Defendant was stopped by a game warden and got out of his truck and went back to the officer. The officer told him to get back in the truck. Instead, he locked it. He resisted the officer who was going to arrest him for driving on a revoked license. He was wrestled to the ground, handcuffed, and put into the police car. The passenger compartment of his truck was searched by the game warden, and it was valid as a search incident. State v. Dearborn, 2008 WI App 131, 313 Wis. 2d 767, 758 N.W.2d 463 (App. 2008):

P46 We conclude our decision in Littlejohn, 2008 WI App 45, 747 N.W.2d 712 [2008], is controlling and resolves this issue against Dearborn. As in this case, in Littlejohn the police searched the passenger compartment of the defendant’s vehicle after he was arrested outside the vehicle, handcuffed, and secured in a police vehicle at the scene. Id., PP2, 12. Littlejohn’s car was locked, id., P15, as was Dearborn’s. Littlejohn made the same argument that Dearborn makes–that the search-incident-to-arrest exception did not apply because he was locked in the back of a police car and his vehicle therefore was not within his “immediate control.” Id., P6. In addition, Littlejohn argued, as does Dearborn, that Soehle v. State, 60 Wis. 2d 72, 208 N.W.2d 341 (1973), holds a search of a vehicle locked at the time of arrest is an invalid search incident to an arrest. Id., P15.

P47 We rejected both arguments in Littlejohn. We stated that, under State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986), and subsequent case law interpreting Fry, “the government is not required to show in each case that the area searched was actually accessible to the arrestee at the time of the search”; Littlejohn, 2008 WI App 45, 747 N.W.2d 712, P11, rather, the inquiry, as stated in Fry was “whether a vehicle’s passenger compartment was within ‘the area into which an arrestee might reach.'” Id., P18 (citations omitted). We concluded that Fry had decided this standard was met on facts that were not meaningfully distinguishable from Littlejohn’s situation. Id., PP18, 19. We also concluded that Fry had overruled Soehle to the extent the latter case could be read to hold that a search of a vehicle locked at the time of arrest was an invalid search incident to an arrest. Id., P15.

P48 Because Littlejohn, 2008 WI App 45, 747 N.W.2d 712, is controlling, we conclude the search of the passenger compartment of Dearborn’s car did not violate his right to be free from unreasonable searches. Therefore he was not entitled to suppression of the evidence seized in that search.

Comment: I can’t buy search incident under these circumstances since the passenger compartment was clearly locked and inaccessible since he was handcuffed and locked up. However, what about the inevitable last refuge of the police: inventory?

Patdown was justified by reasonable suspicion, but opening pill bottle in pocket was not justified by plain feel because it was obvious it was not a weapon. State v. Dickerson, 2008 Ohio 6544, 179 Ohio App. 3d 754, 903 N.E.2d 697 (2d Dist. 2008):

[*P22] Applying that standard, the Supreme Court pointed out that “once the officer determines from his sense of touch that an object is not a weapon, the pat-down frisk must stop. The officer, having satisfied himself or herself that the suspect has no weapon, is not justified in employing Terry as a pretext for a search for contraband.” Evans, 67 Ohio St.3d at 414.

[*P23] Officer Blackburn’s testimony indicates that upon patting down Dickerson’s clothing, he felt something hard in his coat pocket and that he did not know what it was. He could not testify that it felt like a weapon or that it was contraband; his testimony was that “[i]t could have been anything.” He also testified that he could not determine that the pill bottle that he retrieved from this pocket contained contraband until he opened it. And, at the point of opening it, it was apparent that it was not a weapon.

Private security guard was not a state actor when he approached defendant in apartment complex to question what he was doing there. Even if he was, the conduct hardly rose to the level of a seizure. State v. Branch, 2008 Ohio 6721, 2008 Ohio App. LEXIS 5594 (2d Dist. December 19, 2008).*

“[A]n outstanding arrest warrant deprives its subject of the reasonable expectation of privacy the Fourth Amendment protects, the exclusionary rule does not apply to a search and seizure of the subject that would otherwise be illegal because of a Terry violation. State v. Walker-Stokes, 2008 Ohio 6552, 180 Ohio App. 3d 36 (2d Dist. December 12, 2008) (overruling two cases).

Arrest warrant issued after judge reviewed “the file” which included sufficient facts to find probable cause was valid. State v. Wenke, 276 Neb. 901, 758 N.W.2d 405 (2008).*

CNN posted an article yesterday afternoon about an effort to stop body scans at airports being virtual strip searches. Airport security bares all, or does it?:

Privacy advocates plan to call on the U.S. Department of Homeland Security to suspend use of “whole-body imaging,” the airport security technology that critics say performs “a virtual strip search” and produces “naked” pictures of passengers, CNN has learned.

