Defendants’ napping in somebody else’s motel room without any explanation of their relationship to the renter of the room did not show an expectation of privacy in the motel room. Anderson v. State, 103 Ark. App. 137, 286 S.W.3d 763 (2008) (4-2):

Examining the facts of this case, the record shows only that appellants were napping during the afternoon in a motel room that was registered to another person and that they had no personal belongings with them in the room. Otherwise, the nature of appellants’ presence in the room and their status vis-a-vis the registered occupant were completely unexplained. Appellants failed to offer any evidence revealing how they came to be present in someone else’s motel room, or how long they had been there. Appellants did not pay for the room, and there was no evidence that they had a key to it. Unlike Owen v. State, supra, there was no evidence introduced to show that appellants knew the registered occupant of the motel room or that they had permission from the registered occupant to stay overnight in the room. And, we cannot assume, without any factual support, that appellants’ presence was somehow authorized simply because they were asleep in the room, as the record could just as easily suggest that appellants surreptitiously gained entry to the room without the knowledge and invitation of the registered occupant.

The officer had probable cause to believe that defendant possessed crack when he was arrested after he got out of his car, so the car was subject to search under the automobile exception, and Gant had no application. McCloud v. Commonwealth, 286 S.W.3d 780 (Ky. 2009).*

Defendant stopped in the middle of the road, so the officer could approach him and ask questions, which led to asking about whether there were drugs in the car, and defendant admitted there were. United States v. Williams, 2009 U.S. Dist. LEXIS 55450 (E.D. Mich. June 30, 2009)*:

Here, Officer Watson approached a vehicle that was improperly parked in the middle of the road and asked the driver for identification. Officer Watson then asked Defendant if he had any marijuana in the vehicle with him and Defendant responded affirmatively. Officer Watson did not engage in any overbearing or coercive activity in making these requests and there is no evidence suggesting that Officer Watson conveyed a message that compliance with his requests was required. To the contrary, the evidence shows that Officer Watson gave no indication that Defendant was not free to leave and to refuse to respond to questioning. For example, Officer Watson did not ask Defendant to exit his vehicle and did not ask Defendant to pull his vehicle to the side of the road. Although Defendant’s vehicle was running when Officer Watson talked to Defendant, Officer Watson did not ask Defendant to turn the vehicle off.

The search warrant permitted a search of pants pockets (aside from the fact that defendant disclaimed this issue in the trial court and then raised it on appeal). State v. Thompson, 2009 Ohio 3193, 2009 Ohio App. LEXIS 2746 (6th Dist. June 30, 2009):

[*P15] A pants pocket is a logical place for a cell phone or a pocket knife to be kept. After all what better place to find a pocket knife then in one’s pocket? Stated differently, the officer was not searching for an elephant in a matchbox. Moreover, the officer who conducted the search testified that he was a 30 year veteran of the force who had previously found crack cocaine hundreds of times. According to the officer, when he felt the plastic baggie with what felt like rocks inside, he concluded based on his experience that the object was crack cocaine. This is sufficient testimony for the trial court to properly find that the crack was immediately apparent. See State v. Johnson, 2d Dist. No. 21361, 2006 Ohio 6311, P 20. Therefore, the search was within the scope of the warrant and the nature of the object found was immediately apparent to the officer conducting the search.

Coast Guard boarded a ship based on a whistleblower’s claim the crew was dumping oily waste at sea. The boarding was based on 14 U.S.C. § 89(a). The Coast Guard asked for the logbook for oily waste, and the crew produced it. United States v. Fleet Mgmt., Ltd., 2009 U.S. Dist. LEXIS 74277 (E.D. Pa. August 20, 2009).

Reasonable suspicion was the standard for boarding:

Dyachenko’s initial argument is that the warrantless seizure of his notepads violated the Fourth Amendment to the United States Constitution. The government argues that the seizure was valid pursuant to 14 U.S.C. § 89(a), which permits the Coast Guard to make warrantless searches and seizures onboard a ship for “the prevention, detection, and suppression of violations of laws of the United States.” Searches conducted pursuant to that statutory authority require only a “reasonable suspicion of criminal activity” to survive Fourth Amendment scrutiny. United States v. Varlack Ventures, Inc., 149 F.3d 212, 216-17 (3d Cir. 1998). The reasonable suspicion, however, “must be based on specific articulable facts, together with rational inferences drawn from those facts ….” Id. at 217 (quoting United States v. Roy, 869 F.2d 1427, 1430 (11th Cir. 1989).

