game animal parts were possessed unlawfully, the investigation during which Officer Jackson questioned Defendant and during which Defendant was unable to produce documentation of lawful possession occurred while Officer Jackson was present within Defendant’s home without a warrant and over Defendant’s objection. A search warrant does not completely nullify a homeowner’s Fourth Amendment rights, allowing law enforcement officers executing a search warrant to declare a private residence a law enforcement open house. During the execution of a search warrant, a homeowner retains residual constitutional privacy rights, including the right to object to the presence of persons whose presence is not reasonably related to the purposes for which the warrant was issued. See United States v. Showalter, 858 F.2d 149, 152 (3rd Cir. 1988) (affirming order suppressing “plain smell” olfactory observations of state troopers and DEA agents who accompanied U.S. Marshals conducting inventory search incident to civil forfeiture proceeding; emphasizing evidence that presence of state troopers and DEA agents was not necessary to the taking of the inventory or for the security of the marshals conducting the inventory and that state troopers and DEA agents did not participate in inventory or deploy themselves in a manner consistent with a peacekeeping function); cf Wilson v. Layne, 526 U.S. 603, 609-11, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999) (holding that occupants’ Fourth Amendment rights were violated when law enforcement officers brought media into home to observe and record attempted execution of warrant; noting that media were not present to assist the police in executing the warrant; emphasizing principle that police actions in execution of a warrant must be “related to the objectives of the authorized intrusion”). There is no dispute that Officer Jackson entered Defendant’s home to investigate possible violations of game and fish laws, not to assist Deputy Brazil and the other officers in searching for the evidence of CSP described in the warrant. Officer Jackson was not authorized by the search warrant issued in the CSP case to conduct an investigation inside Defendant’s home into possible violations of game and fish laws. Commonwealth v. Cruz, 53 Mass. App. Ct. 24, 756 N.E.2d 1175, 1182-83 (Mass. App. Ct. 2001) (rejecting Commonwealth’s “plain view” argument; suppressing evidence of cellular telephone fraud seized by second team of detectives composed of members of specially trained cellular phone fraud unit who entered the defendant’s apartment while narcotics investigators were executing a search warrant limited to evidence of drug crimes).

Defendant consented to the first entry to the USM to look for another, and that man was arrested in the backyard, and the officer took him handcuffed back into the house. The second entry was not within the original consent. United States v. McMullin, 576 F.3d 810 (8th Cir. 2009):

The precise issue here is not withdrawal of consent, but whether, as McMullin argues, a new consent was required for the second entry. By the time Marshal Newlin sought re-entry into McMullin’s house, it is undisputed that the marshals had already completed their task of arresting Crowder in the backyard. There was no necessity or legal basis for the officer to re-enter the house. Under the circumstances of this case, we determine that Marshal Newlin’s re-entry exceeded the scope of McMullin’s consent and therefore violated the Fourth Amendment prohibition against unreasonable entries into a person’s house. Cf. United States v. Jones, 269 F.3d 919, 929 (8th Cir. 2001) (determining that a trooper’s detention of defendant “past the point necessary to complete his traffic stop investigation exceeded the scope of a lawfully initiated traffic stop.”).

We have examined the second entry cases in this circuit, none of which support a second, warrantless entry under the facts presented by the record. For example, in United States v. Carter, 854 F.2d 1102, 1104-06 (8th Cir. 1988), the officers first entered the motel room without a search warrant but with consent, and a second time, pursuant to a warrant issued based on plain view observation of cocaine on a table. Carter suggests that the proper procedure here should have been to secure a search warrant prior to the second entry. Carter also discusses exigent circumstances relating to an officer’s entry to a motel room to obtain clothes, mentioning similar circumstances in United States v. Gilbert, 774 F.2d 962, 963-64 (9th Cir. 1985), but these entries were made pursuant to consent as well. See 854 F.2d at 1106. Importantly, however, Carter notes the expectation of privacy associated with a person’s house. Id. at 1105. Furthermore, in United States v. Weston, 443 F.3d 661, 665 (8th Cir. 2006), a first search occurred pursuant to consent, while a subsequent search followed the issuance of a search warrant. Finally, in United States v. Lakoskey, 462 F.3d 965, 974 (8th Cir. 2006), this Court concluded that an officer’s second warrantless entry without consent or exigent circumstances violated the Fourth Amendment.