The national campaign, which will gather signatures from organizations and relevant professionals, is set to launch this week with the hope that it will go “viral,” said Lillie Coney, associate director of the Electronic Privacy Information Center, which plans to lead the charge.

“People need to know what’s happening, with no sugar-coating and no spinning,” said Coney, who is also coordinator of the Privacy Coalition, a conglomerate of 42 member organizations. She expects other groups to sign on in the push for the technology’s suspension until privacy safeguards are in place.

I was traveling through security with a friend from a lawyers meeting, and one of the lines had one of these machines, and we talked about it up to the boarding pass check, and the TSA guy said I was wrong about what it would show.

My last post on backscatter technology was here in February.

The state failed to prove that defendant’s search was validly based on the parole search exception, and then failed to put on any proof that the good faith exception would apply [aside from the fact the good faith exception is almost universally based on a search warrant without PC]. People v. Pearl, 172 Cal. App. 4th 1280, 92 Cal. Rptr. 3d 85 (4th Dist. 2009):

The prosecution here neither asserted the good faith exception nor met its burden of proving its applicability. In the trial court, the prosecutor did not invoke or argue any exception to the exclusionary rule. On the day of the suppression hearing, the prosecutor filed written opposition to Pearl’s motion to suppress, arguing (1) Pearl was on parole at the time of the search, (2) the parole search validly extended to common areas of the house in which Pearl rented a room, and (3) Spira consented to the searches of her home. After the close of evidence at the suppression hearing, the trial court asked the prosecutor directly, “[w]e’re not talking about good faith reliance on [a] search warrant, are we?” The prosecutor replied, “I would ask to do some research into that. That pops in[to] my mind, good faith exception but we don’t have to go that far.” (Italics added.)

The prosecution did not present evidence directed to the good faith exception. Crager never testified to the substance of any conversations with the “parole department.” Pearl’s parole agent did not testify. The prosecution offered Pearl’s CDC record to prove he was in fact on parole on December 13, 2004, not to prove Crager or anyone else reasonably relied on that record in determining Pearl was subject to a parole search.

Defendant validly confessed to a crime, and then consented as a part of the confession. The suppression order was reversed. State v. Rooks, 674 S.E.2d 738 (N.C. App. 2009).*

SW for “documents showing ownership, control and access [that] constitutes evidence of a crime and the identity of the person(s) participating in a crime” permitted seizure of rap lyrics written in a notebook. State v. Bryant, 674 S.E.2d 753 (N.C. App. 2009).*

Officer’s entry into defendant’s open garage to inspect a vehicle for a hit and run was reasonable and based on exigent circumstances. He knocked but the defendant did not answer before he walked in. Commenwealth v. Fickes, 2009 PA Super 64, 2009 Pa. Super. LEXIS 78 (April 8, 2009).

Protective sweep under Buie was justified by belief there were two felons present. Plain view of gun was valid. State v. Hicks, 3 So. 3d 539 (La. App. 5th Cir. 2008).*

Record supports the trial court’s conclusion defendant consented to the search of his car. People v. Visich, 57 A.D.3d 804, 870 N.Y.S.2d 376 (2d Dept. 2008).*

Officers watched defendant purchase psuedo three times and then he committed a traffic violation. PC for a search of the car was present by the plain view of the psuedo he saw on the dashboard. Vafaiyan v. State, 279 S.W.3d 374 (Tex. App. – Ft. Worth 2008).*

M.D. Fla. suppresses a knock-and-talk where the police entered defendant’s fenced off property to knock at the door and seek consent in violation of his expectation of privacy shown under Dunn. Under the circumstances of this case, the defendant’s consent was not voluntary after the knock-and-talk. United States v. Hambelton, 2009 U.S. Dist. LEXIS 25139 (N.D. Fla. March 18, 2009):

Taking all of the factors into consideration, the Court finds that the officers entered Defendant’s curtilage when they walked up to his front door and stationed themselves at the sides of his house. Defendant did not extend an implicit invitation for visitors to enter the area. He expressed his intent to keep visitors out through warning signs and by locking the gate. Courts have recognized that “‘[o]fficers are allowed to knock on a residence’s door or otherwise approach the residence seeking to speak to the inhabitants just as any private citizen may.'” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006) (citation omitted). In this case, however, Defendant took pains to exclude visitors by erecting a fence, locking his gate, putting up signs, and enclosing the area with natural vegetation. The officers did not approach the house in a manner that a private citizen could approach it given the reasonable expectation of privacy that Defendant maintained in the area. See Madruga v. County of Riverside, 431 F.Supp.2d 1049, 1057 (C.D. Cal. 2005) (explaining why the “knock and talk” exception does not apply to homes made inaccessible to visitors). The officers’ entry into the curtilage violated Defendant’s reasonable expectation of privacy under the Fourth Amendment.