There was no discussion of standing other than the court’s comment that there was no personal information in the book, not that it would matter:

During a series of evidentiary hearings held in early 2008, Marine Science Technician Chief Matthew Jones, an experienced Coast Guard officer, testified that he led the investigation onboard the Valparaiso Star on January 24, 2007. He stated that the Coast Guard boarded the ship only after receiving information from a former crew member, Motorman Gopal Singh, that he had been fired recently for refusing to participate in the illegal dumping of large quantities of the ship’s oily waste at open sea. He further testified that shortly after boarding, he and other Coast Guard personnel uncovered evidence which he believed corroborated the whistleblower’s claim. This included the presence of an unusual hose beneath the deck plates in the engine room, discrepancies between the ship’s “Oil Record Book” and the daily tank sounding log, and the presence of oil in atypical places aboard the vessel.

Armed with that knowledge and the information provided by the whistleblower, Jones and other Coast Guard personnel interviewed the engine room staff, including Dyachenko, regarding the questionable activity. Jones testified that during the interview, and in response to questions about illegal activity, Dyachenko displayed a notepad that had been on his person. According to the investigative report created that same day, Dyachenko stated that the notepad contained sounding logs “for his knowledge on what needs to be done in the engine room.” Nonetheless, he refused to hand over the notepad to the investigators at that time. Dyachenko ended the interview by stating that he wished to disclose “the truth” but was concerned that the investigators would write it down.

Jones responded by seeking the aid of the Captain, defendant Grewal. He informed Grewal that he had authority to seize the notepad and asked for Grewal’s help in obtaining it. Dyachenko produced both that notepad and another for Grewal, who immediately turned them over to the Coast Guard. Both notepads contain detailed technical information relating to maintenance of the engine room and little if any personal information.

We conclude that by the time Dyachenko displayed the notepad to the investigators and stated that it contained information related to maintenance of the engine room, the Coast Guard had a reasonable suspicion of criminal activity and was authorized to seize the notebook under § 89(a). Consequently, we will deny the motion of Dyachenko insofar as it requests suppression of the notebooks under the Fourth Amendment.

An interesting view of Gant and search incident law just posted on SSRN: Colin Miller, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. The author is Associate Professor of Law at The John Marshall Law School and Editor of the EvidenceProf Blog.

“[U]tterly defective” search warrant for a pool hall that described neither the place to be searched nor the things to be seized that led to 50 people being searched led to suppression. United States v. Glenn, 2009 U.S. Dist. LEXIS 71959 (S.D. Ga. July 29, 2009). The introduction:

Alphonzo Glenn, along with some forty to fifty other people, was a patron of the What Game Room in Reidsville, Georgia when police officers arrived to execute a search warrant that they believed authorized them to search the premises for distilled spirits being sold by the proprietor without a license. The search warrant was utterly defective, however, for it described neither the place to be searched nor the items to be seized. On the strength of this facially invalid warrant, a squad of officers and SWAT team members burst into the crowded and dimly lit premises, ordered everyone to the floor, and proceeded to patdown each of the patrons for weapons and contraband, a procedure that took over an hour to complete. Glenn now moves to suppress the small caliber pistol that was removed from his waistband, as well as the statements that he made to the officers following the discovery of that weapon. (Doc. 19.) His motion should be GRANTED.

Defendant did not have a right to be informed of his right to refuse a consent search or even be Mirandized before the search occurred. United States v. Nandi-Cipriano, 2009 U.S. Dist. LEXIS 72292 (D. Neb. July 21, 2009).*

“The law and circumstances permitted officers to impound Dorsett’s van to place it in protective custody and for investigation based on probable cause. After the officers arrested Dorsett, he could no longer drive the van. Absent impoundment, the van would have remained, not at Dorsett’s residence, but at a residence known for narcotics. Therefore the officers were justified in taking the van into protective custody. [¶] The officers also had probable cause to impound the van.” United States v. Dorsett, 2009 U.S. Dist. LEXIS 72010 (D.Neb. June 15, 2009)* [Extremely poor choice of words. The court should have just left this at PC and not “protective custody,” which I thought was a phrase reserved for people.]

