Missouri truck cops can stop and inspect trucks, with their routine governed by NASIP procedures. n.2:

The Commercial Vehicle Safety Alliance authorizes officers such as Officer Wilkins to enforce federal motor vehicle laws by checking licenses, logbooks, insurance, etc. See Commercial Vehicle Safety Alliance, North American Standard Inspection Levels [hereinafter NAISP Levels], http://www.cvsa.org/programs/nas_levels.aspx (last visited Oct. 5, 2009); see also 49 C.F.R. § 350.105.

United States v. Parker, 2009 U.S. App. LEXIS 22749 (8th Cir. October 16, 2009):

The Supreme Court has held that “‘closely regulated’ industr[ies] ha[ve] a reduced expectation of privacy.” New York v. Burger, 482 U.S. 691, 702 (1987). Therefore, closely regulated industries may be subject to warrantless searches of property, if “the rules governing the search offer an adequate substitute for the fourth amendment warrant requirement.” United States v. Knight, 306 F.3d 534, 535 (8th Cir. 2002). To qualify as a valid substitute, the rules governing the search must first provide adequate notice by being “sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Burger, 482 U.S. at 703 (quotation omitted). Second, the rules must limit the discretion of inspecting officers “in time, place, and scope.” Id. (quotation omitted). This court has held that commercial trucking is considered one of these “closely regulated” areas. See Knight, 306 F.3d at 535. Additionally, we have recognized that the NASIP procedures provide both the adequate notice and limited discretion required under the Burger analysis. Id.

Missouri law requires all commercial vehicles, except those licensed for less than 1800 pounds, to stop at weigh stations. Mo. Rev. St. § 304.235. Additionally, Missouri allows the State Highway Patrol to adopt NASIP procedures for taking a vehicle out of service. Mo. Rev. St. § 307.400(3) (“Criteria used for placing vehicles and drivers out of service are the North American Uniform Out-of-Service Criteria adopted by the Commercial Vehicle Safety Alliance ….”). Therefore, once a commercial vehicle stops at a weigh station, Missouri State Highway Patrol officers may conduct inspections and implement procedures authorized by the NASIP.

It is undisputed that Officer Wilkins and Officer Lee followed the authorized NASIP procedures in inspecting the truck, trailer, and cargo, and in reaching the decision to take the truck out of service for ten hours. Moreover, although Parker was not allowed to drive a commercial vehicle when his was taken out of service, Parker was free to leave by any other means. Therefore, Parker was not unlawfully detained when he verbally consented to the search of all the vehicles and gave the keys to Officer Mitchell. Because he was not detained when he consented, the search was pursuant to voluntary consent.

On the sidebar is a Hall’s links to state opinions. This has all the links to state court opinions complete as of ten days ago.

For three years I have been complaining to LII at Cornell about a dozen broken links in their state court opinions page, which they have completely ignored. But, they e-mail me for contributions. One year I contributed with a note about the broken links. Yet, they do nothing to repair broken links. I was keeping my own list. Finally, I made the list into my own page.

A conclusory allegation of an egregious Fourth Amendment violation to get around Lopez-Mendoza that the exclusionary rule does not apply to removal proceedings doesn’t cut it. Krasilych v. Holder, 2009 U.S. App. LEXIS 21342 (7th Cir. September 29, 2009):

But even assuming that the guidelines are enforceable and were not followed in Operation Durango, the BIA was still correct in approving the IJ’s decision to deny Krasilych’s request to exclude evidence because the exclusionary rule generally does not apply in removal proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984); Mireles v. Gonzales, 433 F.3d 965, 967 (7th Cir. 2006); Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002). In Lopez-Mendoza, the Court left open the possibility that the exclusionary rule may apply where there have been “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” 468 U.S. at 1050-51; see also Martinez-Camargo, 282 F.3d at 492. Hoping to fit into this exception, Krasilych blithely asserts that “Fourth Amendment violations” in Operation Durango were “widespread and egregious.” What the Fourth Amendment, which prohibits unreasonable searches and seizures, has to do with Krasilych’s involvement in Operation Durango escapes us, and he has not even come close to identifying an “egregious violation” of any other liberty.