Texas Court of Criminal Appeals disagrees with Keehn v. State, 223 S.W.3d 53 (Tex. App. — Ft. Worth 2007)* (posted here) that a plain view and seizure from a closed car of an anhydrous ammonia tank was valid. Officers could not enter the car under that rationale. They could, however, under the automobile exception, and it mattered not that the car was in defendant’s driveway. Keehn v. State, 279 S.W.3d 330 (Tex. Crim. App. 2009):

Carney‘s reference to “a place not regularly used for residential purposes” in no way stands as a per se bar on the application of the automobile exception to a vehicle parked in the driveway of a private residence. Indeed, our reading of the quoted text is reinforced by the Court’s observation that it did not have to decide whether the automobile exception applies to “a motor vehicle that is situated in a way or place that objectively indicates that it is being used as a residence.” Furthermore, numerous other courts have adopted our reading of Carney when confronted with the same argument that Keehn advances here.

Defendant waived any objection to the search of his person when he did not object to the evidence when it was offered at trial after the suppression motion was denied. Heiden v. State, 2009 Tex. App. LEXIS 2000 (Tex. App. — Austin March 25, 2009).*

Suppression hearing testimony contradicted the showing of probable cause in the search warrant affidavit. This was sufficient to defeat the state’s reliance on the good faith exception under Herring and Leon. Hayworth v. State, 904 N.E.2d 684 (Ind. App. 2009):

At issue in this case is the first exception, that is, a magistrate being misled by information in an affidavit. The United States Supreme Court clarified in Herring that to trigger the Fourth Amendment’s exclusionary rule, the “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” 129 S. Ct. at 702. “[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or in some circumstances recurring or systemic negligence.” Id. The pertinent analysis of deterrence and culpability is objective; it is not an inquiry into the subjective awareness of the officer. Id. at 703.

We conclude that Detective Southerland’s admissions at the suppression hearing amount to deliberate, reckless, or grossly negligent conduct. Police officers have a duty and obligation of full and fair disclosure of all material facts when applying for a warrant. See Jaggers, 687 N.E.2d at 185 (“In applying Leon, our cases have stressed the importance of accurately presenting all relevant information to the magistrate.”) (emphasis added); see also Dolliver v. State, 598 N.E.2d 525, 529 (Ind. 1992) (finding good faith exception did not apply where a detective “flagrantly misrepresented” the facts in obtaining a search warrant and therefore acted in “reckless disregard of the truth”). And when there is a material omission of fact, this amounts to deliberate, reckless, or grossly negligent conduct. Even the trial court said at the suppression hearing that Detective Southerland’s affidavit made it seem like the informant had personally observed all of these things. Because the State did not follow up with Detective Southerland at the suppression hearing, we do not know from this record what, if anything, the informant personally observed. And as Hayworth points out in her reply brief, the State makes no effort on appeal to explain, reconcile, or justify the discrepancies between Detective Southerland’s affidavit and what the informant actually told him.

In addition, we conclude that Detective Southerland’s conduct is sufficiently deliberate that exclusion of the evidence will meaningfully deter the misconduct and that it is sufficiently culpable that such deterrence is worth the price paid by our justice system. Although, as the Herring Court said, the principal cost is “letting guilty and possibly dangerous defendants go free,” 129 S. Ct. at 701, we find there is “appreciable” deterrence given the importance of a police officer’s full and fair disclosure of all material facts when applying for a warrant and the material omissions of fact here. Id. at 700.

Defendant was suspected of having driven his vehicle on a bike path after a citizen’s report. They found his car at his house and talked to him through the screen door, which he declined to open. They could smell alcohol. While he was likely under the influence, the entry to arrest without a warrant was unreasonable because there was no sufficient exigency to justify it, partly because his vehicle was disabled [which mitigates this ruling]. State v. Hinshaw, 205 P.3d 178 (Wash. App. April 16, 2009):

¶17 We disagree. The police here presented no evidence of a major crisis demanding immediate entry into Mr. Hinshaw’s home. The record shows that police had probable cause to believe Mr. Hinshaw had become intoxicated and had driven home where he remained. The reckless operation of the car and consequent threat to public safety had ended. There was no suggestion that Mr. Hinshaw was armed or dangerous. He posed no threat, imminent or otherwise, to the safety of the officers or the public. His car was essentially disabled and police had last seen him on a bicycle. He was not fleeing or seeking to escape. Finally, the circumstances here did not involve violence or threats of violence. His offense had not harmed anyone, he had merely damaged property.