Owner of a van had apparent authority to consent to its search in a National Park. United States v. Stephens, 2009 U.S. App. LEXIS 18505 (4th Cir. August 17, 2009) (unpublished).*

postings later

Update: Seriously beat the plea offer, so going to trial was well worth it.

Seizure of a cellphone incident to arrest for a drug offense was reasonable. In the warrant for the defendant’s property, a money counting machine was properly seized in plain view. United States v. Reynolds, 2009 U.S. Dist. LEXIS 71057 (E.D. Tenn. June 4, 2009):

The United States Supreme Court has held that law enforcement may search a vehicle incident to a lawful arrest when “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120, at *20 (2009). In this case, defendant Smith was arrested for alleged possession of a controlled substance, marijuana. Given the circumstances surrounding defendant’s arrest, it was reasonable for the officers to believe that a search of defendant Smith’s vehicle would produce evidence related to that crime, and therefore the officers were justified in conducting a warrantless search of defendant Smith’s vehicle as an incident to his arrest. It was during this search incident to arrest that the officers found the five cell phones at issue. Given the volume of drugs found, coupled with the fact that the drugs were shipped via Federal Express to a hotel for pickup, the Court finds that it was reasonable for the officers to believe that the cell phones might contain evidence of drug trafficking, and therefore the phones were properly seized during the warrantless search incident to arrest. See Ajan v. United States, No. 2:02-CR-71, 2009 U.S. Dist. LEXIS 43575, at *25-26 (E.D. Tenn. May 20, 2009) (citing United States v. Finley, 477 F.3d 250 (5th Cir. 2007)) (authorizing the seizure of a cell phone incident to a drug related arrest).

. . .

As to the final category, there is no question that the warrant does not specifically authorize the seizure of money counting machines. However, the government argues that the money counting machines, described as being similar to the machines used by banks to count large sums of cash, were properly seized under the plain view doctrine as evidence of money laundering.

“The plain view doctrine allows a warrantless seizure of items if: (1) the officer is lawfully on the premises; (2) the discovery is inadvertent; and (3) the incriminating nature of the items is immediately apparent.” United States v. Blakeney, 942 F.2d 1001, 1028 (6th Cir. 1991). In this circumstance, all three factors were satisfied. The officers were lawfully on the premises executing the warrants at issue; there is no evidence that the officers expected to find money counting machines during the execution of the warrant; and neither is there any evidence that the officers obtained the warrants in question as a pretext for seizing the money counting machine. The linkage between the money counting machines and the charges of money laundering was immediately apparent to the officers executing the warrant. Accordingly, although the money counting machines fell outside the scope of the warrant, they were properly seized under the plain view doctrine.

Defendant’s consent to seizure of his computer excused the government’s delay in getting around to search the hard drive for child pornography, distinguishing United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009), posted here. United States v. Murinko, 2009 U.S. Dist. LEXIS 71196 (E.D. Wash. August 12, 2009).

Defense counsel’s choice of strategies for pursuing a suppression motion was not unreasonable. United States v. Ramos-Gonzales, 2009 U.S. Dist. LEXIS 70835 (E.D. La. August 5, 2009).*

Somebody who spent 20 minutes in a hotel room and did not have a key did not have standing to challenge its search as a guest. United States v. Arrington, 296 Fed. Appx. 646 (10th Cir. 2008)* (unpublished).

Knock-and-talk led to probable cause and exigent circumstances. United States v. Smalls, 617 F. Supp. 2d 1240 (S.D. Fla. 2008)*:

Based upon the analysis set forth below, the undersigned concludes that the Defendant voluntarily consented to open his door in response to the police knocking on the door; that once he opened the door the police had probable cause to arrest him and to believe that there was contraband inside the apartment; that exigent circumstances arose after the police presence at the Defendant’s front door was known, and these circumstances justified the warrantless entry into the Defendant’s apartment to effectuate his arrest and seize the evidence in plain view; and, the police were justified in conducting a protective sweep of the entire apartment incident to his arrest, since all areas of the apartment adjoined the area where he was arrested.