The government further argues that exigent circumstances, in the form of Marshal Newlin’s safety, made the re-entry reasonable under Fourth Amendment law. Although officer safety indeed constitutes exigent circumstances permitting a warrantless search, see United States v. Hill, 430 F.3d 939, 941 (8th Cir. 2005), this exception is inapplicable in light of the facts presented by the record. There was no testimony that the marshals feared Crowder and McMullin, and in any event, both had been detained and handcuffed in the backyard. 3 As for the other occupants of the house, Marshal Newlin’s testimony is insufficient to justify his re-entry into the house on grounds of officer safety. For example, Marshal Newlin did not testify that the occupants of the house acted belligerently or in a hostile manner. He did not testify that Crowder or McMullin signaled to the occupants in the house for help. Marshal Newlin did testify, however, that he observed no firearms or ammunition during his first visit in the house. On this record, it is not apparent that officer safety required re-entering the house, as opposed to keeping Crowder and McMullin in the backyard or taking them to the marshals’ vehicle.

The defendant took no precautions by no trespassing signs or fences to protect the curtilage from a police entry for a knock-and-talk. United States v. Bowyer, 2009 U.S. Dist. LEXIS 72127 (S.D. W.Va. August 14, 2009).*

Concerned identified citizen’s report that defendant probationer had a firearm was reasonable suspicion for a probation search. United States v. Balog, 2009 U.S. Dist. LEXIS 72312 (D. Utah August 13, 2009).*

[posted 8/20]

Defendant’s detention at the scene of a search where he just showed up at that same time as fourteen officers to execute a search warrant was reasonable. Drug sales had occurred there that day. United States v. Banks, 628 F. Supp. 2d 811 (N.D. Ill. 2009):

The courts of appeals have offered several justifications for the rule that individuals who for whatever reason find themselves at the scene of an ongoing search are subject to at least a temporary detention by law enforcement officers. In Jennings, the Seventh Circuit found that in view of the entry of the defendant into the “security perimeter surrounding the apartment where the narcotics search was underway” and the “elevated risk of violence during a search for narcotics,” the officers “were reasonably concerned for their own and for [the defendant’s] safety, as well as for any activity that might compromise the search.” 544 F.3d at 818. Echoing the Seventh Circuit’s views, the Tenth Circuit has held that officers may detain individuals “whose presence at the scene raised a concern about interference with the search.” Sanchez, 555 F.3d at 918. The Sixth Circuit also has pointed to concerns about the defendant’s own safety as a factor justifying detention of an individual who approached a house in which armed officers were in the process of executing a search warrant. Bohannon, 225 F.3d at 617. And the Third Circuit, too, has found it “entirely reasonable” for officers to detain persons “standing in the middle of [a drug] raid,” at least “until the situation [is] under control.” Baker, 50 F.3d at 1191. As the Seventh Circuit summarized, “the officers’ interest in maintaining control inside their security perimeter until the SWAT team secured the targeted apartment for the search far outweighed [the defendant’s] interest in being left alone for the few moments that he was detained.” Jennings, 544 F.3d at 819.

The timing of an individual’s appearance on the scene of an ongoing police operation also bears on the reasonableness of the officers’ actions. In each of the most analogous decisions discussed by the parties in their briefs and at the hearing, the courts have agreed that persons who are present as the execution of the warrant commences are subject to at least temporary detention. See Jennings, 544 F.3d at 818-19; Bohannon, 225 F.3d at 617; Baker, 50 F.3d at 1190 (upholding detention of defendant who arrived on the scene “just as the police were initiating a drug raid”). Even Judge Batchelder, who dissented in Bohannon, agreed that authorities lawfully may “detain all persons who are on the premises to be searched when the police execute a search warrant.” 225 F.3d at 618 (Batchelder, J., dissenting). However, she felt that the detention was unlawful on the facts of that case because the defendant “arrived after the search had been substantially completed” and “the police already had complete control of the situation, many of the officers had already left the scene, and all that remained was the final paperwork.” Id.

