OFAC seizure of assets is governed by the special needs exception, but, as the court previously ruled, it is not per se reasonable under the Fourth Amendment. Al Haramain Islamic Found. v. United States Dep’t of the Treasury, 2009 U.S. Dist. LEXIS 103373 (D. Ore. November 5, 2009), prior opinion 585 F. Supp. 2d 1233 (D. Or. 2008):

Pursuant to the Fourth Amendment, a warrant requires a description of the “place to be searched and the persons or things to be seized.” Here, however, as Szubin explains in his supplemental declaration, OFAC and the President have Congressional authority to seize a wide variety of property interests, ranging from money to mortgages, options to insurance policies, merchandise to accounts payable, located both in the United States and elsewhere, the existence of which are not always known to the agency at the time of the blocking order. Szubin explains that OFAC and the President often rely on the holder of the property to freeze the asset and report to OFAC about the existence of the asset. As a result, it would be difficult to apply for a warrant for every asset in each jurisdiction in which the asset might be located. Such a requirement would interfere with the President’s and OFAC’s ability to act fast in blocking assets that are often very liquid and transferrable.

Szubin further explains, “In many cases, the holders of blocked property have access to substantially more information about the property than does OFAC and will be in the best position to determine whether a blocked person has an interest in the property, particularly where a third party is the nominal owner of the property and the blocked person’s interest is indirect, beneficial or contingent.” Supp. Decl. of Adam J. Szubin P 8. OFAC provides notice of blocking actions through press releases and by updating its website, as well as by publishing a notice in the Federal Register. Once they have obtained notice, OFAC relies on holders of blocked property “to comply with their obligations to identify and take appropriate steps to freeze the property, including placing blocked funds into an interest-bearing blocked account in accordance with OFAC regulations. See, e.g., 31 C.F.R. § 594.203.” Id. at P 9. Szubin also explains that, technologically, banks and other financial institutions are in the best position to track ownership of blocked assets and use interdiction software to identify assets that potentially belong to a designated person.

In this way, the challenging circumstances OFAC faces are similar to the difficulties faced by the probation officer in Griffin. Just as requiring a warrant prior to entering a probationer’s home would interfere with the probation system and make it difficult for a probation officer to respond quickly to a potential violation of the conditions of probation, so too would a warrant requirement here “make it more difficult to … respond quickly to evidence of misconduct[.]” Griffin, 483 U.S. at 876.

Since I have determined that both the first and second factors apply in this special needs analysis, I must now “assess the constitutionality of the search by balancing the need to search against the intrusiveness of the search.” Henderson v. Simi Valley, 305 F.3d 1052, 1059 (9th Cir. 2002); Ferguson, 532 U.S. at 78 (“we employ[] a balancing test that weigh[s] the intrusion on the individual’s interest in privacy against the ‘special needs’ that support[] the program”).

As I noted in AHIF, the effect of the seizure of assets on AHIF-Oregon is “substantial. The effect of the government’s blocking and designation orders is effectively to close AHIF-Oregon’s doors.” 585 F. Supp. 2d at 1259. AHIF-Oregon’s assets have now been frozen for more than five years. Nevertheless, a designated entity may seek a license from OFAC to engage in any transaction involving blocked property. 31 C.F.R. §§ 501.801-.802.

On the other side of the scale, the government’s interest in seizing the assets of organizations with links to international terrorist organizations are substantial, as I have indicated above. I believe the government’s interest in stopping the financing of terrorism outweighs AHIF-Oregon’s privacy interests. See Propper, 337 U.S. at 481-82 (TWEA used to “deprive enemies, actual or potential[,] of the opportunity to secure advantages to themselves or to perpetrate wrongs against the United States” and does “necessitate[] some inconvenience to our citizens and others”).