Warrant for search of the home was not limited, and search of a dictionary safe was permissible because the objects being sought could have been secreted there. United States v. Santiago, 2008 U.S. Dist. LEXIS 77960 (E.D. Pa. October 3, 2008).* Also, “[t]he failure to anticipate the presence of other contraband … is not a legal defect and does not render the search unreasonable under the Fourth Amendment.” Sostre v. County of Suffolk, 2008 U.S. Dist. LEXIS 77849 (E.D. N.Y. September 11, 2008).*

That driver may have been nervous because he was being tailgated by a police officer was not a defense to moving out of the lane and he was validly subjected to a stop. United States v. Bravo-Ortega, 621 F. Supp. 2d 1159 (D. Utah 2008).* See also United States v. Rocha, 2008 U.S. Dist. LEXIS 77973 (D. Kan. October 2, 2008) (weaving justified stop of defendant’s vehicle, even though he might have been swerving because he was followed.)

Reasonable suspicion is all that is required for a stop, and the officer had it. Hill v. Crete, 2008 U.S. Dist. LEXIS 78265 (N.D. Ill. October 6, 2008).*

Fabio Arcila, Jr., The Framers’ Search Power: the Misunderstood Statutory History of Suspicion & Probable Cause, 50 B.C. L. Rev 363 (2009)

Achal Oza, Note, Amend the ECPA: Fourth Amendment Protection Erodes as E-mails Get Dusty, 88 B.U.L. Rev. 1043 (2008)

Although I could only find one online:

Paul Ham, Warrantless Search and Seizure of E-mail and Methods of Panoptical Prophylaxis, 2008 B.C. Intell. Prop. & Tech. F. 90801 (2009)

Christian M Halliburton, How Privacy Killed Katz: a Tale of Cognitive Freedom and the Property of Personhood as Fourth Amendment Norm, 42 Akron L. Rev. 803 (2009)

Robert Sprague & Corey Ciocchetti, Preserving Identities: Protecting Personal Identifying Information Through Enhanced Privacy Policies and Laws, 19 Alb. L.J. Sci. & Tech. 91 (2009)

Kevin Robert Glandon, Note: Bright Lines on the Road: the Fourth Amendment, the Automatic Companion Rule, the “Automatic Container” Rule, and a New Rule for Drug- or Firearm-related Traffic Stop Companion Searches Incident to Lawful Arrest, 46 Am. Crim. L. Rev. 1267 (2009)

Carrie Leonetti, Independent and Adequate: Maryland’s State Exclusionary Rule for Illegally Obtained Evidence, 38 U. Balt. L. Rev. 231 (2009).

Exigent circumstances for a warrantless entry in a kilo heroin case was present from the presence of weapons and a possible unknown escape route[!]. United States v. Mendoza, 2009 U.S. Dist. LEXIS 68718 (S.D. N.Y. August 6, 2009):

Analysis of the balance of the Second Circuit’s illustrative guideposts for determining whether exigent circumstances justify warrantless entry supports the lawfulness of the agent’s entry into the home in pursuit of Mendoza. First, the Second Circuit has found that suspected sale of large quantities of drugs is a “serious” offense — and the transaction alleged here was to be for nearly a kilogram of heroin. See Gordlis, 982 F.2d at 69; MacDonald, 916 F.2d at 770. Second, although the agents testified that they observed no weapons in the course of the operation that led to Mendoza’s arrest, Tr. 34, Agent Crowe testified that in his experience it was typical for narcotics traffickers to keep weapons in a stash house. Tr. 58. Just as “narcotics agents are entitled to use their knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic,” United States v. Manning, 448 F.3d 992, 998-99 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 995 (1971), so too is it proper to afford some weight to a reasonable fear, based on years of experience, that there might be weapons present in a home the agents had probable cause to believe was a stash house for narcotics. Consequently, this second factor cuts somewhat in favor of exigent circumstances.

