The Eastern District of Michigan concludes that the Sixth Circuit will hold that 404(b) evidence is subject to exclusion. The court determines, however, that it was legally seized. United States v. Campbell, 2009 U.S. Dist. LEXIS 33331 (E.D. Mich. April 20, 2009). On the 404(b) applicability, the court surveys many cases:

The Court’s independent research has not revealed any cases addressing the issue in the context of Miranda violations. However, several courts have addressed the question of whether the Fourth Amendment’s exclusionary rule applies to 404(b) evidence and all of those courts agree that it does, at least under certain circumstances. See e.g., United States v. Hill, 60 F.3d 672 (10th Cir.), cert. denied, 516 U.S. 970, 116 S. Ct. 432, 133 L. Ed. 2d 347 (1995); United States v. Hill, 898 F. 2d 72 (7th Cir. 1990); United States v. Lopez-Martinez, 725 F.2d 471 (9th Cir.), 469 U.S. 837, 105 S. Ct. 134, 83 L. Ed. 2d 74, (1984); United States v. Renteria, 625 F.2d 1279 (5th Cir. 1980); United States v. Knight, 185 F. Supp. 2d 65 (D.D.C. 2002); United States v. Ozuna, 129 F. Supp. 2d 1345 (S.D. Fla. 2001), aff’d, 48 Fed. Appx. 739 (11th Cir. 2002); United States v. Perez, 562 F. Supp. 574 (D.N.J. 1982). It does not appear that the Sixth Circuit has addressed this issue.

. . .

Thus, the Tenth Circuit concluded that in cases involving constitutional challenges to Rule 404(b) evidence, courts should conduct a two-step inquiry: “admitting the evidence only if it both meets the technical requirements of Rule 404(b) and was not obtained in violation of the defendant’s Fourth Amendment rights.” [Hill]

. . .

From these authorities, it would appear that a case-by-case approach should be taken in determining whether the exclusionary rule applies to 404(b) evidence of a prior arrest. Unlike the Tenth Circuit Hill case, here the evidence is not being offered to prove an element of the crime. Nor is there any evidence of collusion or bad faith on the part of the officers. There is, in fact, no evidence to suggest that the officers involved in the August 1 stop had any involvement whatsoever with any of the undercover narcotics transactions involving Defendant and Agent Jury. On the other hand, the August 1 arrest here was not too remote in time — it occurred only four months prior to the December 6 drug deal — nor were the August 1 and December 6 crimes too distinct in character. Thus, the Court cannot say that the nexus would be too attenuated to warrant application of the exclusionary rule. Therefore, the Court will take the approach of the Seventh Circuit and determine whether the evidence of the prior arrest both meets the requisites of Rule 404(b) and passes constitutional muster. This Opinion and Order addresses the constitutional issues.

[I looked for a free link to this opinion, but PACER may be down for maintenance in this court today.]

On a military base, a soldier had been transferred for processing for release for medical reasons. Under standard military protocol, all electronic devices were searched for contraband, including pornography, and two images of child pornography were found on an MP3 player. The service member had no reasonable expectation of privacy in his MP3 player on a military base. United States v. Rendon, 2009 U.S. Dist. LEXIS 33557 (E.D. Va. April 21, 2009):

Applying this standard here, the Court believes that military society would not recognize a legitimate expectation of privacy in the contents of a portable electronic device brought by a service-member onto a military base, which is examined for contraband during routine in-processing procedures. First, because of the unique demands of military life, soldiers on military bases have diminished privacy expectations. Henson, 27 Fed. Cl. at 593. This is particularly true when a soldier is entering a military base. The Court of Military Appeals has observed that an entry gate at a base is the functional equivalent of a border for Fourth Amendment purposes. See United States v. Stringer, 37 M.J. 120, 126 (C.M.A. 1993). In some ways, the inspection of a soldier’s possessions when he arrives on a base is not unlike a border search. The Fourth Circuit has observed that “extensive searches at the border are permitted, even if the same search elsewhere would not be.” United States v. Ickes, 393 F.3d 501, 502 (4th Cir. 2005). “‘The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.”‘ Id. at 505 (quoting United States v. Flores-Montano, 124 S. Ct. 1582, 1585 (2004)). Similarly, the military has an interest in preventing the entry of contraband material onto bases and into barracks. At entry points to military installations, more intrusive inspection procedures are warranted because the base command must be able to control its borders and prevent contraband from being imported. See Stringer, 37 M.J. at 126. For this to be effective, the military must be able to inspect items that might contain contraband before soldiers enter the barracks.