¶18 Furthermore, police failed to make any showing that destruction of evidence was imminent, or that the arresting officer could not have obtained a warrant before the alcohol dissipated. The evidence offered by the State consisted solely of Officer Lopez’s testimony that, “Mr. Hinshaw admitted that he was drinking at a local establishment … I didn’t want to lose the alcohol evidence.” CP at 46. He offered no evidence about the length of time necessary to obtain a warrant or the time required to secure the evidence. In short, police made no showing that a delay of any length would have resulted in the imminent destruction of evidence. Without evidence of some real immediate and serious consequence resulting from a delay in obtaining a warrant, the State failed to carry its burden to prove exigency.

Officers’ split-second decision that led to a motorist’s death was sufficiently reasonable under the circumstances that they were entitled to qualified immunity. McCullough v. Antolini, 559 F.3d 1201 (11th Cir. 2009)*:

In short, the sheriff’s deputies used deadly force in a split-second situation where a suspect late at night refused to pull over, engaged in a high-speed chase, and then, after pulling over, repeatedly refused to show his hands or respond to officers, revved his engine, and then drove his truck toward the deputy standing nearby in a parking lot.

As in Pace, Robinson, and Long, McCullough used his vehicle in a dangerous and aggressive manner which provided the officers with probable cause to believe that McCullough, while driving his truck, posed a threat of serious physical harm or death to the officers, or other passersby, especially in light of the speed with which the incident unfolded. Specifically, McCullough’s initial attempts to evade police, his failure to heed police warning of the potential use of deadly force, his later attempt to drive a truck towards an officer on foot, and his still later apparent attempt to drive away from the officers toward the exit of the parking lot provided the officers with sufficient reason to believe the use of deadly force was necessary.

Thus, on the particular facts of this case, especially in light of the deference we afford the split-second police judgments in the field and our prior precedent in this difficult area, we are constrained to conclude that deputies Antolini and DeLeon had probable cause to believe that the suspect posed a direct threat of serious physical harm or death, gave an adequate warning under the circumstances, and had powerful reason to believe that the use of deadly force was necessary to prevent escape. Simply put, the force used against McCullough was not excessive under the Fourth Amendment and the officers were entitled to qualified immunity. Because we can discern no constitutional violation, we need not address whether the constitutional right at issue had been clearly established when the incident arose.

Defendant was the subject of an anonymous call to a drug hotline. Officers checked and saw that he was on probation, so they conducted a probation search of his house when his mother was there. The search was not harassing and was founded on fact. Hess v. State, 296 Ga. App. 300, 674 S.E.2d 362 (2009).*

Officers pulled up beside the defendants who were walking on the street and said “What’s up guys?” A baggie of crack fell between them. They were not seized by the inquiry. State v. Foster, 2009 Ohio 840, 2009 Ohio App. LEXIS 695 (9th Dist. February 25, 2009).*

An administrative subpoena was used to get defendant’s IP address as the recipient of child pornography. This gave probable cause. United States v. Sloan, 307 Fed. Appx. 88 (9th Cir. 2009)* (unpublished).

Officer had reasonable suspicion to detain the defendant for 20-25 minutes to get a drug dog to the scene. The dog’s alert gave PC. United States v. Johnson, 307 Fed. Appx. 372 (11th Cir. 2009)* (unpublished).

Officer watched two men separately enter a convenience store while talking on a cellphone. They stayed a brief time, and came out without buying anything. One defendant came back to the parking lot two minutes later. In the officer’s experience, this indicated a drug deal was going down, and this was reasonable suspicion. United States v. Morris, 305 Fed. Appx. 992 (4th Cir. 2009)* (unpublished).