On the basis of the decisions cited above, the Court has no difficulty in concluding that the temporary detention of Defendant on the porch of a residence where fourteen armed police officers were about to execute a valid narcotics search warrant comported with the Fourth Amendment. The Defendant arrived contemporaneously with the officers at a location where drug deals had taken place that very day.

Officer had reasonable suspicion of a vehicle which the driver had no apparent authority to be driving while it was being checked out. A drug dog came and did not alert. The lack of a dog alert was not conclusive on the stop having to end. State v. Pacheco, 2008 NMCA 131, 145 N.M. 40, 193 P.3d 587 (2008):

[*25] In summary, viewing the evidence in the light most favorable to the State, and considering the totality of circumstances, the law enforcement officers conducted a diligent, minimally intrusive investigation, based on a reasonable, articulable suspicion of criminal activity. On balance, “the government’s interest in deterring methamphetamine use, coupled with its general interest in effective crime prevention and detection, substantially outweigh[ed] the minimal intrusion on Defendant’s liberty” in this case. Robbs, 2006 NMCA 61, P 22. Because the investigation was conducted in an appropriately circumscribed and diligent fashion, the ensuing consensual search of the vehicle was not tainted by prior illegality. See Duran, 2005 NMSC 34, P 42. We therefore conclude that Defendant’s motion to suppress was properly denied.

Government’s request to reopen suppression hearing after it lost is denied. The evidence presented at the hearing showed that defendant’s detention became unreasonable. After the hearing, the government looked for more evidence to show that it was not unreasonable and found it, but the court cannot permit every party losing a suppression hearing to reopen. United States v. Banks, 2009 U.S. Dist. LEXIS 56076 (E.D. Tex. March 6, 2009):

Although the Defendant normally bears the burden of proving by a preponderance of the evidence that a challenged search was unconstitutional, the Government bears the burden of proving that the search was valid where, as here, a police officer acts without a warrant. United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005). The court has already found that the Government did not sustain this burden. Even after the court questioned the officers about the sequence of events shown on the video, there was no hint in the evidence that the request for consent to search and the call for the drug dog occurred before the computer checks came back clean. Now the Government asserts that it has a dispatch record that shows different or additional facts. However, even if it had the time to do so, federal courts cannot allow parties to re-open cases to add evidence after every adverse ruling.

Guilty plea of a police officer in the bogus search case involving the shooting death of Kathryn Johnson did not entitle this defendant to a new trial where the allegations occurred years earlier and were disconnected. United States v. Thompson, 335 Fed. Appx. 876 (11th Cir. 2009) (unpublished):

Thompson contends that he is entitled to a new trial because new evidence shows that Atlanta Police narcotics officers engaged in a pattern of illegal behavior during their investigations, including lying about confidential informants and planting evidence. He argues that the recently discovered police misconduct supports his defense, which was that he never possessed any of the drugs, and that it likely would produce a different result by calling into question his guilt as well as the veracity of the informant and the officers who testified against him. Thompson also argues that the district court erred by denying him discovery and an evidentiary hearing.

Defendant’s stop for a seat belt violation was valid under Atwater. A state court decision that was similar to defendant’s case was not binding in federal court. United States v. Everson, 2009 U.S. Dist. LEXIS 54935 (N.D. Iowa June 19, 2009).*

The fact that defendant was alleged to have stolen property did not diminish his Fourth Amendment interest in the property in the seizure. Langbord v. United States Dep’t of the Treasury, 645 F. Supp. 2d 381 (E.D. Pa. 2009):

The Government further argues that it was justified in taking the coins because “the law recognizes a distinction in Fourth Amendment analysis where the government recovers its own property.” (Defs.’ Opp’n Pls.’ Mot. Summ. J. Due Process & Illegal Seizure at 18.) Courts have consistently rejected this type of argument. For example, the Eighth Circuit Court of Appeals has highlighted that “[a] seizure of property occurs when there is some meaningful interference with a person’s possessory interests in that property,” and that person’s “right against unreasonable seizures is not vitiated” merely because the Government believes that it is the rightful owner of the property in question. Lesher v. Reed, 12 F.3d 148, 150 (8th Cir. 1994). Even where “a claim to continued possession is in dispute, that possessory interest is still constitutionally protected.” Dixon v. Lowery, 302 F.3d 857, 864 (8th Cir. 2002). Furthermore, “[c]onstitutional protection of possessory interests is not diminished when the government, as opposed to a private individual, has paramount right to possession.” Rossi v. Town of Pelham, 35 F. Supp. 2d 58, 69 (D.N.H. 1997) (citing Warden v. Hayden, 387 U.S. 294, 300-310 (1967)). Accordingly, we find that the Government’s belief that the coins had been stolen did not diminish Plaintiffs’ Fourth Amendment rights and did not change the nature of the Government’s seizure.