Under the fourth factor, the agents clearly had “strong reason to believe that the suspect [was] in the premises being entered,” MacDonald, 916 F.2d at 769-70, because they not only observed Mendoza return to the home but also directly observed him through the glass of the front door. With respect to the fifth guidepost factor, there was arguably some “likelihood that the suspect [would] escape if not swiftly apprehended,” id., although the number of agents involved in the operation suggests that they could have relatively easily surrounded the home to prevent an escape, and they in fact did so. Nevertheless, the agents who made the initial entry to the home “did not know whether there was a rear door” and “[t]he possibility of an unknown exit also had to be considered.” Miles, 889 F.2d at 383. Finally, although the agents’ entry was anything but peaceful, the agents did attempt a peaceful entry by knocking and announcing their presence. Though far from dispositive, this counts for something. See MacDonald, 916 F.2d at 770 (“[T]he agents acted in accordance with the law, and first attempted to effect a peaceful entry by knocking and announcing themselves.”)

Under the totality of circumstances, even a minor use of force could be unreasonable in this case, so summary judgment for the defendants is denied. Johnson v. Wild Acres Lakes Prop. & Homeowners Ass’n, 2009 U.S. Dist. LEXIS 68641 (M.D. Pa. August 6, 2009).*

Police came to defendant’s apartment after being called about an alleged rape there where the victim said that he had an AK-47 in the apartment. The police responded in force, beat on the door, and demanded entry. Defendant called 911 scared that the police would come in and shoot him. The 911 operator and the police at the door kept demanding entry so he let them in, and the gun was found. The entry was warrantless and without exigent circumstances. United States v. Henderson, 2009 U.S. Dist. LEXIS 65918 (W.D. Okla. July 29, 2009):

Based on the facts established at the hearing and the totality of the circumstances, the court concludes that while Mr. Henderson did consent to the search of his apartment, his consent was not voluntary within the meaning of Schneckloth. A number of factors, no one of which is determinative by itself, contribute to that conclusion. Defendant’s contact with the officers occurred in the middle of the night and in a private location where, apart from the investigating officers, he was by himself. The defendant was resistant to any entry into his apartment by the police and eventually agreed to it only after repeated requests or instructions to do so from both the investigating officers and the 911 operator. He had been told someone would be back to forcibly enter his house if he did not speak with officers. He was highly agitated and fearful for his safety, in addition to being confronted with what he (and eventually the officer) viewed as a false charge of rape. He was approached by officers with guns drawn and, perhaps more importantly, was handcuffed throughout the encounter after the entry by the police. These factors played out against the backdrop of a defendant who suffered from mental illness, was only recently released from mental health custody, and who appears to have been suffering from paranoid delusions during this particular encounter. In these circumstances, the government has not carried its burden to show that defendant’s consent to search was voluntary and freely given.

Reasonable suspicion developed from defendant’s nervousness, stammering, failure to make eye contact, an expired rental agreement, and being way off course. United States v. Masterson, 2009 U.S. Dist. LEXIS 65941 (D. Vt. July 29, 2009).*

Affidavit for SW for an outdoor grow operation gave PC to search the house by inference. United States v. Hays, 2009 U.S. Dist. LEXIS 64977 (E.D. Ky. June 24, 2009):

The affidavit places at least fifty marijuana plants on the property itself, with most of those plants appearing in “close proximity” to the residential shed and a vehicle registered to Defendant. While the affidavit (unhelpfully) does not quantify the precise meaning of “near” or “close proximity,” the affidavit inferentially depicts an integrated tract with landscaping and mowing that extends to the residence. Further, the reference to “close proximity” and triangular points including the garden, the truck, and the residential shed itself fairly place the garden marijuana in the immediate area of the alleged home.

Further, the marijuana expressly appeared on the defined and targeted property, and the gravel road with the locked gate was the only reasonable access to the property. As such, a natural, suspicious link exists between access to the property’s buildings and access to the property’s marijuana plants. To get to the property, anyone fairly would reach the property only through the same locked gate. The locked nature of the gate indicates that one person controls the property–including an alleged residence and vehicle associated with the purported occupant. See United States v. Lynch, No. 08-0060 SI, 2009 U.S. Dist. LEXIS 14347, 2009 WL 358266, at *2 (N.D. Cal. Feb. 10, 2009) (gated entrance indicative of control). Additionally, the manicured nature of the property means that someone actively managed the buildings (one of which apparently is a dwelling) and grounds during the period of marijuana cultivation close to the residential building and behind the barn.