CI’s statement he saw cocaine in the defendant’s possession within the last 72 hours and knows what cocaine looks like is sufficient for a SW to issue. United States v. Miller, 2009 U.S. Dist. LEXIS 89182 (N.D. Ill. September 28, 2009).*

Defendant was arrested in his underwear and t-shirt at the door of his hotel room. His request to get clothes was a consent for the police to reenter with him. United States v. Snard, 2009 U.S. Dist. LEXIS 89128 (E.D. Pa. September 28, 2009).*

A search warrant was executed for a stolen Caterpillar 246 Turbo skid loader and documents relating to it. The warrant permitted entry into the house for the records. United States v. Graham, 2009 U.S. Dist. LEXIS 89398 (N.D. Iowa September 28, 2009), adopted 2009 U.S. Dist. LEXIS 96239 (N.D. Iowa October 15, 2009).*

Computer search authorization was particular and a search protocol was not required. United States v. Farlow, 2009 U.S. Dist. LEXIS 94778 (D. Maine September 29, 2009):

Authorization of a search of the computer was particular to the computer crime at issue. When the affidavit’s recitation of probable cause describes the kind of computer crime at issue in this case, specification that a computer’s contents will be searched is reasonably precise. For one thing: “A search of a computer and co-located disks is not inherently more intrusive than the physical search of an entire house for a weapon or drugs.” Upham, 168 F.3d at 535. Moreover: “As a general proposition, any container situated within residential premises which are the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant.” United States v. Gray, 814 F.2d 49, 51 (1st Cir. 1987) (citing United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)). See also Rogers, 521 F.3d at 9-10 (holding that warrant authorizing a search for “photos” reasonably authorized a search for images that might be found on a videotape). The warrant’s authorization to retain Farlow’s computer for purposes of a forensic examination was not overbroad because the probable cause recited by Det. Northrup was particularized with respect to computer crime.

. . .

I conclude that the probable cause recited in the warrant would have supported an explicit authorization to conduct a software-enabled visual scan of images located on the hard drive as one reasonable means of tracking down the body builder image (and related communications), because that image was evidence of the criminal conduct under investigation, even though it was not itself contraband. There is no need for a hearing to support a finding that Sgt. Lang could have focused his investigation on the AOL chat room communications, which may have or would have turned up evidence of the body builder image directly co-located with the pertinent criminal communications data. There is no constitutional requirement that investigators must conduct a search in any particular sequence in order to minimize the likelihood of uncovering contraband or other evidence of a crime, and the imposition of a search protocol ruling out a visual image search in a case like this would only afford special protection to those who engage in criminal conduct by computer.

Common authority was reasonably found from defendant’s live-in girlfriend who was there with her children and she was dressed for bed. United States v. Zambrana, 2009 U.S. Dist. LEXIS 94684 (W.D. Mich. October 9, 2009).*

Stop of the defendant was proper when he fled from the police when they tried to talk to him. Police arrived to investigate a burglary, and defendant was across the street and nobody else was around. United States v. Broomer, 2009 U.S. Dist. LEXIS 94720 (D. Del. October 9, 2009).*

Renter of a motel room consented to a search of the room, and defendant’s jacket was in the room. The officer picked up the jacket, and it was unusually heavy. The officer could search the jacket for officer safety. United States v. Adams, 2009 U.S. App. LEXIS 22485, 2009 FED App. 0363P (6th Cir. October 14, 2009):