Defendant’s consent was voluntary even though he was on morphine at the hospital. The hospital records showed he was alert and talking with medical staff. “The fact that an individual is under the influence of drugs, alcohol or extreme physical pain does not necessarily render consent involuntary. See United States v. Medico, 557 F.2d 309, 312-13 (2d Cir. 1977) (consent to search defendant’s apartment was freely and voluntarily given notwithstanding that on the day she consented to the search, she had used marijuana, cocaine, heroin and methadon); ….” United States v. Irving, 2009 U.S. Dist. LEXIS 66000 (N.D. N.Y. July 27, 2009).*

Defendant’s attempted arrest was without probable cause, but he dropped his gun while fleeing from the police, and the court must affirm the denial of the motion to suppress. United States v. Britton, 335 Fed. Appx. 571 (6th Cir. 2009) (unpublished):

. . . Shumpert Britton was legally disqualified from possessing the handgun he was carrying with him due to a prior felony conviction. That fact would not have come to light, however, if two Memphis, Tennessee police officers had not engaged in some illegality of their own: attempting to arrest Britton and two of his friends without any semblance of probable cause. But Britton’s pistol was not discovered during a search incident to his arrest. Instead, Britton dropped the gun while climbing a fence in an effort to flee the police. We cannot conclude that the discovery of any of the evidence used to convict Britton of being a felon in possession of a firearm was the product of an illegal arrest or search, despite the regrettable conduct of the police officers. Therefore, we must affirm the district court’s order denying Britton’s motion to suppress evidence, which he challenges on appeal.

. . .

Britton dropped the gun while he was being chased. He was not then under arrest. The Supreme Court held in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), that an arrest does not occur until a police officer lays hands on a subject or the subject voluntarily submits to a show of authority. Id. at 626 (“The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not. … An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.”). A person fleeing from a police officer’s show of force is not then under arrest. United States v. Williams, 949 F.2d 220, 222 (6th Cir. 1991). The gun was revealed in this case before the arrest occurred.

Nexus to defendant’s home was shown by defendant’s possession of physical child porn images and downloaded them. If he downloaded them, it logically would be at home. United States v. Potts, 586 F.3d 823 (10th Cir. 2009).*

Applying these factors to the circumstances of this case, we hold that the magistrate judge had a substantial basis for determining probable cause to search the defendant’s home had been shown. The affidavit had shown that Mr. Potts owned a computer and that he was employed as a teacher at two elementary schools. There was probable cause to believe that Mr. Potts had some child pornography that he kept in a large binder. There was probable cause to believe that Mr. Potts had obtained images of child pornography by downloading them from the internet, a process that he had said could take hours to complete. We have previously said (as noted supra) that those who acquire these materials are likely to hoard them for significant periods of time. All of these factors weigh against the possibility that Mr. Potts might have kept the materials at his workplaces.

These facts provided sufficient nexus for the magistrate judge to issue the search warrant for Mr. Potts’s residence. As the district court correctly noted, direct evidence that contraband is in the place to be searched is not required. See United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997). The affidavit, and the inferences that could reasonably be drawn from it, were sufficient to establish the reasonable probability that the Fourth Amendment requires.