The affidavit’s reference to the marijuana as more mature than would be expected does create a fair inference that the plants were grown indoors and transplanted. The presence of buildings (at least one of which had electricity) at this site raises a fair suspicion that the buildings would reveal evidence of cultivation. Someone cultivated the fifty+ plants, and the only ingress involved use of the locked gate. The buildings would not necessarily have cultivation-related evidence, but a reasonable basis existed for searching the property, structures included, because of the marijuana on the property.

Corporation raided to seize undocumented workers does not have full Fourth Amendment rights because it is not a “person,” and it lacks standing to challenge the seizure of the individuals. The corporation only has the power to attack general warrants. United States v. Agriprocessors, Inc., 2009 U.S. Dist. LEXIS 65165 (N.D. Iowa July 28, 2009):

Agriprocessors does not explain why the court should count Agriprocessors among “the people”; in other words, Agriprocessors does not offer the court a good reason to construe the Fourth Amendment to afford Agriprocessors full-blown Fourth Amendment rights. It is contrary to the precedent of the United States Supreme Court, which has made clear over the past 100 years that corporations do not enjoy the same right against unreasonable searches and seizures under the Fourth Amendment as natural persons enjoy. See, e.g., G.M. Leasing Corp. v. United States, 429 U.S. 338, 97 S. Ct. 619, 629, 50 L. Ed. 2d 530 (1977) (emphasizing that, while corporations certainly have “some Fourth Amendment rights,” “[t]he Court … has recognized that a business, by its special nature and voluntary existence, may open itself to intrusions that would not be permissible in a purely private context.”); United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 94 L. Ed. 401, 46 F.T.C. 1436 (1950) (“[C]orporations can claim no equality with individuals in the enjoyment of a right to privacy.”). A court might fairly read the Supreme Court’s relevant precedent as endowing corporate entities with only a right to attack general warrants, which the Framers abhorred, or with a basic due process right against clearly abusive government searches and seizures. See First Nat’l Bank v. Bellotti, 435 U.S. 765, 778 n.14, 98 S. Ct. 1407, 55 L. Ed. 2d 707; see, e.g., Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92, 40 S. Ct. 182, 64 L. Ed. 319, T.D. 2984, 17 Ohio L. Rep. 514 (1920); Hale v. Henkel, 201 U.S. 43, 75-76, 26 S. Ct. 370, 50 L. Ed. 652 (1906).

On NYTimes.com within the last 45 minutes: Report Says Wiretaps Got Too Little Legal Review on the Bush Administration’s warrantless wiretaps:

The Bush administration had defended the wiretapping program, one of the government’s most highly classified operations to have been disclosed in recent years, as a vital intelligence-gathering tool that gave intelligence officials the ability to respond more quickly to possible terrorist threats.

But the independent auditors, reviewing the program at the request of Congress, found that other intelligence tools used in assessing threats provided more timely information and that the value of the program was unclear.

The report said that while the program obtained information that “had value in some counterterrorism investigations, it generally played a limited role in the F.B.I.’s overall counterterrorism efforts.”

Defendant was asked for consent to search his car, and he said “That’d be fine if you have a key.” The defendant did not have a key, and he said that his girlfriend had the key, but she was not around. The officer found a key on the ground and searched the car. The defendant’s statement was consent, not a denial of consent. United States v. Washington, 319 Fed. Appx. 781 (11th Cir. 2009) (unpublished).*

It was reasonable for the search warrant for child pornography to include computer media where the officers had reason to believe that defendant used the internet to access the child porn. Here, a nosy cabinet installer found child porn in defendant’s filing cabinet and put it back but told the police. He described it as coming from the internet because of computer markings on the page of the printout. Also, under the Fourth Amendment, state law issues are essentially irrelevant. United States v. Brobst, 558 F.3d 982 (9th Cir. 2009).*

The lengthy inquiry of defendant’s alienage required reasonable suspicion. “Although the court agrees that the episode at the trailer began as a consensual encounter–a legitimate “knock and talk”–the continued detention of the defendants past the point at which they had produced apparently valid forms of identification, answered the officer’s questions, and denied permission to enter or search the trailer, was an investigative detention that required a reasonable, articulable suspicion of wrongdoing.” United States v. Villa-Gonzalez, 2009 U.S. Dist. LEXIS 20787 (D. Neb. March 16, 2009).*

Fist bump in a high crime area known for drug dealing where three cars arrived together was reasonable suspicion. State v. Mendoza, 2009 Ohio 1182, 2009 Ohio App. LEXIS 993 (10th Dist. March 17, 2009) (“fist bump”: “typical–you can conceal heroin, crack cocaine, anything in the palm of your hand. Real quick drop it off. Pick up your money same hand and you’re out.”).