In its first time to address the issue, the Delaware Supreme Court holds that there is no First or Fourth Amendment right in prison mail that was read and seized by prison officials. Johnson v. State, 2009 Del. LEXIS 582 (November 4, 2009):

Here, as in Busby, Johnson’s Fourth Amendment argument may initially appear to be stronger than that under the First Amendment, because he may have had no reason to suspect that officials were inspecting his outgoing mail. However, in Stroud, the only United States Supreme Court case addressing the Fourth Amendment, the court permitted the prosecution to introduce evidence from an inmate’s outgoing mail. No precedent in Delaware or the Third Circuit indicates a different result. Johnson was on notice that his incoming prison mail was being opened and inspected. We hold that Johnson had no reasonable expectation of privacy regarding his non-privileged outgoing prison mail that he sent to Stewart.fn47

47. Stroud v. United States, 251 U.S. 15 (1919).

Defendant’s post-conviction allegation that defense counsel did not challenge his search was belied by the record. Viveros v. State, 2009 Ark. 548, 2009 Ark. LEXIS 710 (November 5, 2009) (per curiam).*

During a stop for over-possession of matches, which is reasonable suspicion in Arkansas, an outstanding warrant was found on defendant, and he consented to a further search. Wade v. State, 2009 Ark. App. 560; 2009 Ark. App. LEXIS 690 (September 2, 2009).*

The California Supreme Court just heard argument on whether a DNA profile is particular enough for an arrest warrant. See Calif. Justices Seem OK With DNA-Based Warrant by Mike McKee of The Recorder on Law.com:

At issue in People v. Robinson, S158528, is whether an unknown suspect’s DNA profile — as opposed to a physical description–can satisfy the so-called particularity requirement for issuing a “John Doe” warrant, and whether such warrants toll the statute of limitations for bringing criminal charges.

A third issue is whether the unlawful collection of a blood sample violates the Fourth Amendment’s protection against unreasonable searches and seizures.

If you think police officers will stop people and make up a cause, see this case where the court just does not buy the justification for the stop after listening to the officer testify. United States v. Williams, 2009 U.S. Dist. LEXIS 101961 (N.D. Ill. November 3, 2009):

Officer Simon’s professed strategy for effecting the desired search and arrest makes little sense. According to his testimony, he approached the vehicle knowing that he lacked his own probable cause, even assuming Williams and Howard were not wearing their seat belts. He therefore approached the vehicle knowing that he would have to find something in plain view to justify a further search of the vehicle or its passengers. Thus, on his own account, Officer Simon enlisted luck to deliver the probable cause he needed but lacked–and luck of course came through for him. But to accept this account, the court would have to accept that Officer Simon was prepared to let Williams and Howard be on their way with only a traffic citation–no search, no arrest–in the event that no contraband or weapons could be found in plain view. That would have been remarkable, since the whole point of the traffic stop was to arrest Williams and Howard. Simply put, Officer Simon was going to stop Williams and Howard one way or another, whether they committed any minor traffic violations or not; that, indeed, was his assignment. His explanation for why he stopped Williams and Howard, therefore, cannot be fully candid, and either seatbelt infractions were not the basis for the stop or Williams and Howard were wearing their seatbelts after all. It makes no difference which is in fact the case; the point is that Officer Simon was not candid and his testimony was not believable.

Officer Simon’s account of the traffic stop would have been far more credible had he acknowledged the simple truth that he was going to stop Williams and Howard one way or another. Instead of candor, however, Officer Simon relied entirely on the seatbelt-violation rationale for the traffic stop and a less-than-straightforward story about what each officer believed and observed to back it up. The problem with being candid in this context is, of course, that Officer Simon needed to provide some basis for the stop without falling back on the probable cause he presumed DEA to have. But the fact that he was in a bind in no way bolsters the credibility of his account; on the contrary, it underscores his strong incentives to tell a story like the one he told–whether or not it was true.

