State of Arizona’s issuance of a seizure warrant for Western Union funds transfers based on a showing of statistical probability the funds were proceeds of human or drug smuggling based on a task force investigation was proper; it was issued with probable cause. The warrant was also not a general warrant. The court cautions that such warrants could be overbroad, but this is not one of them. The warrant was also prospective, but it was specific as to what would be in Western Union’s possession within the ten day time frame of the warrant. State v. Western Union Fin. Servs., 219 Ariz. 337, 533 Ariz. Adv. Rep. 7, 199 P.3d 592 (2008), vacated by, remanded by State v. W. Union Fin. Servs., 2009 Ariz. LEXIS 108 (Ariz. June 3, 2009):

P62 Like the affidavit in Marine Midland Bank, the affidavits and declarations supporting the Seizure Warrant were the result of a lengthy investigation and described a specific modus operandi of organizations involved in human smuggling and/or narcotics trafficking that linked the ECs to racketeering events occurring in Arizona. The level of detail presented by the State regarding this linkage sufficiently distinguished these circumstances from those “compiled from general behavior that a law enforcement agency deemed indicative of illegal conduct.” Marine Midland Bank, 11 F.3d at 1126. Based on the totality of circumstances gleaned from that investigation, we conclude probable cause supported issuance of the Seizure Warrant.

Search warrant in a money laundering case permitted the officers to look at documents involving businesses located on the premises not specifically named in the warrant. The affidavit and warrant contemplated that other businesses would be involved. “Since the warrant does not expressly name the third company involved in the scheme, the agents reasonably inferred that it was permissible to search the records for companies not expressly listed in the warrant, provided that these companies were connected to the alleged MBE fraud.” United States v. Catapano, 2008 U.S. Dist. LEXIS 70460 (E.D. N.Y. August 26, 2008).

Consenter who lived with defendant for a year with their infant daughter could consent to a search of the premises. Defendant was concerned that she might consent when he was in jail, but he didn’t do anything to revoke her authority since she was in control of the property. United States v. Ryerson, 545 F.3d 483 (7th Cir. 2008).*

District court’s finding of consent was supported by the evidence and affirmed. United States v. Fristoe, 315 Fed. Appx. 40 (10th Cir. 2008) (unpublished)*; United States v. Mendoza, 293 Fed. Appx. 290 (5th Cir. 2008).*

Defendant could not claim automatic standing to challenge the police questioning of his wife. State v. Shuffelen, 149 Wn. App. 1048, 208 P.3d 1167 (2009), ordered published June 8, 2009.*

The search warrant was quite broad, but there is no claim that the officers abused the breadth of the warrant to seize things that should not have been seized or that the search was conducted unreasonably. The warrant was also issued with probable cause, considering the great deference given warrants. United States v. Hale, 2009 U.S. Dist. LEXIS 55645 (S.D. Ohio January 27, 2009).*

Border search on entry into the Virgin Islands on a flight from Atlanta was proper. David v. Gov’t of the V.I., 2009 U.S. Dist. LEXIS 55593 (D. V.I. App. Div. June 25, 2009):

David has failed to present, and the Court is unaware of, any valid legal authority for the proposition that the border between the U.S. Virgin Islands to the mainland operates only one-way. On the contrary, a person who enters the U.S. Virgin Islands from the continental United States, like a person traveling in the opposite direction, is considered to have crossed a border within the meaning of the border search exception to the warrant requirement. See United States v. Chabot, 531 F. Supp. 1063, 1069 (D.V.I. 1982) (explaining that the U.S. Virgin Islands is a “customs zone” separate and apart from the United States, Puerto Rico, and other United States possessions, and thus the border search exception applies to persons entering St. Croix from Puerto Rico); see also United States v. Herbert, 886 F. Supp 524, 32 V.I. 308 (D.V.I. 1995) (applying the Third Circuit’s reasoning in Hyde to conclude that “sections 3 and 4 of the 1917 Organic Act of the Virgin Islands thus create a two-way ‘customs’ border between the Virgin Islands and the mainland”).

Because it is impractical to expect that searches can be conducted at the exact moment a person crosses a border, the border search “exception applies not only at the physical boundaries of the United States, but also at the ‘the functional equivalent’ of a border.” United States v. Whitted, 541 F.3d 480, 485 (3d Cir. 2008) (quoting Almeida-Sanchez, 413 U.S. at 272-73). An international airport, such as the Cyril E. King airport in St. Thomas, may be considered the functional equivalent of a border for Fourth Amendment purposes. See Almeida-Sanchez, 413 U.S. at 273 (acknowledging that “a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search”).

The search of David’s luggage occurred at the Cyril E. King airport in St. Thomas, shortly after David arrived on his flight from Atlanta, Georgia. Nothing in the record suggests that the search of David at the airport was highly intrusive or posed a serious threat to David’s dignity or privacy.

While defendant may not have had standing to challenge the search of the car she was driving, she certainly did in her own purse in the car. The search of the car was also unjustified under Gant. United States v. Oliva, 2009 U.S. Dist. LEXIS 57293 (S.D. Tex. July 1, 2009):

However, defendant’s lack of possessory interest in the car does not end the standing inquiry. The evidence defendant seeks to suppress–the marijuana–was found in her purse when officers searched the vehicle. The Supreme Court has held that a bus passenger has a legitimate expectation of privacy in his luggage. Bond v. United States, 529 U.S. 334, 336, 120 S. Ct. 1462, 146 L. Ed. 2d 365 (2000) (“Indeed, it is undisputed that petitioner possessed a privacy interest in his bag.”). Moreover, in Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999), the Court heard a challenge by a passenger in another person’s car to a search of her purse. Id. at 297-98. The Supreme Court concluded that “passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars,” implying that a passenger has a privacy interest in his property in a car separate from any interest in the vehicle itself. Id. at 303 (citations omitted); see also Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 2403, 168 L. Ed. 2d 132 (2007) (holding “that a passenger is seized as well and so may challenge the constitutionality of the stop”).