Given this legal backdrop, from an objective standpoint, a soldier cannot reasonably expect that his personal items will be shielded from examination incident to his arrival at a military base. …

Officers made no attempt to corroborate informant’s information about the defendant, and this made the patdown unreasonable. United States v. Singleton, 2008 U.S. Dist. LEXIS 32822 (W.D. N.Y. April 21, 2008):

While I am not prepared to state categorically that the absence of any information as to a reliable informant’s basis of knowledge, where it is coupled with the absence of meaningful corroboration, dooms any effort to demonstrate reasonable suspicion, I am not prepared to find that this is the unusual case. My research has not disclosed any cases determining that reasonable suspicion existed where the allegations of illegality were so conclusory in nature and where so little was known about the basis of knowledge and so little done to corroborate the information. I do not lightly or easily reach my conclusion that reasonable suspicion was lacking, and I acknowledge that the facts of this case present no reason to doubt the honesty of the officers or the informant. That said, a simple inquiry by the officers as to the informant’s basis for believing that Singleton was dealing drugs and possessed a gun would have revealed whether the information deserved credence, disregard or further investigation. The fact that the informant provided reliable information on multiple occasions in the past does not justify dispensing with that brief inquiry, in my judgment.

Update: USDJ rejected this in United States v. Singleton, 2009 U.S. Dist. LEXIS 33377 (W.D. N.Y. April 21, 2009), posted April 24, 2009.

In a civil case over the propriety of issuance of a search warrant, the plaintiff’s failure to include the affidavit for the warrant in the summary judgment papers was virtually fatal to the claim because there was nothing on which the court could conclude the warrant was not issued with probable cause. By all accounts of the remainder, however, the officers had qualified immunity because the search would have been valid under the good faith exception. Lojas v. Washington, 2008 U.S. Dist. LEXIS 32940 (E.D. Wash. April 22, 2008).*

Plaintiff’s handcuffing during arrest for alleged sex crimes was reasonable, and he admittedly never complained about the handcuffs being too tight or hurting his shoulder. Fifield v. Barrancotta, 545 F. Supp. 2d 307 (W.D. N.Y. 2008):

In light of the severity of Fifield’s crimes, his prior violent assault of a police officer, his known history of maintaining a cache of weapons in his home, and his expressed desire not to accompany the officers to the police station, I find that the defendants’ de minimis use of force — specifically, the placing of Fifield’s arms behind his back, applying handcuffs and administering a routine pat-down search — was objectively reasonable based upon the undisputed facts.

The use of ultraviolet photography on defendant’s hands that revealed a he had been sprayed with something during an alleged assault on a police officer was not a search. Williams v. State, 3 So. 3d 285 (Ala. Crim. App. 2008).

Defendant’s request for an officer to retrieve a film cannister from his pocket after arrest impliedly included permission to open it. Also, the failure to object to his opening it supported consent [a proposition I’ve never agreed with]. King v. State, 2008 Ala. Crim. App. LEXIS 66 (April 4, 2008):

At the suppression hearing Deputy Wood testified that he asked King for permission to retrieve the unidentified object from his pocket to determine what it was and that the appellant consented. During the suppression hearing, defense counsel argued that Deputy Wood had permission to retrieve the canister, but not to investigate what it was.

. .

There was no testimony indicating that King objected when Officer Wood opened the film canister or that King revoked his consent at any time.