Most importantly, these failures of credibility vitiate the crucial element of Officer Simon’s account: that, as luck would have it, the officers immediately noticed marijuana in two plain-view locations in the SUV, Williams and Howard apparently having made no attempt to close the ashtray or sweep away the “crumbs” before the officers arrived at their vehicle. Now, Williams and Howard may have been fatally careless or too stoned to react sensibly, for all the court knows. But there was no testimony or mention in the police reports of any signs of intoxication, and such explanations would in any event be far easier to credit if Officer Simon’s earlier testimony had been believable. Williams, for his part, does not deny that he had two small bags of marijuana in his pocket and two unsmoked joints in the ashtray; he does not attempt to argue that evidence was planted. He claims only that he closed the ashtray before the officers arrived at the vehicle and that he didn’t just leave marijuana sitting around, in plain view, for two approaching officers to see–while he had a kilogram of cocaine in the back seat.

Considering all the factors that bear on the credibility of Officer Simon’s testimony–his manner of testifying; his incentives to tell a story like the one he told, which otherwise makes little sense; his objective of searching and arresting Williams and Howard on whatever grounds he could muster; and, as he would have it, his confident reliance on sheer luck to achieve that objective–the court cannot credit the essential lynchpin of his story, his wholly fortuitous discovery of marijuana in plain view. In the circumstances of this case, it is far more plausible that the officers found the marijuana while performing the search they were out to perform, one way or another.

[Note, this post and the following one were accidentally posted to lawofcriminaldefense.com last night. Things like that happen when I try to do two things at once.]

Privacy of e-mail

On eff.org, the Electronic Frontier Foundation’s Jennifer Granick, New York Court Scores Over Oregon In Recent Email Privacy Opinions, an excellent perspective of the issues.

Fruit of the Poisonous tree

A discussion of “fruit of the poisonous tree” on CYB3RCRIM3 by law professor Susan Brenner.

Patriot Act Amendments

The USA Patriot Amendments Act of 2009, H.R. 3845, was introduced October 20th, and a letter to the members of the House from many organizations seeking the following privacy law changes to the Patriot Act:

• Protect the privacy of Americans who have no ties to terrorists or spies by ensuring that national security letter authorities are used to obtain records about terrorists, spies, and other agents of foreign powers, instead of records about everyone else;

• Bring procedures for challenging the gag order that often accompanies NSLs into line with the First Amendment, consistent with the December, 2008 Doe v. Mukasey decision of the 2nd Circuit;

• Raise the standard for issuing pen register and trap and trace orders in criminal and intelligence investigations to ensure that the government can access telephone and email to/from information in real time only when specific and articulable facts indicate that the records sought are relevant to an investigation;

• Ensure that Americans receive timely notice that their home or office has been searched for evidence of crime, except when contemporaneous notice would threaten personal safety or result in flight, evidence tampering or witness intimidation;

• Focus FISA surveillance on terrorists, spies and other agents of foreign powers by allowing the “lone wolf” surveillance authority, which has never been used, to expire; and

• Require that FISA surveillance orders that do not name the target of surveillance describe the target with sufficient particularity to allow a court to determine that the target is a particular individual.

Turkmen v. Ashcroft settles

The Center for Constitutional Rights announced today that Turkmen v. Ashcroft settled for $1.26M:

Today, the Center for Constitutional Rights (CCR) announced that five men who had been living in New York and were ultimately deported won a $1.26 million settlement from the United States government in a case challenging post-9/11 racial profiling, illegal detention and abuse of Muslim, Arab and South Asian men.

From Failblog.org.

” . . . no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Blogger didn’t read the Fourth Amendment

On the conservative blog American Thinker today is Is Barack Obama Anti-American? stating:

In the Fourth Amendment, the Founders protected American citizens from government overreach that extends into the home. This was the first time in history that a government promised its people that they did not need to fear that their own government would seize their persons, despoil their homes, or steal their property.

What a colossal misreading of the Fourth Amendment. It doesn’t say against all seizures and searches–only against unreasonable ones: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ….”