Here, it is not disputed that Bond, as the renter of Room 241, had a legitimate privacy interest in the room and, thus, the authority to give consent to the officers to search the room for contraband. It is also undisputed that he gave such consent. Accordingly, Adams does not contend that his Fourth Amendment rights were violated by the search of the motel room. Instead, he contests the scope of Bond’s consent and whether it extended to the inside pocket of Adams’s jacket where the gun was found. Adams argues that his Fourth Amendment rights were violated when Sergeant Eby searched the interior pocket of his jacket, which was “kind of hidden” in the “little gap” between a bed and a wall. Thus, the question is: whether under the facts of this case, Adams–by his conduct–retained a sufficient expectation of privacy in the jacket, such that Sergeant Eby violated Adams’s rights under the Fourth Amendment when he picked up the jacket, and when he searched the inside pocket. See United States v. Ross, 456 U.S. 798, 822-23, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (noting that Fourth Amendment protection varies depending on the factual circumstances in each situation). We find that he did not.

The district court concluded that Sergeant Eby’s search of the motel room fell within the consent exception to the warrant requirement. Moreover, the court concluded that Bond’s consent to search the motel room for contraband “included consent to look throughout the room in places where contraband could possibly be located[, a]nd that picking the jacket up off the floor was within the scope of that consent.” (SuppTr., Vol. II at 227.) The court further found that once the jacket was picked up “Officer Eby asked whose jacket it was and nobody claimed it.” Thus, the court determined that “there was no assertion of privacy in the jacket[, a]nd any privacy interest was effectively abandoned at the time under either version of the facts about when the gun was discovered in the jacket.” Once Sergeant Eby picked up the jacket and determined that it was heavy, the court concluded that Eby “was entitled to determine for officer safety why it was heavy since there is a natural possibility that a weapon might be in the jacket.”

Sen. Franken read a DoJ official the Fourth Amendment during a hearing about roving wiretaps. “This is surreal” responded the official.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part: “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.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question.

The search warrant here for voluminous records was not overbroad. United States v. Jackson, 2009 U.S. Dist. LEXIS 93468 (D. V.I. October 2, 2009)*:

Jackson argues that the warrant in this case lacked particularity and was constitutionally overbroad because it authorized seizure of a wide array of personal documents and records. See Def.’s Mem. in Supp. of Mot. to Suppress at 4-6. The warrant authorizes seizure of specific categories of documents including “bank records, monthly statements of account checks, deposit slips, wire transfer applications, savings passbooks, certificates of deposit, monetary instruments, or other documents and instrumentalities relating to the obtaining, movement, or securing of money.” Additionally, the warrant authorizes seizure of “equipment used in the cultivation of marijuana,” “books, magazines, papers, notes and contact information related to the cultivation of marijuana;” “identification documents,” “records relating to foreign and domestic travel, “records of asset acquisitions” and “other items constituting proceeds of criminal activity.” Defendant claims that “the warrant failed to restrict government agents in any meaningful way, converting the warrant into the type of general warrant prohibited by the Fourth Amendment.” Id. at 5-6.

The breadth of items to be searched and seized depends upon the particular factual context of each case and also the information available to the investigating agent that could limit the search at the time the warrant application is given to the magistrate. See Yusuf, 461 F.3d at 396. In United States v. American Investors of Pittsburgh, 879 F.2d 1087 (3d Cir. 1989), the government sought twenty-three categories of documents as evidence of money laundering and the defendants argued that the search was unconstitutionally overbroad. The Third Circuit Court of Appeals disagreed, noting that a broad range of documents were required to be searched to “sort[] out the details of th[e] sophisticated scheme.” Id. at 1106. The court explained that “[t]he fact that the warrant authorized a search for a large amount of documents and records does not necessarily render the search invalid so long as there exists a sufficient nexus between the evidence to be seized and the alleged offenses.” Id. at 1105-06; see Yusuf, 461 F.3d at 393; see also United States v. Kepner, 843 F.2d 755 (3d Cir. 1988) (holding that search warrant seeking “documents, records, and personal effects” of defendants was sufficiently particular and was not impermissibly overbroad).