Additionally, the Fifth Circuit has explained that “[t]he owner of a suitcase located in another’s car may have a legitimate expectation of privacy with respect to the contents of his suitcase.” United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993) (citation omitted). In Buchner, the Fifth Circuit held that a defendant had standing to challenge the search of a vehicle in which his shoulder bag was found, although he did not own the vehicle and alleged no possessory interest therein. Id. Here, because the marijuana was discovered in defendant’s purse, and her ownership of that purse is undisputed, she has standing to challenge the search.

Defendant was locked in a police car, and the SI of the car was invalid:

In this case, during the suppression hearing, defense counsel asked Officer Stewart, “Was the search of the vehicle related to trying to find evidence of my client’s driving while intoxicated?” Officer Stewart answered, “Yes, sir yes to see if there was any open containers, anything that was suspect. We weren’t looking specifically for drugs. We were just making sure that there was no other contraband inside the vehicle.” This case is distinguishable from the facts presented in Gant where the defendant was arrested for a routine traffic violation. It would be reasonable for officers to search the vehicle for evidence of driving while intoxicated, including open or empty containers. The officer’s testimony establishes that the search sought evidence related to defendant’s arrest for driving while intoxicated.

K.S.A. 22-2501(c) which permits a search of a vehicle incident to an occupant’s or recent occupant’s arrest, even if the purpose of the search is not focused on uncovering evidence only of the crime of arrest, is facially unconstitutional under the Fourth Amendment and under Section 15 of the Kansas Constitution Bill of Rights under Gant. State v. Henning, 2009 Kan. LEXIS 192 (June 26, 2009).

The statute provides:

When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of

(a) Protecting the officer from attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of a crime.

Factually, this case is more similar to Gant than to Belton but, analytically, a factual comparison is unnecessary. There is no dispute that there was no warrant to search the car. A recognized exception to the Fourth Amendment’s warrant requirement must apply, see State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015 (2007); or the search was invalid and the evidence it uncovered appropriately suppressed by the district court judge. When a search is challenged, the State bears the burden of demonstrating that it was lawful. See State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006). The State’s only argument here is that the search of the car was a proper search incident to the arrest of Henning under K.S.A. 22-2501(c). (Zabriskie, although out of the car and standing near Henning during the search, had not yet been arrested herself.) Even more specifically, the State’s only argument, based as it must be on the testimony of Stevenson, is that the search depended upon the recently amended and newly effective language of K.S.A. 22-2501(c), which, as we have discussed above, considerably broadened its scope and exceeded the purposes allowed for such searches under the Chimel rule. As Stevenson noted, his training was up-to-the-minute and told him he was permitted to search the car not only for evidence of the crime of arrest but for evidence of another crime or crimes.

Gant expressly disapproved of this approach:

“To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would thus untether the rule from the justifications underlying the Chimel exception–a result clearly incompatible with our statement in Belton that it ‘in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.’ [Citation omitted.]… [T]he … Chimel rationale authorizes police to search only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U.S. at , 129 S. Ct. at 1719.

In view of Gant, we are compelled to strike down the current version of K.S.A. 22-2501(c) as facially unconstitutional under the Fourth Amendment and Section 15 of the Kansas Constitution Bill of Rights. The district court judge was right to be suspicious of the statute’s wording; its breadth cannot be reconciled with the narrowness of the search and seizure concept it was meant to codify, not automatically in a vehicle context nor in the context of any other area within immediate control of an arrestee.

USMJ does not accept that there was cause for defendant’s stop, either as a traffic offense or that there was reasonable suspicion for the stop. Then it was overly long. United States v. Alix, 2009 U.S. Dist. LEXIS 56955 (D. Mass. June 30, 2009)*:

Candidly, most of the opinions involving time and duration challenges to car stops sustain the actions of the police under various rationale, but there must be limits. One can pretend that the stop is justified as a traffic stop, so long as the car was actually violating the law. One can do what is necessary to learn about the occupants during the stop — questioning, asking for documentation — so long as one acts consistent with the limited information he has. What one cannot do is carry the stop beyond its rationale. Otherwise, more than the traffic stop rationale would be illusory; Fourth Amendment protection would be, as well.

Defense counsel was not ineffective for not filing a motion to suppress the search in his case. While his co-defendant suppressed the search in that case, defendant did not have standing to challenge that search. United States v. Rodriguez-Rivera, 2009 U.S. Dist. LEXIS 56769 (D. Kan. July 1, 2009).*

“Had Petitioner’s attorney contested the search of the sealed package containing the methamphetamine, the odds the search would have been invalidated on the facts alleged by Petitioner are essentially nil. Because an attorney is not duty-bound to file a motion that he knows to be without merit, …, it cannot be held that Petitioner’s attorney performed deficiently when he declined to challenge the search of the sealed package containing the methamphetamine.” Parra v. United States, 2009 U.S. Dist. LEXIS 56974 (E.D. Cal. June 15, 2009).*

Defendant’s stop and search were based on probable cause, so Gant is inapplicable. United States v. Bateman, 2009 U.S. Dist. LEXIS 56259 (E.D. Tex. June 25, 2009).*

[posted 7/8/9]

Involuntarily civilly committed persons retain rights as pretrial detainees. The test of reasonableness is stated in Bell v. Wolfish: “The test of reasonableness … requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Facility-wide visual body cavity searches for a smuggled cell phone was unreasonable. Serna v. Goodno, 567 F.3d 944 (8th Cir. 2009):

The scope of the overall response to the discovery of a cell-phone case, namely, the apparent rush to conduct facility-wide, visual body-cavity searches suggests a disproportionate reaction. Without belaboring the point, we note that a body cavity is not necessarily the first place reasonable persons normally would look for a cell phone. Serna does not argue, however, that a cell phone cannot be secreted in this fashion or that cell phones are substantially different than other objects smuggled by this means.