Then there is Wyman v. James, 400 U.S. 309 (1971), which came down when I was in law school, and my head still reels from it. Warren Burger was Chief and Harry Blackmun and he had only recently been appointed (Rehnquist and Powell didn’t get appointed until the following year), both by Richard Nixon. The Court on one hand talked about the primacy of the protection of the home from invasions without warrants, but then found that this welfare home inspection was not unreasonable for a host of reasons and concludes with this:

If however, we were to assume that a caseworker’s home visit, before or subsequent to the beneficiary’s initial qualification for benefits, somehow (perhaps because the average beneficiary might feel she is in no position to refuse consent to the visit), and despite its interview nature, does possess some of the characteristics of a search in the traditional sense, we nevertheless conclude that the visit does not fall within the Fourth Amendment’s proscription. This is because it does not descend to the level of unreasonableness. It is unreasonableness which is the Fourth Amendment’s standard. Terry v. Ohio, 392 U.S. 1, 9 (1968); Elkins v. United States, 364 U.S. 206, 222 (1960). And Mr. Chief Justice Warren observed in Terry that “the specific content and incidents of this right must be shaped by the context in which it is asserted.” 392 U.S., at 9 .

There are a number of factors that compel us to conclude that the home visit proposed for Mrs. James is not unreasonable:

. . .

It seems to us that the situation is akin to that where an Internal Revenue Service agent, in making a routine civil audit of a tapayer’s income tax return, asks that the taxpayer produce for the agent’s review some proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If the taxpayer refuses, there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully within his “rights” in refusing to produce the proof, but in maintaining and asserting those rights a tax detriment results and it is a detriment of the taxpayer’s own making. So here Mrs. James has the “right” to refuse the home visit, but a consequence in the form of cessation of aid, similar to the taxpayer’s resultant additional tax, flows from that refusal. The choice is entirely hers, and nothing of constitutional magnitude is involved.

Apparently American Thinker doesn’t think too deep. It does, after all, call a former VP candidate a “visionary.”

Searching sex offender’s houses for Halloween

San Diego County probation officers are checking the 2600 registered sex offenders in their county looking for potential probation violations for putting Halloween decorations up to “entice” children to the house. See Talk Radio 760 in San Diego from CBS8 in San Diego: Probation officers sweep up child sex offenders before Halloween:

In fact, one pumpkin outside an offender’s residence is a violation under the terms of probation.

“We don’t want anything that will draw kids even close to the house,” Fink explained.

After a quick search of the home, everything else appears within the set guidelines.

. . .

The sex offenders who are visited give up their fourth amendment right to search and seizure as part of their conviction.

On November 4th at the Old State House in Boston, where the Writs of Assistance case was argued February 24, 1761, also noted here, is a panel discussion:
“A Knock at the Door” as noted by the Bostonian society:

A Knock at the Door: Three Centuries of Governmental Search and Seizure
Wednesday, November 4, 2009, 6:30 p.m., at the Old State House
Free and open to the public

The protection against unreasonable governmental search and seizure has long been considered a fundamental American right. This concept has its roots in patriot James Otis’s 1761 legal petition opposing the Writs of Assistance and general property searches, a case heard in Old State House.

Even though guaranteed by the Fourth Amendment to the U.S. Constitution, this right has been challenged and debated many times throughout our history. Today we are confronted with new debates over wiretapping, immigration raids, and school drug searches.

Join our panelists, public historian J.L. Bell, legal scholars Frederick Lane and Joseph McEttrick, and Kurt Opsahl, in a discussion of the historical origins of this concept, as well as modern challenges to this long-cherished protection of our rights.

That would be fun. I’m already committed or I would try to go.