SD discusses how Aguilar–Spinelli is no longer the law under Gates, and it finds in this case that corroboration of innocent details can establish the veracity of the informant’s tale. State v. Gilmore, 2009 SD 11, 2009 S.D. LEXIS 11 (February 25, 2009):

[*P24] In Raveydts, we borrowed language from Gates in identifying two elements crucial to the probable cause inquiry when an informant’s tip was involved. 2004 SD 134, P 11, 691 NW2d at 295. “First, an ‘explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [the informant’s] tip to greater weight than might otherwise be the case.'” Id. (quoting Gates, 462 US at 234, 103 SCt at 2330). “Second, the extent to which the tip is corroborated by the officer’s own investigation is important.” Id. P 12 (citing Gates, 462 US at 244, 103 SCt at 2335). Both of these elements are met here. As mentioned before, the tip was explicit, detailed, and witnessed firsthand. Therefore, any deficiency in the “veracity” prong is compensated by the strong firsthand knowledge of the CI. Secondly, there was sufficient corroboration of the information by law enforcement thereby ensuring its reliability. Therefore, under our deferential standard of review, Judge Neiles’s determination was appropriate.

While the search was without probable cause, the good faith exception saved it from suppression. United States v. Gainer, 600 F. Supp. 2d 1251 (M.D. Fla. 2009):

This Court’s determination that there was not probable cause justifying the warrant and search of the Anchor Road residence does not, however, end the inquiry. The question remains whether the Leon good faith exception to the exclusionary rule applies. If it does, the evidence should not be suppressed even though the warrant was issued without probable cause. Of the four situations in which the good faith exception does not apply, only two are relevant in this case–whether the magistrate wholly abandoned his detached and neutral role, and whether the warrant was based on an affidavit that was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

The first of these considerations requires little discussion. While it is this Court’s belief that few magistrates would have issued a warrant based on Officer Scammell’s affidavit, there is no evidence that the decision was the result of bias in favor of law enforcement as opposed to simply not viewing this request separately from the other two applications for warrants, both of which were based in part on observations of law enforcement officers. Moreover, by the time the magistrate signed the warrant, he knew Defendant sold cocaine at one location and lived at another. While the facts were not sufficient to constitute probable cause, it made sense that Defendant might have taken proceeds from cocaine sales to his home. There is no evidence supporting a conclusion that the magistrate wholly abandoned his neutral role.

The remaining and most difficult question in the good faith analysis is whether the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923. This question is answered in the negative. By the time the officers presented the Anchor Road affidavit to the magistrate, they had observed two controlled purchases of cocaine from Unit A. They also were convinced, based on what they had been told, that Defendant had been engaged in the sale of cocaine for a significant time. Based on their investigation, the officers believed that Defendant had a habit of leaving Unit A where he daily engaged in the sale of cocaine and returning to his Anchor Road residence. Having this information, it was not objectively unreasonable for the officers to believe that there existed a fair probability that the proceeds from illegal drug sales were located in Defendant’s residence.

The good faith exception to the exclusionary rule applies to the search of Defendant’s residence on Anchor Road, requiring that the Motion to Suppress the evidence found there be denied.

A neighborhood roadblock case in D.C. is before the D.C. Circuit. See D.C. Police Neighborhood Checkpoints Challenged on Appeal from May 8:

Lawyers for the city say the zones, which were used last summer, are designed to prevent and deter criminal activity. Police stop and question drivers, asking for identification and travel plans. Officers are instructed to get phone numbers in order to verify information provided by the driver or passengers. Police say a Neighborhood Safety Zone can be set up for 10 days in response to a spike in crime.

Critics of the program argue police do not have authority to stop drivers when there is no suspicion of illegal activity. “The irreparable harm is the deprivation of their fundamental constitutional rights,” Verheyden-Hilliard told today’s panel of Chief Judge David Sentelle and Judges Douglas Ginsburg and Judith Rogers.

Postings through Friday or even next weekend are iffy.

I’m off today to an ICC training session where I’m on the program for defense counsel training. I’m also on the ICC Disciplinary Appeals Board, it it meets Wednesday.

The last time I was there, I stayed at a hotel where the internet access cost was €30 a day ($44 then). I won’t pay it.

We’ll see.

Update: It is €15, so I paid for it. But, the cases come from Lexis in the morning central time, which would be afternoon here. Still, it will be hit or miss some days.

Drug dog success rate of 80% is probable cause. United States v. Bertram, 307 Fed. Appx. 214 (10th Cir. 2009)* (unpublished).

Officer had probable cause for stop based on speeding in a work zone, and reasonable suspicion for a further detention based on information from the DEA. United States v. Beltran-Aguilar, 2009 U.S. Dist. LEXIS 2566 (D. Kan. January 14, 2009):

Even though the activities of defendants and the Honda’s relationship to drug activity may have been ambiguous and susceptible of innocent explanation, officers may detain individuals to resolve the ambiguity. Illinois v. Wardlow, 528 U.S. 119, 126, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (Terry accepts risk that officers may stop innocent people); see United States v. Arvizu, 534 U.S. 266, 277, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002) (reasonable suspicion need not rule out possibility of innocent conduct); ….