Also, the failure to apply any one of several apparent and less invasive search methods militates against a finding of reasonableness. The justifications the defendants offer are general in nature, not specific to Serna, and the administrators possessed information that would have allowed them to partition the population into groups viewed as more or less likely to be in possession of the cell phone (e.g., persons on the surveillance tapes or persons with a history of possessing contraband). In other words, although administrators had information in their possession that clearly directed individualized suspicion at certain patients rather than others, the administrators chose not to rely upon this information.

Further, there is no suggestion that staff conducted pat-down searches of any inmates prior to subjecting all inmates to visual body-cavity searches. Similarly, there is no suggestion that staff conducted room searches prior to conducting the visual body-cavity searches. By all accounts, it appears that they jumped straight to facility-wide, visual body-cavity searches after a review of the surveillance video failed to show which patient had dropped the cell-phone case.

Officers had reasonable suspicion that defendant was armed and dangerous when he came out of a house that the police followed armed robbers to and who had not come out. Defendant went in and came out carrying a laundry basket while the officers on the scene were awaiting the SWAT team. The situation was “highly charged” and defendant’s conduct was suspicious. United States v. Rouse, 2009 U.S. Dist. LEXIS 45774 (S.D. Ga. June 1, 2009).*

Defendant was shown to have consented to entry by buzzing the police into the building and to have consented to search of the apartment in writing. United States v. Awoussi, 2009 U.S. Dist. LEXIS 45680 (D.Neb. April 3, 2009).*

A dog sniff must be accomplished within the time of the normal license check or with reasonable suspicion to be valid. Here it was timely. The dog alert on the car, however, did not automatically translate into reason to pat down the driver. State v. Harris, 280 S.W.3d 832 (Tenn. Crim. App. 2008):

Probable cause to search the car at that point, however, did not in and of itself justify Officer Kilpatrick in searching the defendant’s person. We acknowledge that probable cause to search a vehicle generally authorizes the officer to search “passengers’ belongings found in the car that are capable of concealing the object of the search.” Wyoming v. Houghton, 526 U.S. 295, 307, 119 S. Ct. 1297, 1304 (1999). We know of no broad application of the vehicle search exception to the warrant requirement, however, that underwrites the search of a person who occupied the vehicle prior to the dog sniff. See United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222 (1948) (stating that probable cause to search a vehicle did not authorize a body search of a passenger); see also Houghton at 303, 119 S. Ct. at 1302 (mentioning Di Re with approval). In the present case, an extension of the vehicle search exception is especially inapt for two reasons. First, the defendant left the vehicle before the police acquired any indication that the vehicle contained material that they would be entitled to seize; the dog apparently did not react to any substances secluded on the defendant’s person. Second, a passenger in the vehicle occupied the seat near the door where the dog reacted. Under these circumstances, we fail to see how the officer’s ultimate, warrantless search of the defendant was justified by constitutional principles governing vehicle searches. See Houghton, at 302 n. 1, 119 S. Ct. at 1302, n. 1 (clarifying that the Di Re rule was predicated upon the situs of the search (“search of person” versus “search of property”) and that the role of a vehicle’s occupant (driver versus passenger) was immaterial).

A citizen informant is presumed reliable under Tennessee’s Aguilar-Spinelli standard. State v. Richards, 2008 Tenn. Crim. App. LEXIS 111 (February 6, 2008).*

Officers had probable cause for arresting plaintiff so his § 1983 case fails. Tensley v. City of Spokane, 267 Fed. Appx. 558 (9th Cir. 2008) (unpublished).*

Officer determined that there was a warrant out for the owner of a car he saw at a motel parking lot. He attempted to talk to the man leaning against it who matched the description of the owner, but the man walked into the motel lobby. The officer followed and determined that the man was not the owner, but reasonable suspicion developed anyway. The initial contact was not a seizure, but it ripened into one supported by reasonable suspicion. Manigault v. State, 881 N.E.2d 679 (Ind. App. 2008).*

Welfare check entry did not find the defendant, so continuing the search to look for defendant’s property in a tackle box was unreasonable. United States v. Tarburton, 610 F. Supp. 2d 268 (D. Del. 2009).

Officer lacked reasonable suspicion that a traffic offense had occurred, so the stop was invalid. Defendant was a passenger in a livery cab stopped by the police. United States v. Stewart, 2009 U.S. Dist. LEXIS 30462 (S.D. N.Y. April 1, 2009).*

Defendant’s stop for excessive noise, even if the noise ordinance was unconstitutional, was reasonable, and the exclusionary rule would not be applied to a stop based on a presumptively valid ordinance under the N.H. Constitution, and looking to Krull for guidance. State v. De La Cruz, 158 N.H. 564, 969 A.2d 413 (2009).