The circuit court, when denying the motion to suppress, stated that it was reasonable for Deputy Wood to believe that the consent to retrieve the canister also encompassed the consent to open it. We agree with the circuit court that a reasonable person would have understood that retrieving the object, the black film canister, and finding out what it was, would of necessity, include opening the canister. Therefore, we hold that Deputy Wood’s search did not exceed the scope of King’s consent, and the circuit court correctly denied King’s motion to suppress.

Comment: This case is just wrong. There is no legal way I can see for the officer’s being able to open it.

The search warrant had a typographical error in the address of the place to be searched, but the right place was searched. The good faith exception applies to save the search warrant. United States v. Harris, 2009 U.S. Dist. LEXIS 20580 (S.D. Tex. March 16, 2009):

Under the circumstances of this case, the Court concludes that the good faith exception to the exclusionary rule shall apply. The facts in the instant case are analogous to those in Gordon, where the officer-affiant who mistakenly identified the premises accompanied the executing officers on the search and pointed out the proper location. In Gordon, the Fifth Circuit relied on the Eleventh Circuit’s decision in United States v. Burke, 784 F.2d 1090 (11th Cir. 1986), to uphold the validity of a warrant even though it contained an incorrect address because, inter alia, the affiant accompanied the executing officers on the search and was able to point out the proper location. Gordon, 901 F.2d at 50 (citing Burke, 784 F.2d at 1093).

Subsequently, in United States v. Smith, 899 F.2d 1210 (5th Cir. 1993), the Fifth Circuit upheld the search of apartment 15-D where the search warrant specified apartment 15-C based upon incorrect information provided by the CI. Before obtaining the search warrant, the officer-affiant took the CI to the general location of the apartment building, and the CI pointed out the defendant’s apartment. The CI identified the apartment as 15-C, but the officer-affiant was unable to verify the apartment number with absolute certainty. Nevertheless, the officer-affiant obtained a search warrant and led the search team to the apartment the CI pointed out to him. The Fifth Circuit found that, because the affiant and the executing officer were the same person, “there was no possibility the wrong premises would be searched.” Id. at 1210 (quoting Gordon, 901 F.2d at 50). Additionally, the affiant had an objectively reasonable belief that the warrant had been properly issued and comported with the Fourth Amendment. Id. (citing Leon, 468 U.S. at 920-22).

Defense counsel was not ineffective for not pursuing a suppression motion because the CI was a citizen informant subject to a lower standard of scrutiny and there was probable cause. And, even if not a citizen informant, the PC was still sufficient, and defendant could not prevail. Malone v. State, 2009 Tenn. Crim. App. LEXIS 175 (March 11, 2009).*

The initial traffic stop was only six minutes long, and the second round of questions was by consent. Latta v. State, 2009 WY 35, 202 P.3d 1069 (2009).*

Nexus of defendant’s campsite to a grow site was shown by the movement of vehicles. “This case is therefore not one of speculative inferences piled upon inferences, as Rodrigue would have us believe. Rather, this is a case where the affidavit recited facts establishing a clear and substantial connection between the illegal activity and the place searched; whatever inferences were required to find probable cause, they were reasonable.” United States v. Rodrigue, 560 F.3d 29 (1st Cir. 2009).*

Controlled buy by the CI within 24 hours was sufficient to show PC. United States v. Johnson, 2009 U.S. Dist. LEXIS 20163 (S.D. Tex. March 12, 2009).*

Defendant’s motion to suppress his statement from an in home interrogation that was a police dominated atmosphere because they came in with guns drawn to search for a laptop computer under a search warrant. United States v. Dierking, 2009 U.S. Dist. LEXIS 20083 (S.D. Cal. March 9, 2009).*

Defendant consented to a search when officers encountered him in midday, parked next to him, and asked to talk to him. United States v. Dawson, (4th Cir. 2008), quoting United States v. Weaver, 282 F.3d 302, 309-10 (4th Cir. 2002)* (unpublished):

[g]enerally speaking, a “seizure” warranting protection of the Fourth Amendment occurs when, in view of the totality of the circumstances surrounding the “stop,” a reasonable person would not feel free to leave or otherwise terminate the encounter. Because the test is an objective one, its proper application is a question of law. Circumstances where the citizen would feel free to go, but stays and has a dialogue with the officer, are considered consensual, and therefore do not implicate the Fourth Amendment. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. In applying the totality of the circumstances test, courts look to numerous factors including the time, place and purpose of the encounter, the words used by the officer, the officer’s tone of voice and general demeanor, the officer’s statements to others present during the encounter, the threatening presence of several officers, the potential display of a weapon by an officer, and the physical touching by the police of the citizen.