Twenty minutes for a traffic stop was not unreasonable. “The traffic stop was not so dilatory that it became unlawful.” Defendant also invited the officer to search. United States v. Perez-Vasquez, 2009 U.S. App. LEXIS 716 (3d Cir. January 12, 2009)* (unpublished).

Defendant’s bare assertion district court erred in crediting testimony about consent was inadequate. United States v. Mitchell, 2009 U.S. App. LEXIS 685, 2009 FED App. 0024N (6th Cir. January 13, 2009)* (unpublished).

Whether a cellphone has a “volatile” phone number storage capacity for search incident is an unworkable standard because there is no way an officer would know. United States v. Murphy, 552 F.3d 405 (4th Cir. January 15, 2009):

Murphy argues that whether a cell phone may be searched without a warrant can be determined only upon the officers ascertaining the cell phone’s storage capacity. In so arguing, he concedes that a device with a small storage capacity may be searched without a warrant due to the volatile nature of the information stored, but that a search of a cell phone with a larger storage capacity would implicate a heightened expectation of privacy and thus would require a warrant to be issued before a search could be conducted.

Murphy’s argument is problematic for several reasons. First, Murphy has not provided the Court with any standard by which to determine what would constitute a “large” storage capacity as opposed to a “small” storage capacity, as he does not quantify these terms in any meaningful way. Second, Murphy has introduced no evidence that his cell phone had the requisite “large” storage capacity which he contends is subject to a heightened expectation of privacy. Third, even assuming that his cell phone does have a “large” storage capacity, his argument still fails because it is premised on the unwarranted assumption that information stored on a cell phone with a “large” storage capacity would be any less volatile than the information stored on a cell phone with a “small” storage capacity.

Finally, Murphy’s argument must be rejected because to require police officers to ascertain the storage capacity of a cell phone before conducting a search would simply be an unworkable and unreasonable rule. It is unlikely that police officers would have any way of knowing whether the text messages and other information stored on a cell phone will be preserved or be automatically deleted simply by looking at the cell phone. See Young, 278 Fed. Appx. at 245. Rather, it is very likely that in the time it takes for officers to ascertain a cell phone’s particular storage capacity, the information stored therein could be permanently lost. For these reasons, we reject Murphy’s argument that the government must ascertain a cell phone’s storage capacity in order to justify a warrantless search of that phone incident to arrest.

Defendant did not have a reasonable expectation of privacy from entry onto his enclosed porch by a law enforcement officer who was there to investigate a dog complaint and smelled marijuana. United States v. Wilson, 2009 U.S. Dist. LEXIS 2980 (N.D. Iowa January 14, 2009).*

There was no reasonable expectation of privacy in a common hallway of a fourplex where defendant was arrested. The defendant showed that he had a TV set sitting there, but that alone proved nothing. United States v. Martin, 2009 U.S. Dist. LEXIS 2994 (D. Kan. January 12, 2009).*

The officer stopped defendant, a Canadian citizen, for a traffic offense, and he developed reasonable suspicion from defendant’s unusual travel plans of driving to California and back from New York with a one day stay. After handing the papers back, the defendant was asked further questions and then consented to a search, which produced 119 kg of cocaine. United States v. LeBon, 307 Fed. Appx. 2 (7th Cir. 2009)* (unpublished).

Officers had information that defendant had received child porn, and they used a ruse that he was the victim of identity theft to get access to his computer. While they were looking at his computer with him there, the officers encountered a locked file, and he gave up the password. When a CP image was seen, he asked whether that was illegal to possess, and the officers said they weren’t looking for that, which was false. The motion to suppress was granted. United States v. Parson, 599 F. Supp. 2d 592 (W.D. Pa. 2009):

The government claims that the identity theft introduction is defensible in that it was literally truthful and accurate. The Court disagrees, and disapproves of this “literal truth” defense. Given the function and purpose of verbally expressed language, a communicative phrase such as that uttered by Agent Stitzel simply cannot be defined absent its context. In this matter, the phrase was uttered by an ICE agent on the doorstep of a poor and intimidated senior citizen. Yet the government somehow claims that the phrase was not misleading because it is literally true. In essence, the government argues “who knows, after all, whether Parson was a victim of identity theft–we all might be?” This venture into abstraction is inappropriate.