Since officers responding to a 911 call found defendant with a knife in hand and a body at his feet, any alleged search and seizure error in admission of some evidence from his person was harmless beyond a reasonable doubt. Ward v. State, 903 N.E.2d 946 (Ind. 2009).*

A private club corporation had standing to bring its own Fourth Amendment claim for a raid on the club. Defendants’ violent SWAT team raid on the club was not within the consent given to patrons to enter. It also was not a reasonable administrative search. Even as an administrative search, it cannot be a pretext for a criminal search. Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir. 2009):

Taking plaintiffs’ factual allegations as true, defendants did not enter Club Retro as would a typical patron; instead, they chose to project official authority by entering with weapons drawn in a S.W.A.T. team raid. They lacked any particularized suspicion or probable cause when they subsequently searched Club Retro, its attic, and the separate apartment and seized and searched all of its patrons and employees. Thus, defendants’ entry and search was not a reasonable acceptance of Club Retro’s invitation to the public. Any other conclusion would be an invitation for S.W.A.T. team raids by law enforcement officers of any business that is open to the public and would severely undermine the Fourth Amendment protections afforded to owners of commercial premises.

We are likewise not convinced by defendants’ second argument that they conducted a permissible administrative inspection. Although Louisiana statutes and Rapides Parish ordinances authorizing administrative inspections may have provided justification for an entry and inspection of Club Retro, no such law permits the scope and manner of the raid that plaintiffs allege occurred here. It is true that a commercial property owner’s Fourth Amendment rights are “particularly attenuated in commercial property employed in ‘closely regulated’ industries.” Burger, 482 U.S. at 700. The liquor industry has been a closely regulated industry. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970). The owner of a liquor establishment’s attenuated Fourth Amendment interests “may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.” Donovan, 452 U.S. at 599; Colonnade Catering Corp., 397 U.S. at 77; see also Delaware v. Prouse, 440 U.S. 648, 654-55 (1979); Bruce, 498 F.3d at 1248 (“Under certain limited circumstances, the Constitution permits warrantless administrative searches. It never permits unreasonable ones.”).

. . .

Even under a valid inspection regime, the administrative search cannot be pretextual. See Burger, 482 U.S. at 724 (“In the law of administrative searches, one principle emerges with unusual clarity and unanimous acceptance: the government may not use an administrative inspection scheme to search for criminal violations.”); see also, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000); Abel v. United States, 362 U.S. 217, 226 (1960); United States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993) (holding that an administrative inspection is a sham if it is “a pretext solely to gather evidence of criminal activity.” (emphasis added)). And, in all cases, the Fourth Amendment’s reasonableness requirement applies to government officials conducting administrative inspections of private commercial property. See Burger, 482 U.S. at 702; Donovan, 452 U.S. at 598.

. . .

During oral argument, defendants did not attempt to justify the scope and manner of the raids as reasonable, admitting instead that reasonableness is a fact-based question for which they must defer to the allegations of the amended complaint at this stage of the litigation. Administrative inspections, by their very nature, require more limited, less intrusive conduct than is alleged to have occurred here. We thus conclude that defendants’ S.W.A.T. team entries and extensive searches, as described in the amended complaint, unreasonably exceeded the scope of Louisiana and Rapides Parish administrative inspection laws. Any other conclusion would allow the administrative inspection exception to swallow the Fourth Amendment’s warrant requirement for searches of private property.

Our conclusion is supported by case law holding that an administrative inspection regime cannot support armed raids, broad searches, and extended detentions. In Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995), the Eleventh Circuit relied on existing Supreme Court precedent to reject qualified immunity as a defense for officers who conducted two raids of a nightclub that were comparable in relevant respects to the raid here. There, a S.W.A.T. team of thirty to forty officers, wearing ski masks, swarmed a club after receiving a signal from an undercover officer who had probable cause to arrest one patron for an illegal drug transaction. Id. at 993. The officers pointed their weapons at many of the club’s patrons and employees; prohibited the owners, employees, and patrons from moving or leaving; searched all individuals; refused patrons’ and employees’ requests to use the restrooms; searched the club, its cash registers, and door receipts; and maintained control of the premises and persons for between one and one and one-half hours. Id. The court concluded that the officers could point to “no authority that even suggests that the search and seizure of one suspect in a public place can be bootstrapped into probable cause for a broad-based search of the business establishment and its patrons.” Id. at 997 (citing Ybarra v. Illinois, 444 U.S. 85 (1979)).

“Under Department of Transportation regulations, employees in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries who either fail or refuse to take a drug test must successfully complete a drug treatment program and pass a series of urine tests as a condition of performing any safety-sensitive duties. To prevent cheating, the Department modified its regulations in 2008 to require that such tests be conducted under direct observation. Petitioners, a railway company and several transportation unions, challenge the revised regulation, arguing that it violates both the Administrative Procedure Act and the Fourth Amendment. For the reasons set forth in this opinion, we find the Department’s considered justification for its policy neither arbitrary nor capricious, and although we recognize the highly intrusive nature of direct observation testing, we conclude that the regulation complies with the Fourth Amendment.” BNSF Ry. Co. v. United States DOT, 566 F.3d 200 (D.C. Cir. 2009).

Turning on lights to effect a stop is not per se a seizure. It has to be based on the totality. Here, it was. “It is instructive that Gallegos candidly testified that, if Ceballos had attempted to drive away when Gallegos engaged his lights and pulled up behind him, Gallegos would have chased him down and arrested him.” The officer admitted that he only had a hunch for the stop. Defendant’s statements were the product of an unreasonable stop. United States v. Ceballos, 2008 U.S. Dist. LEXIS 108725 (D. N.M. December 24, 2008).* (Note: Whenever I had an indication from the prosecution that the stop was not a “seizure,” I just asked the officer on the stand: “If Mr. X had not stopped for you, what would you have done?” That always elicited a response that the defendant was not free to leave.)