After reviewing the application in the present case, the Court concludes that the warrant did not violate the particularity principle, as the warrant was limited in that it specified that agents were searching for evidence of a specifically enumerated federal crime and the evidence sought related to drug trafficking activities. The warrant in this case clearly describes the automobiles as well as the specific locations of the houses to be searched. The warrant authorizes the seizure of only those items which tend to show Jackson’s involvement in the criminal activity being investigated.

Defendants were in a vehicle owned by their boss who let them drive it. The name given matched the registration information, so he [barely] showed his standing of lawful possession of the vehicle. United States v. Perez, 2009 U.S. Dist. LEXIS 91408 (D. Kan. September 30, 2009):

Nonetheless, the court believes that under the circumstances, and viewing the facts in the light most favorable to the defendants, defendants have met their burden, although scantily, to establish standing. Defendant Perez stated that he gained possession of the pick-up from his boss who owned the vehicle. Dispatch apparently confirmed that the registration given to the Trooper by defendant Perez was in fact for the pick-up he was driving, and that the person named by defendant Perez as his boss was in fact the registered owner of the pick-up. “The proponent of a motion to suppress need not always come forward with legal documentation establishing” lawful possession of the area searched, [but] “the proponent must at least state that he gained possession from the owner or someone with the authority to grant possession.” United States v. Martinez, 983 F.2d 968, 973 (10th Cir. 1992), citing United States v. Miller, 821 F.2d 546, 548 & n. 2 (11th Cir.1987)), cert. denied, 507 U.S. 1056 (1993). Defendant Perez has sufficiently done so.

Turn signal violation led to traffic stop which resulted in a plain view of crack in the cupholder in plain view. The search of the car after that was with probable cause. United States v. Hudson, 2009 U.S. App. LEXIS 21544 (3d Cir. September 29, 2009) (unpublished).*

Defendant was a law enforcement officer who was under investigation for child pornography on his computer. He cooperated with police and consented to a search. As a law enforcement officer, he understood his legal ability to not consent. United States v. Cole, 2009 U.S. Dist. LEXIS 91345 (D. Neb. October 1, 2009).

The determination of defendant’s lack of standing in his mother’s house while he was in jail is not as clear as the USMJ found, but, standing aside, the search was still valid under the good faith exception. United States v. Alexander, 2009 U.S. Dist. LEXIS 91466 (W.D. La. September 30, 2009).*

In a case on Findlaw, two suspects were arrested in the Southern District of Texas near Brownsville TX by CBP agents who responded to a ground sensor and followed footprints in the desert and found them asleep with 350 lbs of marijuana. Dope Smugglers Caught Napping On 350 Lbs of Pot by Joel Zand.

Now Safford is a decided case instead of just an argued case. The incomparable Vista operating system, which, frankly sucks and would make a grown man cry,* or at least seriously considering going to Apple, crashed an almost new (6 months old) Lenovo computer** and took out the entire hard drive. Getting back into the blog settings for the template was not easy, after having to find the lost copy of the software that enabled it, and then getting the settings.

I’m a lawyer, see, not a tech guy. Besides, I had a real job to contend with. I have other plans for the template that have been on hold. We’ll see.

_________

* Remember Windows 98’s ad campaign with the Rolling Stones’s Start Me Up? One of the lines is “You make a grown man cry.” My office computer guy actually said, “Vista sucks. It did this. What can I say?” I have beaten computers to death before, but doing that to this computer would be like beating a hospital patient to death for having pneumonia. Not even Rep. Eric Cantor would do that; just make the patient sell everything and get charity.

** Only Vista would kill a computer with a ThinkVantage Rescue and Recovery blue botton.

Defendant’s issues for appeal of denial of a suppression motion in a child porn case did not rise to exceptional circumstances for bail pending appeal. Child porn is a crime of violence where there is no bail pending appeal without exceptional circumstances. United States v. Bonczek, 2009 U.S. Dist. LEXIS 87782 (S.D. N.Y. September 8, 2009):

The Government urges that Mr. Bonczek has failed to make a clear showing of exceptional circumstances. Mr. Bonczek argues that the issues he will raise on appeal are “exceptional,” including:

(1) The District Court failed to suppress the pornographic materials seized from Bonczek’s apartment, as it should have, and instead erroneously relied on the:

(a) independent source doctrine; and
(b) inevitable discovery doctrine; and

(2) The affidavit in support of the search warrant failed to describe the child pornography with sufficient particularity.