Thomas P. Crocker, From Privacy to Liberty: The Fourth Amendment After Lawrence, 57 UCLA L. Rev. 1 (2009). The Abstract:

This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others. Under the Supreme Court’s third-party doctrine, we have no constitutionally protected expectation of privacy in what we reveal to other persons. The effect of this doctrine is to leave many aspects of ordinary life shared in the company of others constitutionally unprotected. In an increasingly socially networked world, the Fourth Amendment may fail to protect precisely those liberties—to live in the company of others free from state surveillance and intrusion—the Constitution should protect. Against the background of the third-party doctrine, we guarantee our privacy only by avoiding ordinary acts of interpersonal sharing. By contrast, the Court in Lawrence explains that intimate conduct occurring within protected personal relationships constitutes a private sphere wherein government may not intrude. Because the third-party doctrine views privacy narrowly, this Article develops a framework for revising Fourth Amendment jurisprudence in light of Lawrence’s protection for interpersonal liberty. By following the lessons of Lawrence, this Article proposes a way to reorient Fourth Amendment jurisprudence away from its focus on privacy in order to protect interpersonal liberty.

(Hat Tip to PogoWasRight.org.)

“6 Imams case” settles

On November 23, 2007 is this post: Six Imams stated claim for false arrest before a flight.

The case just settled, and the WSJ goes crazy.

Re-Upping the PATRIOT Act

On Think Tank West, on re-upping the PATRIOT Act is this thoughtful piece: Some Thoughts on the New Surveillance. The last paragraph:

If we’re going to avoid this, we need to attune ourselves to the ways modern surveillance is qualitatively different from past search tools, even if words like “wiretap” and “subpoena” remain the same. And we’re going to need to stop thinking only in terms of isolated violations of individual rights, but also consider the systemic and structural effects of the architectures of surveillance we’re constructing.

In a consensual encounter that leads to a request for ID, the defendant has the burden of refusing to give his ID to terminate it. State v. White, 2009 Ohio 5557, 2009 Ohio App. LEXIS 4679 (8th Dist. October 22, 2009):

[*P8] The United States Supreme Court has identified three types of police-citizen encounters: (1) consensual encounters, (2) investigatory stops, and (3) arrests. Lakewood v. McLaughlin (Oct. 28, 1999), Cuyahoga App. No. 75134, 1999 Ohio App. LEXIS 5092, citing Florida v. Royer (1982), 460 U.S. 491, 501-507, 103 S.Ct. 1319, 75 L.Ed.2d 229.

[*P9] Consensual encounters do not trigger Fourth Amendment protections. Florida v. Bostick (1991), 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389. During a consensual encounter, a law enforcement officer need not articulate reasonable suspicion and may approach an individual to ask questions, engage in conversation, check identification, ask for consent to search luggage, and so on. Id. So long as a reasonable person would feel free to ignore the law enforcement officer, the encounter is consensual. Id.

[*P10] In the instant case, Haines and White engaged in a consensual encounter. Haines approached White in a public park, asked about his well-being, and learned why he had slept in the park. This was a friendly exchange, and White was free to refuse to answer. Then Haines asked for White’s identification, which White voluntarily provided.

[*P11] On appeal, White argues that Haines violated his Fourth Amendment rights when he asked for identification. He claims that once Haines ascertained that White was all right, Haines should have ended the inquiry. But according to Bostick, a law enforcement officer may ask for identification during a consensual encounter. White bore the burden to end the consensual encounter by refusing to provide identification.

[*P12] Upon learning that White had an Ohio I.D. card, Haines could articulate reasonable suspicion that criminal activity was afoot. Individuals who possess an Ohio I.D. card may not also possess a driver’s license, and Haines found White in the driver’s seat, alone, in an apparently operational vehicle he claimed to have driven to the park. Haines investigated the matter and learned that White’s license had been suspended. At that point, Haines had probable cause to arrest White.

What about Hiibel where failure to give ID can support an arrest? Hiibel goes uncited. And who can realistically believe that they can refuse an officer’s request [read, demand] for ID? Does this case mean that Ohioans can just refuse to give ID? How do they know it is a consensual stop? Do they do so at their peril?

See Jonathan Turley’s website: Shooting the Messenger: Prosecutors Subpoena Grades and Emails of Students of Innocence Project.

PBTs for minors in MI

Police in Michigan were giving minors PBTs to arrest them for minor in possession. After two court challenges struck down two ordinances, Kalamazoo is changing its. See Kalamazoo Gazette: Minors may no longer be required to submit to breath tests.