Defendant’s driving pattern added to reasonable suspicion. He sped up to try to get away from the officer, but then slowed down so he could pass, all on a slippery road. There were five Hispanic men in a vehicle on an alien smuggling corridor. In addition, the men ignored the officer’s efforts to get their attention while driving next to them. United States v. Bautista-Silva, 567 F.3d 1266 (11th Cir. 2009).

Search of defendant’s vehicle was justified by consent or the automobile exception with probable cause. United States v. Loera, 2009 U.S. App. LEXIS 10278 (7th Cir. May 15, 2009).*

Under the automobile exception, officers did not need a warrant for seizure of a vehicle on probable cause. The fact they had time to get a warrant does not matter because a warrantless seizure was permissible. United States v. Bautista, 2009 U.S. Dist. LEXIS 40939 (W.D. Wash. April 29, 2009):

Finally, defendant contends that the seizure of the Volvo was improper because defendant had already been placed in custody and removed from the scene. Dkt. # 467 at 5. However, because there was probable cause to believe that the vehicle contained contraband,fn5 officers did not violate the Fourth Amendment in seizing the vehicle pending authorization to search it the following day. The mere fact that the officers could have obtained the warrant at an earlier time does not render the search or seizure invalid.

5. See Colorado v. Bannister, 449 U.S. 1, 3 (1980); Maryland v. Dyson, 527 U.S. 465, 466 (1999) (“[U]nder our established precedent, the ‘automobile exception’ has no separate exigency requirement.”)

A technical violation of the DEA’s inventory policy did not justify suppression. United States v. Adames, 304 Fed. Appx. 129 (3d Cir. 2008) (unpublished).*

Knock and talk led to consent. United States v. Lowry, 315 Fed. Appx. 214 (11th Cir. 2008)* (unpublished).

Officers had PC to believe that there was marijuana in one truck and the vehicle driving along with it was a conspirator. United States v. Rodriguez-Rodriguez, 550 F.3d 1223 (10th Cir. 2008).*

Search incident of defendant’s cell phone was reasonable: “The search of Wurie’s cell phone incident to his arrest was limited and reasonable. The officers, having seen the ‘my house’ notation on Wurie’s caller identification screen, reasonably believed that the stored phone number would lead them to the location of Wurie’s suspected drug stash.” The court, however, has doubts about the breadth of cellphone search incident and summarizes the law. United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009):

Neither the Supreme Court nor the First Circuit has directly considered the issue of whether a search incident to arrest may include a search of a cell phone’s contents, and if it does, how thorough the search might be. It seems indisputable that a person has a subjective expectation of privacy in the contents of his or her cell phone. See, e.g., United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007) (defendant had a sufficient privacy interest in his cell phone’s call records and text messages to challenge their search; the search of the stored text messages, however, was permissible as incident to a valid arrest). Decisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager technology) trend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones. See United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1277 (D. Kan. 2007) (the same exceptions apply to warrantless searches of cell phones under the Electronic Communications Privacy Act as any other warrantless search.); United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (agreeing with the Fifth Circuit that, “if a cell phone is lawfully seized, officers may also search any data electronically stored in the device.”); United States v. Valdez, 2008 WL 360548, at *3 (E.D. Wis. Feb. 8, 2008) (search of defendant’s phone was contemporaneous with his arrest and the officer was reasonably concerned that if he delayed, the information on the phone would be lost); United States v. Lottie, 2008 WL 150046, at *3 (N.D. Ind. Jan. 14, 2008) (warrantless search of a cell phone justified by exigent circumstances); United States v. Dennis, 2007 WL 3400500, at *7 (E.D. Ky. Nov. 13, 2007) (search of a cell phone incident to valid arrest no different from the search of any other type of evidence seized incident to arrest); United States v. Parada, 289 F. Supp. 2d 1291, 1304 (D. Kan. 2003) (phone seized incident to valid arrest; exigent circumstances justified accessing cell phone’s call records because continuing incoming calls would overwrite memory and destroy evidence); Cf. United States v. Morales-Ortiz, 376 F. Supp. 2d 1131 (D.N.M. 2004) (otherwise unlawful search of cell phone’s memory for names and numbers was justified under the inevitable discovery doctrine); United States v. James, 2008 WL 1925032 (E.D. Mo. April 29, 2008) (“[T]he automobile exception allows the search of the cell phone just as it allows a search of other closed containers found in vehicles.”).fn9 See also United States v. Reyes, 922 F. Supp. 818, 834 (S.D.N.Y. 1996) (warrantless searches of the stored memory of two pagers justified (i) as incident to arrest and (ii) by general consent); United States v. Chan, 830 F. Supp. 531, 535-536 (N.D. Cal. 1993) (warrantless search of pager memory comparable to a search of container contents; search was not so remote in time to invalidate it as a search incident to arrest); United States v. Diaz-Lizaraza, 981 F.2d 1216, 1223 (11th Cir. 1993) (agents reasonably activated defendant’s pager to confirm its number). Cf. United States v. Thomas, 114 F.3d 403, 404 n.2 (3d Cir. 1997) (noting in dicta that the retrieval of a phone number from a pager found on defendant was a valid search incident to arrest).

fn9 But see United States v. Wall, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22, 2008) (declining to follow Finley; exigent circumstances might justify a warrantless search of a cell phone; but declining to allow a search of arrestee’s cell phone incident to arrest; likening information stored in cell phone to a sealed letter); United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. Jan 20, 2009) (officers may be justified in searching the contents of a cell phone for evidence related to the crime of arrest, but “[w]hether a cell phone may be searched incident to an arrest to prevent the destruction or concealment of evidence of another crime is a different issue.”); United States v. Park, 2007 WL 1521573, at *9 (N.D. Cal. May 23, 2007) (based on “the quantity and quality of information that can be stored” a cell phone “should not be characterized as an element of an individual’s clothing or person [subject to search incident to arrest], but rather as a ‘possession within an arrestee’s immediate control that has fourth amendment protection at the station house.'”).