Of course, agreeing that the questions on appeal are substantial does not mean that they are exceptional. …

. . .

As to the exceptional nature of the law applicable to Mr. Bonczek’s suppression motion, there are no unusual legal or factual questions. There is abundant law on Mr. Bonczek’s issues for appeal, and the legal questions are not unusual, even if the Second Circuit has not specifically ruled on the sufficiency-of-the-affidavit issue that Mr. Bonczek challenges. See United States v. Jasorka, 153 F.3d 58, 60-61 (2d Cir. 1998).

Comment: Based on the cases I’ve read, without even knowing the specifics of the issue here, I would have to agree with the court that the chances of success on the appeal where PC is the issue is less than 1 in 30 because of the good faith exception. So few child porn searches win that, statistically, it is unlikely he will win on appeal.

In an IAC claim, defendant would lose on the merits of the search both because there was PC and because the GFE, Mil. R. Ev. 311(b)(3), applied. United States v. Orona, 2009 CCA LEXIS 345 (A.F. Ct. Crim. App. September 14, 2009):

In the case sub judice, the military judge addressed the three prongs of Mil. R. Evid. 311(b)(3) and found that they were all met. We agree. Concerning the first prong, the military judge concluded that the warrant was issued by a competent authority. On this point, we note that the evidence highlights the magistrate was a competent authority to issue the search authorization. With regard to the second prong, the military judge concluded that there was no evidence that Special Agent MB provided false information to the magistrate or that Special Agent MB acted in bad faith by failing to advise the magistrate that the appellant’s background showed no pedophilia tendencies.

We likewise note there is neither evidence that the information Special Agent MB provided in the affidavit was false much less deliberately false nor evidence that Special Agent MB exhibited a reckless disregard for the truth in providing information to the magistrate. Her failure to provide the information trial defense counsel highlighted in his motion simply does not evince a reckless disregard for the truth. Moreover, we have examined the affidavit and note that it is more than a “bare bones” recital of conclusions. The affidavit is replete with facts from which the magistrate could conclude, correctly or incorrectly, that the appellant had possessed and was still in possession of child pornography.

Lastly, the military judge found, contrary to the appellant’s assertion, that there was no evidence the magistrate “rubber stamped” Special Agent MB’s request and, in so doing, abandoned his judicial role. Rather, the evidence shows the magistrate was neutral and detached and he conscientiously exercised his judicial role. In the final analysis, we agree with the military judge’s conclusion that the good faith exception is applicable. Accordingly, we find that the military judge did not err in admitting the evidence Special Agent MB seized from the appellant. The evidence was properly admissible because the magistrate had a substantial basis for determining that probable cause existed and, barring that, the evidence is properly admissible under the good faith exception.

Dog sniff was independent of an illegal search after the dog was called, so the dog sniff supported the search. United States v. Rendon, 2009 U.S. Dist. LEXIS 86409 (M.D. Ala. September 21, 2009):