Drug dog sniff was not found to be a search under the state constitution because, although the state constitution on searches and seizures can be interpreted differently than the Fourth Amendment, there was no development of the issue to show why in this case. State v. Harris, 372 Ark. 492, 277 S.W.3d 568 (2008).*

Comment: Arkansas has diverted from the Fourth Amendment in a couple of areas, but the fact a state has as to one issue does not mean that it will as to another. A litigant has to show why and how it is justified. Merely citing to it does nothing. This is the general rule, which is actually articulated far better in other jurisdictions: See, e.g., Commonwealth v. Bond, 693 A.2d 220, 225 ¶ 30 (Pa. Super. 1997):

Generally, in each case implicating a provision of the Pennsylvania Constitution, litigants are required to brief and analyze at least the following four factors: (1) text of the Pennsylvania constitutional provision; (2) history of the provision, including Pennsylvania case law; (3) related case law from other states; and, (4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 895 (1991).

Babiarz v. Town of Grafton, 155 N.H. 757, 930 A.2d 395, 399 (2007):

Since the defendant has neither specified any portion of the Federal Constitution that he contends has been violated, nor offered a fully developed legal argument citing federal constitutional authority in support of his position, we decline to analyze his assertions under the Federal Constitution. See State v. Chick, 141 N.H. 503, 504, 688 A.2d 553 (1996) (passing reference to constitutional claim renders argument waived). The plaintiff’s state constitutional argument is likewise undeveloped, and therefore we refrain from addressing it. See In the Matter of Thayer and Thayer, 146 N.H. 342, 347, 777 A.2d 845 (2001); Keenan v. Fearon, 130 N.H. 494, 499, 543 A.2d 1379 (1988) (“off-hand invocations” of constitutional rights supported by neither argument nor authority warrant no extended consideration).

In re Brianna B., 66 Conn.App. 695, 785 A.2d 1189, 1191 n.2 (2001):

The petitioner claims that the court’s actions violate article first, § 5, of the constitution of Connecticut. The respondent cites to State v. Linares, 232 Conn. 345, 363-87, 655 A.2d 737 (1995), for the proposition that the state constitution “provides greater protection of freedom of speech and of the press than the federal constitution.” That statement with nothing more does not constitute an independent analysis of the state constitutional claim. See id., at 379, 655 A.2d 737 (setting forth proper considerations provided in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), for claimed violation under state constitution). We therefore deem abandoned the claim under the state constitution and restrict our review to the claimed violation under the federal constitution.

No state has perhaps better analyzed independent state constitutional grounds than Oregon. See, e.g., State v. Flores, 280 Or. 273, 570 P.2d 965 (1977), a case where the majority did not diverge from Fourth Amendment precedent in one area:

The New Federalism: Toward a Principled Interpretation of the State Constitution, 29 Stan. L. Rev. 297, 318-19 (1977), suggests four criteria that state courts should consider in engaging in an independent interpretation of their own state constitutions. They are: (1) the similarity of the state and federal provisions; (2) relevant state precedents; (3) unique local conditions; and (4) the position taken by the United States Supreme Court. To these considerations we would add a fifth the need for a uniform standard in the area of law under discussion. State v. Florance, 270 Or. 169, 183, 527 P.2d 1202 (1974).

Later, Oregon went to historical references. State v. Dixson, 87 Or. App. 1, 740 P.2d 1224, 1226-27 (1987):

The decisive issue is not, as the trial court apparently thought, one of federal law. Whether defendant’s land is constitutionally protected depends, in the first instance, not on United States Supreme Court cases interpreting the Fourth Amendment, but on the basic principles underlying the Oregon Constitution. We derive our analysis from them. See State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983). While those principles may be similar to those underlying the Fourth Amendment, we need not join the federal retreat from the constitutional requirements.