Immigration enforcement by Maricopa Co. Sheriff

Maricopa County Sheriff Joe Arpaio insists on enforcing ICE laws at the local level, even though is authority comes from a 2005 manual that is no longer federal policy. Arizona Republic: County immigration authority muddled.

The fact the officer said he smelled marijuana but did not find it does not make him incredible. His smell could still provide PC, based on his training. United States v. Hairston, 2009 U.S. Dist. LEXIS 98043 (D. Kan. October 15, 2009):

Defendant also contends that the officer’s statement that he smelled raw marijuana is not credible given that no raw marijuana was ultimately found in the vehicle. But the Court finds Trooper Walker’s testimony credible on this point. “An officer’s detection of the smell of drugs in a vehicle is entitled to substantial weight in the probable cause analysis.” Trooper Walker testified that he had been through two training classes and the Kansas Highway Patrol training academy, where he learned to detect the smell of raw marijuana. He also estimated that he smelled raw marijuana four to five times per month during traffic stops, in the course of his duties as a trooper. The fact that Trooper Walker did not ultimately find marijuana, and instead found cocaine, does not dissipate his credibility for purposes of the probable cause analysis.

Being in a high crime area and then flight on seeing officers was reasonable suspicion. United States v. Kelley, 2009 U.S. Dist. LEXIS 97753 (D. Del. October 16, 2009)*:

Considering this authority against the totality of the circumstances of record, the court finds that Smith’s stop of defendant was supported by reasonable suspicion. The court credits Smith’s testimony and concludes it was reasonable to infer that defendant was engaged in criminal activity based on his presence in a high-crime area and subsequent flight, as well as his nervous behavior after initially spotting the Officers. Defendant’s nervous behavior continued as the Officers drew closer, e.g., reflected by defendant’s repeated glances to the Officers, knocking on the row house door, failing to verbally respond to questions and looking to his right and left as if trying to flee from Smith. Considering these factors in tandem, the court finds the stop of defendant was supported by reasonable suspicion to suspect defendant was engaged in criminal activity.

Search of defendant’s car after a dog alert when defendant had been arrested on an arrest warrant was with probable cause and was not just a search incident. State v. Hobbs, 2009 Ind. App. LEXIS 2201 (October 21, 2009).*

Defendant was in a rented car and unusually nervous. There was nothing in the proffered rental agreement found with the car that referred to defendant or how he came into possession of the car. If he was in possession of the car with permission of the renter, it could have been “easily provided.” Therefore, he lacked standing. United States v. Daniels, 2008 U.S. Dist. LEXIS 110781 (E.D. La. August 19, 2008):

Although it is certainly plausible that the rental agreement in the car was an old agreement, there is no evidence before the Court that Robert Bell is the step-father of Daniels, that he gave Daniels permission to use the car, or that the rental agreement authorized others to drive the car. Based on the evidence before the Court, the Court finds that Daniels has failed to establish that he had a legitimate expectation of privacy with respect to a search of the vehicle. See also United States v. Muhammad, 58 F.3d 353 (5th Cir. 1995) (holding that defendant had not introduced any evidence that he had permission to drive rental car, and thus lacked standing to challenge search). Furthermore, such evidence could have easily been furnished if it existed. Accordingly, the Court finds that the defendant lacks standing to challenge the seizure of the firearm found in a search of the rental vehicle.

Questions to the defendant while the officer was waiting for a normal length response from dispatch did not make the stop unreasonable. United States v. Franklin, 2009 U.S. Dist. LEXIS 98110 (D. Kan. October 15, 2009).*

Defendant’s admission during execution of a search warrant about child sexual abuse that he had probable child pornography on his computer made it reasonable for the officers to seize the computer even though it was not subject to the search warrant. A federal search warrant was then obtained for the computer. United States v. Pontefract, 2008 U.S. Dist. LEXIS 110754 (W.D. La. August 14, 2008).*

On the cert denial in Virginia v. Harris, noted here, the NLJ had this interesting article today: Who inspired Roberts’ dissent in drunk driving case?