While the Eleventh Circuit has not squarely addressed whether a canine sniff can provide an independent source of probable cause that justifies the admission of otherwise tainted evidence, several other circuits and district courts have addressed the subject. For example, in United States v. Forbes, 528 F.3d 1273 (10th Cir. 2008), government agents searched the interior of defendant’s tractor-trailer, allegedly in violation of the Fourth Amendment, and then conducted a canine sniff of the exterior of the tractor-trailer. Id. at 1275-76. During the sniff, the canine alerted to drugs in the tractor-trailer, which was subsequently searched. Id. The Tenth Circuit determined that the evidence was admissible because the officers did not obtain the evidence as a result of an illegal search but rather through the independent source of a dog sniff. Id. at 1280. Notably, the initial illegal search yielded no contraband or evidence of wrongdoing, so it could not be said that the canine sniff was dependent on the prior illegal search. Id. Other authority, relied upon by the Magistrate Judge, similarly supports the proposition that a subsequent canine sniff can purge the taint resulting from a prior illegal search, and thus provide the probable cause necessary for the admission of any obtained evidence. See United States v. Moore, 329 F.3d 399, 404-05 (5th Cir. 2003); United States v. Harris, 175 F.3d 1017 (4th Cir. 1999); United States v. Jackson, 548 F. Supp. 2d 1314, 1324 (M.D. Fla. 2008).

In this case, the Magistrate Judge concluded that the decision to conduct a canine search was not in any way reliant upon the earlier illegal search conducted by Troopers Cox and Faulk (Doc. # 43, p. 11). This conclusion was based on the factual finding that the canine was called before any illegal search of the tractor-trailer took place (Doc. # 43, p. 2-3; Doc. # 42, p. 39, 52). Accepting the factual finding that the canine was called before any illegal search occurred, the court agrees that the canine sniff was a sufficiently distinguishable means of obtaining the probable cause necessary to justify the search and purge any taint from the prior illegal search in this case.

Contrary to defendant’s assertion, defense counsel did file a motion to suppress and it was considered on the merits and denied, so he cannot raise IAC on this ground. United States v. Whitehead, 2009 U.S. Dist. LEXIS 86184 (N.D. Tex. September 21, 2009).*

Defendant’s guilty plea waived his claim after the plea that the consent form was forged. United States v. Hayes, 2009 U.S. Dist. LEXIS 86707 (N.D. Fla. August 31, 2009).*

Updated citations, but nothing new.

The state’s CPS’s taking custody of a child is a seizure of the child from the parents. Smith v. Tex. Dep’t of Family & Protective Servs. Child Protective Servs., 2009 U.S. Dist. LEXIS 84778 (W.D. Tex. September 15, 2009).*

Plaintiff inmate’s claim against a prison telephone provider who accidentally recorded the inmate’s attorney-client telephone call showed a Fourth Amendment claim, but it was defeated by qualified immunity. Walen v. Embarq Payphone Servs., 2009 U.S. Dist. LEXIS 84659 (E.D. Mich. July 28, 2009):

A Fourth Amendment claim can be brought only when a justifiable expectation of privacy exists. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A defendant who alleges that a search violated his Fourth Amendment rights has the burden of showing that he had a legitimate expectation of privacy in the place or thing that was searched, and to meet that burden must satisfy a two-pronged test: (1) he must manifest an actual, subjective expectation of privacy, and (2) that expectation is one that society is prepared to recognize as legitimate. United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1988).

An individual’s expectation of privacy is significantly reduced within the confines of a prison. Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). However, given the privileged nature of attorney-client communications, and the importance of protecting those communications from improper disclosure, such communications, including telephone calls, would arguably be protected by the Fourth Amendment, under both the subjective and objective prongs of Sangineto-Miranda.

An officer patrolling in a park ran the license number of a vehicle and concluded that the owner had a suspended license and a prior for drugs. When he got in the vehicle to drive off, the vehicle was stopped, and a drug dog was called in. The stop was justified, and the dog sniff was not improper. A dog sniff is like a plain view. State v. Hoppert, 2009 Ohio 1785, 181 Ohio App. 3d 787, 910 N.E.2d 1106 (8th Dist. 2009).*

Defendant who pled guilty before motion to suppress could have been filed cannot claim IAC against defense counsel. State v. Bishop, 2009 Ohio 1797, 2009 Ohio App. LEXIS 1519 (8th Dist. April 16, 2009).*