Defendant’s investigative stop in response to a radio call of a shooting was justified. His actions justified handcuffing, and he was constitutionally removed for a show up without it being an arrest. Commonwealth v. Phillips, 453 Mass. 203, 897 N.E.2d 31 (2008):

Phillips’s claims that the description of him given by Echols (a black male wearing a green jacket) was insufficient to justify his stop. He ignores the entire circumstances surrounding his stop, namely, the temporal proximity of the stop to the reported crime, his geographical proximity to the scene of the reported crime, his presence in a location that matched the reported direction in which the suspects had fled, and his bizarre conduct of crouching behind a tree in front of a house. Based on all these facts, as well as Phillips’s match to a general description of one of the suspects, the police possessed the requisite reasonable suspicion to justify Phillips’s stop. See Commonwealth v. Mercado, 422 Mass. 367, 371 (1996).

We reject Phillips’s contention that, by handcuffing him and placing him in a police wagon (until Echols made the identification), the detention constituted an arrest. A “justifiable threshold inquiry permits a limited restraint of the individuals involved as long as their detention is commensurate with the purpose of the stop.” Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U.S. 1187 (2006), quoting Commonwealth v. Torres, 424 Mass. 153, 162 (1997). “The degree of suspicion the police reasonably harbor must be proportional to the level of intrusiveness of the police conduct.” Commonwealth v. Feyenord, supra, quoting Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001). As conceded by Phillips, he acted “evasively” when stopped. The police reasonably could have viewed Phillips’s movement to the front porch of the house, and noncompliance with police commands, as an attempt to flee, and physically restrained him. The fact that they also handcuffed Phillips is not dispositive. See Commonwealth v. Williams, supra at 118, and cases cited. Because of the violent nature of the reported crimes, his attempt to flee, and the possible danger to the safety of the officers as well as the potential occupants of the house, the scope of Phillips’s detention was permissible. Id. at 118-119. He was handcuffed and placed in the patrol wagon for only ten minutes until Echols made his positive identification. The brief detention was made with the permissible purpose of completing the identification. We add that Phillips’s short detention in this manner, and for this purpose, was further justified when, minutes after he was handcuffed, the officers who had detained him learned that other officers had found two handguns nearby. The police did not exceed the scope of a lawful investigatory stop when they handcuffed and detained Phillips. See id. at 117-119.

Taking the console apart was within the scope of consent. No tools were needed, and it was within the scope of the consent granted. United States v. McCall, 2008 U.S. Dist. LEXIS 94411 (E.D. Tenn. November 18, 2008).*

The collective knowledge rule applies to reasonable suspicion, and the officer that actually stopped defendant likely didn’t, but they all did. United States v. Sierz, 2008 U.S. Dist. LEXIS 94079 (E.D. Mich. November 4, 2008).*

Defendant failed to show that the trial court’s conclusion that his consent was voluntary was clearly erroneous. The incongruities in the defendant’s own testimony was reason enough to show that the consent was voluntary. United States v. Horne, 313 Fed. Appx. 788 (6th Cir. 2008) (unpublished).*

Officers were justified in towing and inventorying vehicle when he was found in medical distress and nobody else could be found to come and get the vehicle. Weapons were in plain view and that justified the inventory. United States v. Fort, 313 Fed. Appx. 665 (4th Cir. 2009) (unpublished).*

Thirteen month old information that defendant likely downloaded child pornography was not too stale for a search warrant considering the enduring nature of CP on computers. United States v. Costello, 596 F. Supp. 2d 1060 (E.D. Mich. 2009).*

Defendant was stopped by blue lights and a request to come to the officers when they pulled up to his illegally parked car, which justified the stop. There was no specific evidence of coercion to find the consent invalid. United States v. Rigger, 2008 U.S. Dist. LEXIS 107579 (E.D. Tenn. October 17, 2008).*

Trash search was permissible, and it corroborated CI’s information for probable cause. United States v. Jackson, 2009 U.S. Dist. LEXIS 15694 (N.D. Ind. February 27, 2009).*

Reasonable suspicion is all that is required for a stop of a vehicle, not probable cause (surveying the circuits). Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008).

Officer’s looking into a burglarized storage building that had already been entered by the storage building operator’s employees was not an expansion of the private search. United States v. Richards, 301 Fed. Appx. 480 (6th Cir. 2008) (unpublished).*

Exclusionary rule does not apply to dentist board disciplinary proceedings. The dentist’s office was subjected to a search warrant for patient files. The exclusionary rule does not apply in non-criminal contexts. Kerr v. Pa. State Bd. of Dentistry, 599 Pa. 107, 960 A.2d 427 (2008).

Defendant was illegally detained and the officer had his ID and asked for consent. Since the stop was unlawful, the consent was invalid. State v. Strader, 224 Ore. App. 38, 197 P.3d 40 (2008):

Accordingly, the burden shifted to the state to establish that defendant’s consent was “independent of, or only tenuously related to” the unlawful stop. Hall, 339 Or at 35. As in Highley, the request for consent to search defendant occurred in close temporal proximity to the prior illegality. Moreover, the state has not established that any intervening circumstances or other factors might have mitigated the effect of the unlawful stop on defendant’s subsequent consent to search his person. Because the methamphetamine seized from defendant is the unattenuated product of exploitation of the unlawful stop, the motion to suppress should have been granted.