. . .

We believe it obvious that the constitution protects property in order to protect something more-one’s personalty or individuality-from official control. It does so by adapting traditional trespass law to create areas where officials may not go. Article I, section 9, and the Fourth Amendment are the direct product of the experience that Americans had during the pre-revolutionary period with uncontrolled executive power. The colonists (and their supporters in England) looked to safeguards against arbitrary searches and seizures as one of the bulwarks of the liberty for which they fought the Revolution. See Jensen, The Founding of a Nation: A History of the American Revolution, 1763-1776, 155-58, 258, 377-78 (1968); Cooley, Constitutional Limitations, 300-303 n. 1 (1st ed. 1868).

The tie between liberty and the right to exclude others from one’s property remained basic in American thinking after the Revolution. In one’s home one could be oneself. Writers frequently quoted a statement the Earl of Chatham, an English supporter of the American colonists, made before the revolution:

“The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king of England may not enter; all his force dares not cross the threshold of the ruined tenement.” Quoted in Cooley, Constitutional Limitations, supra, 299 n. 3.

Over a century later, the United States Supreme Court made a similar point in describing the heart of a violation of the Fourth Amendment:

“It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of the indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense ***.” Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886). (Emphasis supplied.)

See also West key number 30k1079 (claim must be adequately briefed to be decided).

Officers had word that defendant would be transporting marijuana from Quebec into Northern New York, and they saw him and stopped him for speeding. There was an objective basis for the stop, and it was valid. United States v. Shefler, 2009 U.S. Dist. LEXIS 2108 (N.D. N.Y. January 13, 2009).*

Officer had reasonable suspicion for stop of defendant’s car based on collective information, and the plain view after that was justified. United States v. Burk, 2009 U.S. Dist. LEXIS 2321 (E.D. Pa. January 13, 2009).*

Testimony of officers was credited over defendant’s affidavit and shows consent. United States v. Chisholm, 2008 U.S. Dist. LEXIS 106474 (E.D. N.Y. October 29, 2008).*

Officer responding to a shooting call saw a vehicle. Questioning and a patdown produced nothing. But, the two men were nervous and evasive, and it was determined to search the car anyway for a weapon, which was found. The motion to suppress was properly denied based on the likely presence of a weapon from the shooting. People v. Johnson, 387 Ill. App. 3d 768, 327 Ill. Dec. 127, 901 N.E.2d 455 (2009).*

Exclusionary rule does not apply in bar disciplinary proceedings. In re Clark, 08-DB-034 (La. Atty. Disc. Bd. January 12, 2009).

Defendant was found to have child pornography on his work computer, and the police had admissions that there would be some at home. While waiting for a search warrant, the police went to his house and saw a burn barrel in the backyard with a fire going. That was an exigent circumstance to enter without the warrant. United States v. Rodriguez, 2009 U.S. App. LEXIS 8158 (9th Cir. April 17, 2009) (unpublished).

Defendant argued his detention in somebody else’s apartment was overlong, but the Ninth Circuit found that it was by consent and purged the taint, if it was overlong. At one point, the defendant actually left the apartment and came back, so how could it be a command to stay? United States v. Monroe, 2009 U.S. App. LEXIS 8214 (9th Cir. April 20, 2009) (unpublished).*

Defendant’s vehicle search was with PC so it was valid. United States v. Murillo, 2009 U.S. App. LEXIS 8210 (9th Cir. April 20, 2009) (unpublished).*

The U.S. used the Mutual Legal Assistance Treaty (MLAT) between the U.S. and Spain in seeking to have Spain conduct a search under its law there. Spain took possession of the evidence. A year later, the evidence was reviewed by U.S. officials and resulted in charges in federal court in Texas. The U.S. officials were not sufficient instigators of the search in Spain to have participated in it. United States v. Adler, 2009 U.S. Dist. LEXIS 32583 (W.D. Tex. March 5, 2009):

Adler’s case is distinguishable from Hawkins, Heller, Morrow, and Birdsell, in which American authorities merely informed foreign officials of potentially criminal activity that the foreign officials then chose to pursue. Adler points out that the American MLAT request detailed specific evidence to be seized by Spanish authorities and also directed them where to search, why such evidence was desired, and how to handle the evidence.