By stipulating to facts at a bench trial, the defendant likely unknowingly waived his right to appeal the suppression ruling. The case is remanded to resolve that issue. Nobody told the District Court the defendant wanted to appeal so the issue could be clarified. United States v. Livingston, 586 F.3d 819 (10th Cir. 2009).*

Traffic stop was with a factual basis, but the officer apparently and legally abandoned it to investigate drugs. Using a drug dog within a couple of minutes of the stop was not unreasonable. United States v. Ramsey, 2009 U.S. Dist. LEXIS 116195 (E.D. Tenn. November 9, 2009)*:

Defendant does not dispute that only a few minutes elapsed between the stop and the alert by Red. Defendant also appears to concede the stop was not prolonged in order to deploy Red by admitting his argument does not turn on the length of the stop [Doc. 18 at 3]. That Red was deployed within a few minutes of the stop is not determinative of whether the detention was constitutional. Bell, 555 F.3d at 539. The mere two-minute lapse of time between the stop and the deployment of Red, however, certainly bolsters the undisputed video evidence that Officer Curvin had not completed all traffic enforcement acts at the time of the deployment and alert. Thus, I FIND the traffic enforcement purpose of the stop was not concluded during the time Red was deployed and almost immediately alerted, in spite of the officers’ investigatory agenda. No evidence indicates Defendant was detained longer than reasonably necessary to complete the purpose of the stop or that the officers extended the duration of the stop to enable the dog sniff to occur. Therefore, I also FIND the officers acted with diligence and that Defendant was not detained any longer than necessary for the purpose for which he was initially pulled over — traffic enforcement. See, e.g., United States v. Garcia, 496 F.3d 495, 504 (6th Cir. 2007) (“the duration of the stop was reasonable; the canine sniff was performed within a half hour of the stop”); Bell, 555 F.3d at 541 (detention proper where it is no longer than reasonably necessary for officers to complete the purpose of the stop).

Violation of state law in not getting defendant before a state magistrate was not relevant to this case where defendant was promptly charged in federal court, too. The Fourth Amendment governs, not the violation of state law. United States v. Mott, 2009 U.S. Dist. LEXIS 116117 (E.D. Tenn. December 14, 2009).*

Defendant did not have an expectation of privacy in shipping containers stored on property belonging to another. The property was deeded to another, and the defendant sought to show the true financial relationship between them as to who had a mortgage and who owed what, but it did not overcome the fact that another owned the property and had control over it. The containers were left unattended, and, by all accounts, were abandoned. United States v. Swift, 2009 U.S. Dist. LEXIS 116161 (D. Haw. December 14, 2009).*

The seizure in this case depends on a search incident in violation of Gant, so claimant’s judgment on the pleadings is granted. United States v. $14,448.00 United States Currency, 2009 U.S. Dist. LEXIS 116184 (E.D. Mo. December 14, 2009).*

The Tenth Circuit’s McCane good faith exception to Gant is applied on a Sixth Circuit remand under Gant. United States v. Lopez, 2009 U.S. Dist. LEXIS 78320 (E.D. Ky. September 1, 2009). [Note: The Ninth Circuit disagrees with the Tenth.]

Government’s appeal from a USMJ’s R&R that recommended granting a motion to suppress included its disavowal of the accuracy of officer affidavits that it affirmed before the USMJ. The government can’t have it both ways. The affidavits were admissible as admissions of a party opponent. United States v. Lopez-Ortiz, 648 F. Supp. 2d 241 (D. P.R. 2009):

The government, in its opposition to the R&R, offers no persuasive argument refuting the magistrate judge’s legal analysis on this matter. The government argues that the affidavit contains inaccurate information as a result of poor communication between agents present at the time of the search and seizure and agents who ultimately created the affidavit. This line of argument – the factors leading to the affidavit’s inaccuracies–is irrelevant. What matters in the analysis under Kattar is whether the government submitted the contested statements for their truth in one forum while denying their truth in another. Here, the government has done just that and, therefore, this Court agrees that the affidavit was properly admitted as a party admission.

The drug dog’s training need not be shown in the affidavit for search warrant to establish probable cause. United States v. Campbell, 2009 U.S. Dist. LEXIS 79363 (E.D. Ky. September 1, 2009)*:

The Sixth Circuit has held that “to establish probable cause, the affidavit need not describe the particulars of the dog’s training. Instead, the affidavit’s accounting of the dog sniff indicating the presence of controlled substances and its reference to the dog’s training in narcotics investigations was sufficient to establish the dog’s training and reliability.” Berry, 90 F.3d at 153. See also United States v. Daniel, 982 F.2d 146, 151, n.7 (5th Cir.1993)(rejecting defendant’s argument that an affidavit must show how reliable a drug-detecting dog has been in the past in order to show probable cause); United States v. Venema, 563 F.2d 1003, 1007 (10th Cir. 1977)(stating that an affidavit in support of a search warrant need not describe the drug-detecting dog’s educational background and general qualifications with specificity to establish probable cause). The affidvait in this case clearly meets those requirements.