Police responded to a domestic disturbance call involving defendant firing a gun at a woman, officers went to where defendant stayed and where he ran to and talked to his mother, and she consented to a search. She lacked actual authority to consent to the search of her adult child’s room, but she had apparent authority. “Based upon the totality of the circumstances, we conclude that the facts available to Officer Rattigan at the time of his search would lead a person of reasonable caution to believe that Nunley possessed apparent authority over the third floor. Nunley was Basking’s mother, owned the residence, directed Officer Rattigan to the third floor, escorted Officer Rattigan to the third floor, and encouraged Officer Rattigan to search the third floor.” A different standard does not apply under the state constitution (following three other states coming to the same conclusion). Commonwealth v. Basking, 2009 PA Super 67, 970 A.2d 1181 (2009).*

A search warrant for drugs and possible records of drug sales did not permit officers to enter defendant’s computer where the execution of the warrant produced no evidence of drug sales on the premises. (There was also a Franks violation because the officer represented a neighbor’s report of drug use as drug sales, but the remainder of the affidavit showed PC. Child porn was found on the computer.) United States v. Payton, 573 F.3d 859 (9th Cir. 2009):

The search warrant did explicitly authorize a search of Payton’s premises to find and seize, among other things, “[s]ales ledgers showing narcotics transactions such as pay/owe sheets,” and “[f]inancial records of the person(s) in control of the premises.” The crucial question is whether these provisions authorized the officers to look for such records on Payton’s computer. We conclude that, under our recent and controlling precedent of United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), as applied to the circumstances of this case, they did not.

. . .

. . . As we read this passage, it holds that under certain circumstances, computers are not an exception to the rule permitting searches of containers to find objects specified in a warrant. A reasonable negative inference is that, absent those circumstances, a search of a computer not expressly authorized by a warrant is not a reasonable search. Those circumstances are absent in the present case. The search of Payton’s residence for evidence of drug sales produced none. There was nothing in the neighborhood of Payton’s computer, or indeed in the entire residence, that suggested that evidence of drug sales or anything else specified in the warrant would be found on the computer in his bedroom.

It is true, of course, that pay/owe sheets indicating drug sales were physically capable of being kept on Payton’s computer. But a similar bare capability was present in Giberson; a computer is physically capable of containing false identification documents. In Giberson, we did not simply recite that fact and uphold the seizure; we relied quite specifically on the documents found next to the printer and the computer, in circumstances indicating a likelihood that they were created on and printed from the computer. It was the presence of those documents that rendered the search reasonable.

Plain view in a murder case led to an automobile exception search, and Gant was inapplicable. United States v. Brown, 2009 U.S. Dist. LEXIS 83828 (D. Minn. July 30, 2009).*

Law enforcement officer who was familiar with criminal activity at particular intersection who observed furtive actions by the defendant suggestive of being armed was able to make a stop and patdown of the defendant. United States v. Brown, 2009 U.S. Dist. LEXIS 83932 (E.D. Va. September 14, 2009).*

Smell of marijuana justified the search of defendant’s car after its stop, and defendant’s reliance on Gant was misplaced. United States v. Milan, 2009 U.S. Dist. LEXIS 84033 (N.D. Tex. September 15, 2009).*

Defendant consented to search when officer asked about illegal things in the car while questioning him about a suspended license. United States v. Miller, 2009 U.S. Dist. LEXIS 83911 (M.D. Ala. August 27, 2009):

The video shows that while writing the warning ticket, Deputy Salter began asking Miller questions about his suspended licences and at one point asked “you don’t have any guns or drugs or anything illegal in your car do you?” Miller replied “no sir, feel free to check if you want.” Thus, consent was given, and Miller’s argument is that at this point the deputy was finished writing the ticket.