Officer was in a bar because patrons were refusing to leave. The officer saw apparent cocaine in plain view that the defendant was trying to hide. The plain view was valid. State v. Petty, 2008 Ohio 5962, 2008 Ohio App. LEXIS 5017 (5th Dist. November 17, 2008).*

A suppression hearing in the District of Massachusetts was fraught with a Brady/Kyles violation because of the officer’s inconsistent versions and admission to the prosecutor that he did not first see the defendant to identify him, yet the government’s pleading said he could. The AUSA was ordered to turn over her notes to the court for review, and they were given to the defense. Evaluating all the evidence now, the defendant loses on the motion, but the court orders review of a sanction against the AUSA. United States v. Jones, 609 F. Supp. 2d 113 (D. Mass. 2009) (opinion remarkably not on the court’s website):

On October 30, 2008, Jones’ counsel pointed out the many times reflected in Sullivan’s notes that Cooley had told her that he did not identify the man on the bicycle as Jones on Middleton Street. These prior statements directly contradicted the assertion made in the government’s Opposition to the motion to suppress, and in Cooley’s affidavit and repeated testimony. Cooley’s claim that he recognized Jones on Middleton Street was important to the government’s contention that there was reasonable suspicion to chase and stop Jones when he first pedaled away from the approaching officers.

Rule 116.2(A)(2) of the Local Rules of the United District Court for the District of Massachusetts defines exculpatory information as including “all information that is material and favorable to the accused because it tends to … [c]ast doubt on the admissibility of evidence that the government anticipates offering its case-in-chief …” It has been long and clearly established that exculpatory information includes information that is potentially useful in impeaching government witnesses, as well as information that directly tends to negate guilt. See Giglio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); United States v. Misla-Aldarondo, 478 F.3d 52, 63 (1st Cir. 2007). Both Sullivan and Herbert, who reviewed her notes before they were submitted to the court for in camera review, now admit that the government made an error in not, by October 10, 2008, disclosing the many, various statements inconsistent with Cooley’s affidavit and anticipated testimony that were memorialized in Sullivan’s notes. See Oct. 30, 2008 Tr. at 117, 119, 124-126.

This error had the potential both to injure the court’s ability to find the facts properly and to violate Jones’ right to due process. See Giglio, 405 U.S. at 154. That potential might have been realized if the government’s argument against holding an evidentiary hearing had been persuasive. However, the error was discovered in the course of the suppression hearing. Cooley was recalled to testify further and was thoroughly cross-examined based on the information revealed by Sullivan’s notes. See Oct. 30, 2008 Tr. at 29-41, 48-50. The government has since abandoned its reliance on the claim that justification to stop Jones existed because Cooley recognized him on Middleton Street and regarded his flight as suspiciously inconsistent with Jones’ conduct on prior occasions.

Therefore, this case is analogous to United States v. Osorio, which the First Circuit in 1991 characterized as involving “the recurring problem of belated government compliance with its duty to provide timely disclosure of exculpatory evidence,” caused in Osorio by “astounding negligence.” 929 F.2d 753, 755 (1991). “When dealing with cases of delayed disclosure ‘the critical inquiry is … whether the tardiness prevented defense counsel from employing the material to good effect.'” Id. at 757 (quoting United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990)). In the instant case, Jones eventually received the information to which he was constitutionally entitled and his counsel used it effectively to impeach Cooley’s testimony thoroughly. Therefore, Jones has not been prejudiced.

Nevertheless, the court is considering whether to impose sanctions on the government and/or the lead prosecutor, Sullivan. Generally, the supervisory powers of the court should not be used to redress harmless error. See United States v. Santana, 6 F.3d 1, 11 (1st Cir. 1993). However, “the use of supervisory power to dismiss an indictment, in the absence of injury to the defendant, may not be entirely a dead letter … [the Supreme Court has left] open the possibility that the goal of deterring future misconduct would justify using the supervisory power to redress conduct not injuring defendants if the conduct is plainly improper, indisputably outrageous, and not redressable through the utilization of less drastic disciplinary tools.” Id. (citation omitted).

The egregious failure of the government to disclose plainly material exculpatory evidence in this case extends a dismal history of intentional and inadvertent violations of the government’s duties to disclose in cases assigned to this court. However, this court has long shared the view expressed in United States v. Modica, 663 F.2d 1173, 1184 (2d Cir. 1981), that generally a defendant should not be rewarded, and the public should not be punished, for a prosecutor’s violation of constitutional and ethical duties that do not prejudice the defendant. See United States v. Kelly, 543 F. Supp. 1303, 1313 (D. Mass. 1982) (quoting Deputy United States Attorney Mark. L. Wolf). Rather, in some such cases a sanction should be imposed on the prosecutor personally. Id.

. . .

In any event, the court is considering imposing sanctions on Sullivan. The court assumes that her failure to disclose material, exculpatory information was not intentional, in part because Sullivan produced her notes for the court’s in camera inspection. Nevertheless, the violations were clear and inexcusable. If the error by an experienced prosecutor was inadvertent, it seems only to be explained by ignorance of or utter indifference to the constitutional duty she repeatedly claimed to have understood and obeyed. This court is consequently concerned that similar representations by other federal prosecutors are not reliable.

Accordingly, Sullivan and the United States Attorney are being ordered to file affidavits seeking to show cause why she should not be sanctioned in order to punish her misconduct and to attempt to send an important message to her colleagues. The court will also consider whether the imposition of additional sanctions on the government are necessary or appropriate.

See NLJ’s Federal judge considers sanctions for Boston U.S. attorney’s office.

Search of a school student’s underwear for over-the-counter painkiller was unreasonable because it lacked reasonable suspicion under T.L.O. Safford Unified School District #1 v. Redding, 08-479 (June 25, 2009). ScotusWiki here here; News: NYTimes here, WaPo here, LATimes here, Eastern Arizona Courier (Safford AZ) here.