[Note to readers: This website will go back three years. I’ve started deleting some early 2006 posts, but not all. Some cases are enduring and are kept. There were over 3300 posts on this website.]

While the SI of defendant’s vehicle for his custodial arrest for driving on a license suspended because of a child support obligation was invalid under Gant, it still could be conducted as an inventory because of defendant’s custodial arrest on a highway. United States v. Ruckes, 586 F.3d 713 (9th Cir. 2009):

We emphasize, however, that the inevitable discovery doctrine will not always save a search that has been invalidated under Gant. The government is still required to prove, by a preponderance of the evidence, that there was a lawful alternative justification for discovering the evidence. Nix, 467 U.S. at 444. “[I]nevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment.” Id. at 444 n.5. Therefore, while the government met its burden here, the district court must conduct a case-by-case inquiry to determine whether a lawful path to discovery–such as inevitability–exists in each case. To hold otherwise would create an impermissible loop-hole in the Court’s bright-line Gant determination.

Because the Washington State Patrol is authorized to both impound and inventory a vehicle when its operator is arrested for driving on a suspended license, Ruckes’s loaded pistol and crack cocaine would have inevitably been discovered notwithstanding Trooper Wiley’s invalid search incident to arrest. Therefore, the evidence was properly admitted under the inevitable discovery exception to the exclusionary rule.

Ninth Circuit criminal blog post here.

December 15, 1791

See the Cato Institute’s website.

Concluding that Fourth Amendment precedents already define GPS surveillance in a public place is this thoughtful piece: Does the Fourth Amendment Prohibit Warrantless GPS Surveillance? by Orin Kerr on the Volokh Conspiracy:

Does the Fourth Amendment require a warrant to conduct surveillance of a government-installed GPS device, such as a device installed on a suspect’s car to monitor the car’s location? This issue comes up occasionally, and the DC Circuit has a case pending on the issue. I don’t think I have ever blogged about it, so I want to offer my thoughts. This post will explain why I think the doctrine here was settled by a pair of Supreme court cases from the 1980s, and why those cases draw a pretty reasonable Fourth Amendment line.

My personal view is not far off, but with a caveat: United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), two beeper tracking cases, are hard to overcome. The only real difference is that the beeper cases had to be surveilled up close. GPS doesn’t require the observer to leave the office. But that is the Fourth Amendment. Somehow, the upheaval in technology since Knotts and Karo (see, e.g., Kyllo, the thermal imaging case) has to be accounted for under the “reasonable expectation of privacy.”

The New York Court of Appeals decision in People v. Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (May 12, 2009), posted here, is hard to disagree with, too. And it distinguishes Knotts and Karo under the state constitution:

Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or “seeing” by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.

That such a surrogate technological deployment is not — particularly when placed at the unsupervised discretion of agents of the state “engaged in the often competitive enterprise of ferreting out crime” (Johnson v United States, 333 US 10, 14 [1948]) — compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious. One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons — to mention just a few of the highly feasible empirical configurations.

Ever the originalist, Justice Scalia, wrote the opinion in Kyllo v. United States, 529 U.S. 334 (2001), but Kyllo involved surveillance of the home, a significant distinction.

Where does Kyllo and the reasonable expectation of privacy go from here? It is not a violation of the Fourth Amendment to use basic police work and tail a suspect. That’s what the police did before beepers. With beepers, their target didn’t have to be in sight, but they at least had to be nearby. Now, with GPS, tracking can occur for weeks or months or years without even being in the same city, state, or country. The battery has to be replaced periodically on a transmitter on a vehicle (wiring it in probably would require a warrant, but that’s not even clear). A cellphone, however, has its own power. As to police cellphone tracking with the complicity of cellphone providers see posts here, here, and here, referring to 8 million law enforcement requests for cellphone GPS tracking, without a warrant.

Also, how does Katz‘s “reasonable expectation of privacy” standard fit in? Katz had a reasonable expectation of privacy in his phone calls even though he could be seen in the phone booth:

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210; United States v. Lee, 274 U.S. 559, 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253; Ex parte Jackson, 96 U.S. 727, 733.