Defense counsel successfully argues officer’s general lack of credibility before the stop coupled with story during stop made the stop unreasonable. Need for a frisk was belied by the officer’s actions during the stop. United States v. Eanes, 2008 U.S. Dist. LEXIS 110701 (W.D. N.C. September 5, 2008):

Having carefully considered the testimony and other evidence, as well as the vigorous and able arguments of counsel for the Government and the Defendant in their pleadings and during three different hearings, the undersigned concludes that Officer Wheaton’s testimony is simply not credible. In other words, the undersigned concludes that the Government has failed to establish, through presentation of credible evidence, that the traffic stop in question was properly based on reasonable and articulable suspicion of unlawful conduct or, had the initial stop been proper based on a seatbelt violation or otherwise, that there was reasonable suspicion to justify detention beyond the scope of a routine traffic stop.

As noted in the preceding section, Officer Wheaton’s five-and-a-half year career with the Charlotte-Mecklenburg Police Department has brought his credibility into question long before he stopped the vehicle in which the Defendant was riding on June 2, 2006. Before he became a sworn officer he was caught cheating and had to re-take 20 tests administered by the Police Academy as a result. He has been cited for violating CMPD’s vehicle “pursuit policy.” And, perhaps most seriously, at least two of his cases have been dismissed by state courts for failure to preserve evidence: specifically, MVR tapes, the precise evidence he has again failed to preserve in this case.

As defense counsel ably argues in his “Post-Hearing Memorandum of Law in Support …,” the undersigned finds that the testimony of Officer Wheaton regarding the events leading up to and following the vehicle stop lacks credibility on its face. For example, Officer Wheaton’s testimony that he observed the Defendant make a “stuffing motion” before the vehicle stop, which he alleges he strongly believed to be the Defendant placing a gun under the seat, is inconsistent with his allowing the Defendant to remain in the car after the stop, on that very seat, while he questioned the driver outside the car. It is also entirely inconsistent with his failure to frisk the Defendant — which Officer Wheaton now acknowledges was “an officer safety mistake” — once he finally removed him from the vehicle. Further inconsistencies in Officer Wheaton’s conduct and sworn testimony are the search of other parts of the car before looking under the passenger seat where he now claims to have been virtually certain a gun was hidden; Officer Wheaton’s failure to preserve or test the very evidence he claimed as “an additional legal basis” for the vehicle search (the purported “marijuana stem”); and Officer Wheaton’s failure to call for backup once he realized the passenger had a prior armed robbery arrest and he allegedly deemed the presence of a firearm under his seat a “no-brainer.”

Rather than observing what he claims he observed, the undersigned finds it at least equally likely that, as Officer Wheaton vaguely put it, on the night in question he was simply “looking for people [or] vehicles that stand out.” Observing the vehicle in question, perhaps because the passenger or driver looked at him, it somehow “stood out” in Officer Wheaton’s mind and he decided to follow it. Although Officer Wheaton claims to have noticed the passenger was not wearing his seat belt before the stop, due in part to the many glaring inconsistencies in Officer Wheaton’s testimony, the undersigned finds it just as likely that Officer Wheaton first noticed the Defendant was not wearing his seat belt after the stop. Of course, Officer Wheaton’s failure to preserve the MVR tape means, inter alia, that what may have been the best evidence of whether he observed the Defendant not wearing a seatbelt is now not available to the Court or the Defendant for review.