The fact that the state supreme court reversed and suppressed plaintiff’s conviction did not mean that he would prevail on his claim. At the time of the search the law was not clear, and the officer was entitled to qualified immunity. Battle v. Webb, 298 Fed. Appx. 882 (11th Cir. 2008) (unpublished).

Officer’s smelling marijuana and seeing defendant concealing something (that turned out to be a handgun) justified a search of the car. United States v. Hamilton, 299 Fed. Appx. 878 (11th Cir. 2008) (unpublished).*

Loud car stereo justified stop under city ordinance, and a dog sniff during the incidents of writing a ticket was permissible. Pillow v. City of Lawrenceburg, 319 Fed. Appx. 347 (6th Cir. 2008) (unpublished).*

other postings late

A new report out by the Cardozo Immigration Justice Clinic on ICE immigration home raids: Constitution on Ice: A Report on Immigration Home Raid Operations.

The executive summary:

During the last two years of the Bush Administration, the U.S. Immigration and Customs Enforcement agency (ICE) vastly expanded its use of home raid operations as a method to locate and apprehend individuals suspected of civil immigration law violations. These home raids generally involve teams of heavily armed ICE agents making predawn tactical entries into homes, purportedly to apprehend some high priority target believed to be residing therein. ICE has admitted that these are warrantless raids and, therefore, that any entries into homes require the informed consent of residents. However, frequent accounts in the media and in legal filings have told a similar story of constitutional violations occurring during ICE home raids — a story that includes ICE agents breaking into homes and seizing all occupants without legal basis.

This report is the first public effort to compile and analyze the available evidence regarding the prevalence of constitutional violations occurring during ICE home raids. Through two Freedom of Information Act lawsuits, the authors of this report obtained significant samples of ICE arrest records from home raid operations in New York and New Jersey. Analysis of these records, together with other publicly available documents, reveals an established pattern of misconduct by ICE agents in the New York and New Jersey Field Offices. Further, the evidence suggests that such pattern may be a widespread national phenomenon reaching beyond these local offices. The pattern of misconduct involves:

• ICE agents illegally entering homes without legal authority – for example, physically pushing or breaking their way into private residences.

• ICE agents illegally seizing non-target individuals during home raid operations – for example, seizing innocent people in their bedrooms without any basis.

• ICE agents illegally searching homes without legal authority – for example, breaking down locked doors inside homes.

• ICE agents illegally seizing individuals based solely on racial or ethnic appearance or on limited English proficiency.

The report analyzes the variety of factors that have contributed to this pattern of ICE misconduct including: 2006 changes in ICE performance expectations; the inability of suppression motions or civil lawsuits to serve as a meaningful deterrent to ICE misconduct; and serious management and oversight failures by ICE supervisors. In order to correct course and to improve the ability of ICE to carry out its mission, we propose several policy recommendations aimed at: setting appropriate limits on the use of home raids; revising ICE’s warrant & consent practices; improving supervision and training of ICE home raid teams; minimizing harm to local community policing efforts; minimizing the intrusion to non-targets encountered during ICE home raids; and improving accountability for ICE agents and supervisors involved in illegal home raids. Our key recommendations include, among others:

• ICE should use home raids as a tactic of last resort, and then, only to make criminal arrests or civil arrests for targets who pose a real risk to national security or who have violent criminal records.

• ICE should obtain judicial warrants in advance of any home raid.

• ICE should require a high level supervisor to be on site for any home raid.

• ICE should videotape home raids.

• ICE should issue clear guidance that the sole objective of a home raid is to apprehend the target — agents should not generally question non-targets encountered about matters other than the location of the target.

• The Department of Homeland Security’s (DHS) Office of the Inspector General (OIG) should undertake an investigation of the pattern of misconduct established in this report to better assess the national scope of the problem.

• DHS and/or the Department of Justice should enact regulations disallowing the use of evidence in immigration removal proceedings when such evidence has been obtained through violation of the Constitution.