Defendant did not show a sufficient issue of fact to get a suppression hearing. The parties offered their versions of events, and defendant’s version was more a challenge to the scope of Belton. Caller ID identified the caller, and he claimed to be a crime victim, not a CI, so a lower standard of justification is applied to him. Here it was sufficient. United States v. Casper, 536 F.3d 409 (5th Cir. 2008), vacated and remanded, 129 S. Ct. 2156, 173 L. Ed. 2d 1153 (2009):

We have agreed with other circuits that a citizen reporting a crime is more reliable, because such citizens are exposed to criminal liability for false complaints. United States v. Basey, 816 F.2d 980, 988-89 (5th Cir. 1987). Reliability is the central concern. Thus, in Basey the tipster was reliable because the deputies conducting the Terry stop knew the citizen informant. Id. at 988. In contrast, in Martinez, 486 F.3d at 861-62, where the government “never introduced any evidence about the informant whatsoever and made no effort to illustrate his or her reliability in the district court,” the tip was the “functional equivalent of an anonymous tip. To characterize it as anything else would be to assume the very credibility and reliability that the government has the burden of proving.”

In the instant case, the government must establish the reliability of the informant, base its reasonable suspicion on other factors named in Martinez, or both. The government offers that the informant was not anonymous because he could be identified by his phone number and held accountable for a false tip if that became necessary. We agree that, where instant caller identification allows the police to trace the identity of an anonymous telephone informant, the ready identifiability of the caller increases the reliability of such tips. See J.L., 529 U.S. at 276 (Kennedy, J., concurring). Additionally, an informant who explains the basis for his knowledge increases his reliability, see id. at 271, especially if he is a person relating the details of a crime he has personally suffered, see Adams v. Williams, 407 U.S. 143, 147 (1972).

Opinion on remand on September 18, here.

The Fourth Circuit elaborates on facts in Hunsberger v. Wood in denying rehearing. See opinion of concurring judges on denial of rehearing en banc, Hunsberger v. Wood, 2009 U.S. App. LEXIS 20453 (4th Cir. September 14, 2009), on the qualified immunity question:

The facts which I have recounted above in this case would certainly have suggested to an objectively reasonable officer that this teenage girl was not only missing but possibly hurt and incapacitated. Not to belabor the point, but any parent whose daughter was out after midnight, not answering her cell phone, in a house where she was not supposed to be, in a neighborhood where another residence had only recently burned down, with her car blocking the road, etc. would be alarmed, as plaintiffs admit Blessard was. And any reasonable officer would have tried to help. Even adopting plaintiffs’ view that Wood expressly consented to Blessard’s presence, as the panel’s opinion explicitly did, Wood acted reasonably. It was reasonable for Wood to think that Blessard’s presence in the home would be useful. The more quickly Wood could identify NW, the more quickly he could determine whether she needed assistance. And if she was frightened and hiding in the home, the one thing she might respond to was a parent’s reassuring voice. If the missing NW was being held against her will, she might well answer a parent, but not a stranger.

Even to this day, plaintiffs have not suggested any remotely practical course of action Wood should have pursued. Wood could have entered alone and asked any girl he encountered to identify herself. But he had no guarantee of getting an answer, much less a truthful one. He wasn’t even sure the missing girl was conscious or hadn’t passed out. He could have required any girl who was possibly the missing NW to come outside in the dark after midnight to be identified by Blessard, but such a procedure would be more traumatic to young girls than the one actually used. Further, these alternatives would have been time-consuming, and time was one thing this officer did not have a whole lot of. It’s always tempting to go the could-have/should-have route in hindsight, but that is not how the Supreme Court has structured the objective reasonableness inquiry. If a unanimous panel of this court believed upon reflection that Wood’s actions were reasonable, how was he to figure otherwise in the fleeting minutes he had? We thankfully know now that NW is safe and that the Hunsberger home was not vandalized or burned to the ground. But no one knew at the time.

The post of July 1st:

“Because the objective circumstances confronted by defendant on the night in question suggested that plaintiffs’ home was being vandalized and that a missing teenage girl was in the house and in need of assistance, the search was reasonable under the Fourth Amendment exigent circumstances doctrine. We thus reverse the judgment of the district court and grant the defendant qualified immunity in this case.” Hunsberger v. Wood, 2009 U.S. App. LEXIS 13925 (4th Cir. June 29, 2009).