Nexus was shown by reason to believe child pornography would be found on the premises, and it is not required that it be shown that the defendant was the possessor. United States v. Kahmann, 2007 U.S. Dist. LEXIS 98824 (D. Minn. January 25, 2007):

Accordingly, Defendant’s offender-nexus arguments–that is, arguments that the warrant and supporting affidavit did not identify him as the owner of the computer, as a resident of the premises, or as a probable suspect for child pornography offenses–are essentially irrelevant. See United States v. Hay, 231 F.3d 630, 635 (9th Cir. 2000) (rejecting as “misfocus[ed]” the argument that affidavit failed to indicate that defendant “was a child molester, pedophile, or collector of child pornography” and failed to establish nexus between the crime and defendant’s apartment). This is not a case (perhaps the more frequent case) where the government first identifies a person as being involved in child pornography and then seeks a warrant to search that person’s property for such materials. Rather, here the government first obtained probable cause to believe that child pornography was present on particular premises.n2

n2 In other words, this case does not present the more frequently-encountered nexus argument–that it was not clear that the evidence would be found at the place to be searched. “[T]here must be evidence of a nexus between the contraband and the place to be searched before a warrant may properly issue.” United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000). But the requisite nexus does not require certainty. Rather, probable cause for a search warrant “means ‘a fair probability that contraband or evidence of a crime will be found in a particular place’ given the circumstances set forth in the affidavit.'” Id. at 549 (internal citation omitted) (emphasis added). Here, that nexus was provided by a witness who personally observed the materials on the premises to be searched.

In sum, the warrant, as based on the supporting affidavit, was directed towards particular items of property constituting or associated with child pornography that were located on the premises specified in the warrant. This satisfies the two requirements for a search warrant: “‘that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched.'” Zurcher, 436 U.S. at 557 n.6 (internal quotation omitted).

Seizure of cash from a Los Angeles medical marijuana cooperative was without probable cause under state law, therefore the attempted forfeiture by the federal government, which received the cash from the local police, failed. United States v. $186,416.00 in United States Currency, 2009 U.S. App. LEXIS 22833 (9th Cir. October 20, 2009), opinion below United States v. $186,416.00 in U.S. Currency, 527 F. Supp. 2d 1103 (C.D. Cal. 2007):

In its summary judgment order of August 2007, the District Court reconsidered and instead described the warrant as invalid not for a constitutional infirmity but for its failure to meet the procedural requirements provided in Rule 41 for obtaining a federal search warrant. $186,416.00 in U.S. Currency, 527 F. Supp. 2d at 1138. The court reasoned that the LAPD had probable cause to believe that UMCC was operating in violation of federal narcotics law, even though it lacked probable cause with regards to state law. Id. As such, the LAPD’s only error, according to the District Court, was in failing to comply with the procedural requirements of Rule 41, such as having a federal law enforcement officer request the warrant and obtaining approval from a magistrate judge unless none was reasonably available. Id.; see also Fed. R. Crim. P. 41(b).

We cannot approve this analysis. Rule 41 is inapplicable to “searches conducted by state officers with state warrants issued by state judges, with minimal or no federal involvement,” even if federal prosecution results. United States v. Piver, 899 F.2d 881, 882 (9th Cir. 1990). The present case fits this description. Only a “federal law enforcement officer or an attorney for the government” can request a search warrant under Rule 41, and no such individual was involved in requesting the warrant at issue here. Fed. R. Crim. P. 41(b).

While there may have been probable cause to search UMCC for a violation of federal law, that was not what the LAPD was doing. Nothing in the documents prepared at the time the warrant was obtained from the state court or in the procedure followed to obtain that warrant supports the proposition that the LAPD thought it was pursuing a violation of federal law. Instead, it sought a warrant from a state court judge, though, as the District Court found, it lacked probable cause for a state law violation and failed to inform the state court judge of relevant facts that supported the conclusion that UMCC was not in violation of state law. The LAPD, a city agency, never initiated the process of seeking a federal search warrant from a federal magistrate or indicated that it was pursuing a violation of federal law.

Accordingly, the search was not illegal simply because it failed to comply with Rule 41 but because it violated UMCC’s Fourth Amendment right against unreasonable searches and seizures, in light of the absence of probable cause under state law. See Piver, 899 F.2d at 882 (holding that state warrants must adhere to federal constitutional standards).

Also on Monday, DoJ announced a new policy not prosecute medical marijuana suppliers and users.