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye – it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

Then there is Bond v. United States, 529 U.S. 334 (2000), which seemingly offers some support. There, a bag in the overhead of a bus was subject to manipulation, and the Court rejected that the bag is open to being felt up by the police as a matter of course because the expectation of privacy still protected it:

Here, petitioner concedes that, by placing his bag in the overhead compartment, he could expect that it would be exposed to certain kinds of touching and handling. But petitioner argues that Agent Cantu’s physical manipulation of his luggage “far exceeded the casual contact [petitioner] could have expected from other passengers.” Brief for Petitioner 18-19. The Government counters that it did not.

Our Fourth Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that “he [sought] to preserve [something] as private.” Smith v. Maryland, 442 U. S. 735, 740 (1979) (internal quotation marks omitted). Here, petitioner sought to preserve privacy by using an opaque bag and placing that bag directly above his seat. Second, we inquire whether the individual’s expectation of privacy is “one that society is prepared to recognize as reasonable.” Ibid. (internal quotation marks omitted). When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent’s physical manipulation of petitioner’s bag violated the Fourth Amendment.

By Katz, the phone had long before become “vital.” Now GPS.

As Kerr recognizes, technology now advances almost monthly, not over decades. And the Fourth Amendment jurisprudence of the Court has not kept up because it hasn’t taken a case that resolves any of these issues.

Thirty-five years ago, Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev, 349, 384 (1974), essentially predicted what GPS has done to our expectation of privacy:

An actual, subjective expectation of privacy … can neither add to, nor can its absence detract from, an individual’s claim to fourth amendment protection. If it could, the government could diminish each person’s subjective expectation of privacy merely by announcing half-hourly on television that … we were all forthwith being placed under comprehensive electronic surveillance.

What about the “right to be let alone”? See Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting) (discussed in the Treatise § 1.26):

The protection guaranteed by the [fourth and fifth] amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

What will SCOTUS do? We already know, just from our experience, that there are at least four votes in favor of broad GPS surveillance. The other five are all, to me, wild cards on this issue.

A towing company was closely regulated under Burger under Colorado law. A complaint was received for the towing companies towing a car without consent and holding it for ransom. The PUC investigated and sought towing records with authorization for the tow, but the towing company did not respond. The request for records within an enforcement proceeding was reasonable under the Fourth Amendment. Eddie’s Leaf Spring Shop & Towing LLC v. Colo. PUC, 218 P.3d 326 (Colo. 2009):

Next, we consider whether the PUC’s regulatory scheme satisfies the three Burger criteria necessary to make reasonable warrantless inspections. First, the state has a substantial government interest in protecting the public from the unauthorized taking of valuable personal property. The Colorado General Assembly has explicitly declared that: “the commission shall issue a permit to a towing carrier and may attach to such permit … such restrictions, terms and conditions … as are reasonably deemed necessary for the protection of the property of the public.” § 40-13-106. Second, warrantless inspections are necessary to further the regulatory scheme. To respond promptly to stranded motorists and to protect their vehicles and personal property, the PUC enforcement personnel must have immediate access to information from carriers about who authorized the tow and where the vehicle is stored. Third, the PUC’s inspection program provides a constitutionally adequate substitute for a warrant in terms of the certainty and regularity of its application. The PUC rules set clear bounds for when towing carriers must respond to records requests. Under Rule 6005(c), entities providing transportation by motor vehicle must furnish time-sensitive documents (including towing authorizations) upon demand, while they must provide other, less urgent business records within two to ten days after the request. 3 Based on the regulatory scheme, the towing carrier is necessarily aware that it must always carry towing authorizations when it takes possession of another’s valuable property. See Exotic Coins, Inc. v. Beacom, 699 P.2d 930, 942 (Colo. 1985) (holding that an act, which required purchasers of valuable articles to maintain a register and to make weekly reports on the register’s contents, made the buyer “necessarily aware” that the register of transactions will be subject to periodic inspections). Thus, we conclude that non-consensual towing is a closely regulated industry and that the state’s regulations meet the requirements of a reasonable and constitutional warrantless administrative search.