Rather, the Court finds that this language must be assessed in its context, including its speaker, the setting, and the listener. Agent Stitzel spoke the phrase for one purpose: to convey to Parson that he was a victim of identity theft. Agent Stitzel did not convey to Parson that it was only a remote possibility that he was a victim of identity theft. Imagine a conversation in front of a soda machine, wherein Officer A asks Officer B: “Hey, do you have an extra quarter?” Under the government’s reasoning, Officer B would interpret the phrase literally, respond “yes”, and walk off. However, the remainder of society, and this Court, if responding for Officer B, would intuit from shared norms and the circumstances of the situation that Officer A, despite the literal meaning of the words within his query, is in fact asking to borrow a quarter.

In short, this Court concludes that the language used by the agents on the doorstep was deceptive and deliberately misleading. Hence, the visit became problematic from a Fourth Amendment perspective the moment that the agents misled Parson into believing that he was a victim of identity theft. Parson invited the officers into his home as a direct consequence of the representation that he was a victim of a crime. This invitation to entry, then, was certainly not the voluntary act of someone knowingly agreeing to concede privacy interests.

. . .

c. The Agents’ Misrepresentations Violated Widely Shared Social Expectations

The agents’ lies and trickery in this matter violated widely shared social expectations. The Supreme Court instructed that in assessing consent for Fourth Amendment purposes, great significance should be given to “widely shared social expectations.” Georgia v. Randolph, 547 U.S. 103, 111, 126 S. Ct. 1515, 1521, 164 L. Ed. 2d 208, 220 (2006). Numerous cases establish that government misrepresentation as to the purpose of the visit, or the scope of the investigation violates widely shared social expectations.

Officers had information that defendants were selling marijuana to high schoolers. They came to the house and did a knock-and-talk and could smell burning marijuana, and that led to an admission that the occupants were just smoking marijuana inside. Officers could enter to secure the premises while a warrant was sought. They did a protective sweep on entry, but not a search until the warrant arrived. The situation was not manipulated by officers. United States v. Perez, 2009 U.S. Dist. LEXIS 15073 (D. Utah February 25, 2009):

The Court also concludes that entry was clearly supported by circumstances which were not abused or subject to manipulation. When Agents arrived at the residence they had no way of knowing that the encounter with Ms. Perez would proceed as it did. The odor of burnt marijuana and Ms. Perez’s admissions about marijuana having been smoked in the house minutes earlier along with the possibility that marijuana or a drug pipe might be found in the residence are not indicators that were subject to manipulation or abuse. The Court also agrees with the United States that Ms. Perez created the exigency by refusing to comply with Agent Tribe’s command to remain on the porch, retreating inside the house, and trying to close the door behind her, thus preventing Agent Tribe from monitoring her actions inside the house.

In sum, the Court is satisfied that the United States has met its burden of proof that the fear of evidence being imminently destroyed created an exigent circumstance justifying the warrantless entry into Defendant’s residence. Having reached that conclusion, the Court need not, and does not, address the alternative exigency theories of children safety or hot pursuit argued by the United States.

The magistrate here had a substantial basis for probable cause to believe that a gun would be found in defendant’s house based on defendant’s admissions, police observations and investigation, and a CI’s story that had a factual basis and basis of knowledge. United States v. Miller, 2009 U.S. Dist. LEXIS 15092 (E.D. Pa. February 24, 2009).*

Dog sniff during the normal course of a traffic stop is not unreasonable. The alert gave probable cause to search the entire vehicle. United States v. $175,722.77 in United States Currency, 307 Fed. Appx. 257 (11th Cir. 2007)* (unpublished):

The district court did not err in concluding that the length of the initial traffic stop was reasonable. Seven minutes is a reasonable amount of time to effectuate a traffic stop, and Payne was entitled to conduct a series of checks on Patino and his license. Further, the dog sniff did not unreasonably delay the traffic stop, nor was it an unreasonable search under the Fourth Amendment because the dog sniff occurred simultaneously with Payne’s check of Patino’s license.

Comment: Officers have finally figured out how to do it: run the dog around the car while waiting for the computer check to come back. Now, we know that the officer will tell the computer operator to “give me a couple of minutes” longer so the dog sniff will be within the period of the computer check. Once again, the officers have figured out how to take another right away, and the courts just play along.