The Syllabus:

After escorting 13-year-old Savana Redding from her middle school classroom to his office, Assistant Principal Wilson showed her a day planner containing knives and other contraband. She admitted owning the planner, but said that she had lent it to her friend Marissa and that the contraband was not hers. He then produced four prescription-strength, and one over-the-counter, pain relief pills, all of which are banned under school rules without advance permission. She denied knowledge of them, but Wilson said that he had a report that she was giving pills to fellow students. She denied it and agreed to let him search her belongings. He and Helen Romero, an administrative assistant, searched Savana’s backpack, finding nothing. Wilson then had Romero take Savana to the school nurse’s office to search her clothes for pills. After Romero and the nurse, Peggy Schwallier, had Savana remove her outer clothing, they told her to pull her bra out and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found. Savana’s mother filed suit against petitioner school district (Safford), Wilson, Romero, and Schwallier, alleging that the strip search violated Savana’s Fourth Amendment rights. Claiming qualified immunity, the individuals (hereinafter petitioners) moved for summary judgment. The District Court granted the motion, finding that there was no Fourth Amendment violation, and the en banc Ninth Circuit reversed. Following the protocol for evaluating qualified immunity claims, see Saucier v. Katz, 533 U. S. 194, 200, the court held that the strip search was unjustified under the Fourth Amendment test for searches of children by school officials set out in New Jersey v. T. L. O., 469 U. S. 325. It then applied the test for qualified immunity. Finding that Savana’s right was clearly established at the time of the search, it reversed the summary judgment as to Wilson, but affirmed as to Schwallier and Romero because they were not independent decisionmakers.

Held:

1. The search of Savana’s underwear violated the Fourth Amendment. Pp. 3–11.

(a) For school searches, “the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.” T. L. O., 469 U. S., at 341. Under the resulting reasonable suspicion standard, a school search “will be permissible … when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id., at 342. The required knowledge component of reasonable suspicion for a school administrator’s evidence search is that it raise a moderate chance of finding evidence of wrongdoing. Pp. 3–5.

(b) Wilson had sufficient suspicion to justify searching Savana’s backpack and outer clothing. A week earlier, a student, Jordan, had told the principal and Wilson that students were bringing drugs and weapons to school and that he had gotten sick from some pills. On the day of the search, Jordan gave Wilson a pill that he said came from Marissa. Learning that the pill was prescription strength, Wilson called Marissa out of class and was handed the day planner. Once in his office, Wilson, with Romero present, had Marissa turn out her pockets and open her wallet, producing, inter alia, an over-the-counter pill that Marissa claimed was Savana’s. She also denied knowing about the day planner’s contents. Wilson did not ask her when she received the pills from Savana or where Savana might be hiding them. After a search of Marissa’s underwear by Romero and Schwallier revealed no additional pills, Wilson called Savana into his office. He showed her the day planner and confirmed her relationship with Marissa. He knew that the girls had been identified as part of an unusually rowdy group at a school dance, during which alcohol and cigarettes were found in the girls’ bathroom. He had other reasons to connect them with this contraband, for Jordan had told the principal that before the dance, he had attended a party at Savana’s house where alcohol was served. Thus, Marissa’s statement that the pills came from Savana was sufficiently plausible to warrant suspicion that Savana was involved in pill distribution. A student who is reasonably suspected of giving out contraband pills is reasonably suspected of carrying them on her person and in her backpack. Looking into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing. Pp. 5–8.

(c) Because the suspected facts pointing to Savana did not indicate that the drugs presented a danger to students or were concealed in her underwear, Wilson did not have sufficient suspicion to warrant extending the search to the point of making Savana pull out her underwear. Romero and Schwallier said that they did not see anything when Savana pulled out her underwear, but a strip search and its Fourth Amendment consequences are not defined by who was looking and how much was seen. Savana’s actions in their presence necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. Savana’s subjective expectation of privacy is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation is indicated by the common reaction of other young people similarly searched, whose adolescent vulnerability intensifies the exposure’s patent intrusiveness. Its indignity does not outlaw the search, but it does implicate the rule that “the search [be]‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” T. L. O., supra, at 341. Here, the content of the suspicion failed to match the degree of intrusion. Because Wilson knew that the pills were common pain relievers, he must have known of their nature and limited threat and had no reason to suspect that large amounts were being passed around or that individual students had great quantities. Nor could he have suspected that Savana was hiding common painkillers in her underwear. When suspected facts must support the categorically extreme intrusiveness of a search down to an adolescent’s body, petitioners’ general belief that students hide contraband in their clothing falls short; a reasonable search that extensive calls for suspicion that it will succeed. Nondangerous school contraband does not conjure up the specter of stashes in intimate places, and there is no evidence of such behavior at the school; neither Jordan nor Marissa suggested that Savana was doing that, and the search of Marissa yielded nothing. Wilson also never determined when Marissa had received the pills from Savana; had it been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear. Pp. 8–11.

2. Although the strip search violated Savana’s Fourth Amendment rights, petitioners Wilson, Romero, and Schwallier are protected from liability by qualified immunity because “clearly established law [did] not show that the search violated the Fourth Amendment,” Pearson v. Callahan, 555 U. S. ___, ___. The intrusiveness of the strip search here cannot, under T. L. O., be seen as justifiably related to the circumstances, but lower court cases viewing school strip searches differently are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt about the clarity with which the right was previously stated. Pp. 11–13.

3. The issue of petitioner Safford’s liability under Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694, should be addressed on remand. P. 13.