Defendant was stopped at a driver’s license roadblock, and he had warrants for his arrest. A search incident to that arrest produced a typewriter which was used to convict defendant of mail fraud. United States v. Lee, 225 Fed. Appx. 132 (4th Cir. 2007)* (unpublished).*

Collateral estoppel bars plaintiff’s civil claim over his arrest. He litigated the same question to conclusion in state court. Kircher v. City of Ypsilanti, 2007 U.S. Dist. LEXIS 33565 (E.D. Mich. May 8, 2007).*

Under the undisputed facts, the defendant in a § 1983 case had probable cause to stop the plaintiff, so the plaintiff’s case fails. Graham v. County of Washtenaw, 2007 U.S. Dist. LEXIS 33568 (E.D. Mich. May 8, 2007).*

There was a factual dispute in whether defendants used excessive force, including Tasering the plaintiff, to get him into a cell, so summary judgment is denied. Because plaintiff was not a convict, the Fourth Amendment applied, not the Eighth Amendment. Pearson v. Byrd, 2007 U.S. Dist. LEXIS 33509 (M.D. Ala. May 7, 2007).*

In a probation search § 1983 case, the co-tenant refused consent and officers came in anyway. Randolph does not void the search because the probation agreement permitted the search, and consent was not an issue. Taylor actually lived elsewhere, but he spent a lot of time with his co-tenant, and she was aware he was on probation and had been searched in the past. Taylor v. Brontoli, 2007 U.S. Dist. LEXIS 33672 (N.D. N.Y. May 8, 2007). (Comment: This case seems almost like the plaintiff sought refuge in a place he could not be subjected to probation searches, but probation search agreements follow the probationer around. Third parties who take in probationers are subject to having their premises searched, too.)

There is no reasonable expectation of privacy in a cell phone’s location under a tracking order. United States v. Navas, 2009 U.S. Dist. LEXIS 37464 (S.D. N.Y. March 19, 2009):

Courts have followed Knotts in addressing cell site data and hold that a defendant has no legitimate expectation of privacy in such data. See Forest, 355 F.3d at 951 (“[C]ell-site data is simply a proxy for [defendant’s] visually observable location.”); see also In re Cell Site Location Application, 460 F. Supp. 2d at 462 (noting that the government could violate Karo by using cell site information to surveil a target in a private home that could not be observed from public spaces); In re the Matter of the Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 534 F. Supp. 2d 585, 613 (W.D. Pa. 2008) (“without a warrant based on probable cause the Government may use a tracking device to ascertain an individual’s location on a public highway but not in a private home ….”). Courts have also determined that an individual does not have a legitimate expectation of privacy in items that are not in the individual’s name, i.e., where the defendant is not the cell phone’s subscriber. Suarez-Blanca, 2008 WL 4200156, at *6-7; United States v. Skinner. No. 3:07-CR-100 (HBG), 2007 U.S. Dist. LEXIS 38128, 2007 WL 1556596, at *17 (E.D. Tenn. May 24, 2007).

Navas did not have a legitimate expectation of privacy in the cell phone. First, the cell phone was only utilized on public thoroughfares en route from California to New York; there is no indication that law enforcement ever surveilled Navas, or any of the Defendants, in a private residence. Second, Navas was not a subscriber to the phone. Finally, if Navas intended to keep the cell phone’s location private, he simply could have turned it off. See Aral-Estrada, 2006 WL 3197181, at *13. Accordingly, Navas did not have a reasonable expectation of privacy in the cell phone’s transmissions and his motion to suppress based on information obtained under the Cell Site Order is denied.

An Officer was working an interstate bus, and his and the other officers’ actions on the bus did not amount to a seizure, even though there were two “spotters” near the front door. United States v. Richards, 2009 U.S. Dist. LEXIS 37528 (D. Minn. April 17, 2009):

Defendant argued that because an officer was standing in the aisle, there were three other officers between him and the front of the bus, and because he had refused to permit a search of his luggage, he was effectively seized. Def. Mem., pp. 6-7. This reasoning has no merit. There is no testimony that any officer was stationed in the aisle during the interdiction in this case; rather, the testimony was that the officers moved in and out of the aisle as they questioned people, and deliberately did not stand in the aisle. See United States v. Angulo-Guerrero, 328 F.3d 449, 451 (8th Cir. 2003) (bus passengers not seized during interdiction where officer was moving down the aisle to make sure all passengers were questioned, and not to prevent them from leaving). Additionally, the fact that the two “spotters” were stationed in front of the bus did not render defendant seized. In Drayton, where a routine drug interdiction took place on a Greyhound bus under similar circumstances, officers dressed in plain clothes and carrying concealed weapons and visible badges boarded the bus; similar to this case, two officers went to the rear of the bus and one remained stationed in front to observe. 536 U.S. at 197. The Supreme Court found that the bus passengers were not effectively seized when the officers boarded the bus and began asking questions because the officers gave passengers no reason to believe they were required to answer the officers’ questions, and because “there was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.” Id. at 204.

(This is a situation rife with coercion. I just don’t get it.)