Adler cites cases holding that American authorities so substantially participated in foreign searches as to make them joint ventures subject to Fourth Amendment protection. See United States v. Peterson, 812 F.2d 486, 488-90 (9th Cir. 1987) (American agents termed their actions “joint investigation” and participated in daily decoding and translating of intercepted transmissions with Thai authorities); United States v. Hensel, 699 F.2d 18, 25 (1st Cir. 1983) (“joint venture” involved high-seas chase and search by American and Canadian vessels, Americans began chase, requested Canadian aid, urged Canadians to seize ship, showed firepower, provided backup and interpreters to Canadians, and participated in second search). Adler’s case is distinguishable from Peterson and Hensel, as the level of American participation in each of those cases far surpasses American involvement here. The facts of this case therefore fall in the murky area between the limited American participation in Hawkins, Heller, Morrow, and Birdsell and the significant participation in Peterson and Hensel.

. . .

Overall, the Court finds Gomez-Castrillon’s analysis more persuasive than that of Vilar. Although Adler’s facts do not align precisely with those in Gomez-Castrillon, they are sufficiently similar for that court’s holding–that an MLAT request does not make a complying foreign government an American agent–to be persuasive to this Court.

The record reflects that American authorities did not obtain the seized evidence until October 2002, a year after the search was conducted. At that time, American officials traveled to Spain to review the seized evidence and return to the United States with it. Although an FBI agent in Madrid was aware of the search, no American official was present at the search. Spanish officers recovered evidence that had not been requested by American authorities, such as the counterfeit Viagra for which Adler was prosecuted in Spain. Overall, the record shows Spanish officers chose how to implement the search, conducted it without American input besides the MLAT request, and benefitted from the fruits of the search.

The Court also notes the policy behind the exclusionary rule. The rule’s purpose is to deter American officials from violating American constitutional principles; it does not apply to foreign searches because an American court’s action is unlikely to affect the conduct of foreign authorities. Morrow, 537 F.2d at 139; see also Hensel, 699 F.2d at 25. Excluding evidence in this case would be unlikely to affect the conduct of Spanish officials in future Spanish searches, or even affect how the United States and Spain conduct future MLAT-related searches.

Having reviewed the record and the applicable law, The Court finds and concludes that American authorities did not participate in the October 11, 2001 search nor were Spanish officials acting as agents of the United States to the extent necessary to implicate the Fourth Amendment.

I saw this on a list serv from the FBI from February: Searching Cell Phones Seized Incident. This is a pretty good compendium on the law up until now.

The Supreme Court has oral argument today in Safford United School District #1 v. Redding, SCOTUSWiki here, in what must be the most reported case of the year. Search “Redding” on any major paper’s website. See today’s Washington Post, Sunday’s NY Times, CNN.com, FoxNews.com, ABC News, CBS News, and MSNBC. On ABC today at 7:10 am ET, there already was a considerable line to get in for the argument.

Questions presented:

1. Whether the Fourth Amendment prohibits public school officials from conducting a search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.

2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public school administrator may be liable in a damages lawsuit under 42 U.S.C. § 1983 for conducting a search of a student suspected of possessing and distributing a prescription drug on campus.

See SCOTUSWiki for all you need to know about the case; more than I could possibly provide because I don’t have 30 people maintaining a website.

Today’s NY Times has an article about the growing number of jurisdictions that gather DNA from arrestees: F.B.I. and States Vastly Expand DNA Databases:

Law enforcement officials are vastly expanding their collection of DNA to include millions more people who have been arrested or detained but not yet convicted. The move, intended to help solve more crimes, is raising concerns about the privacy of petty offenders and people who are presumed innocent.

Until now, the federal government genetically tracked only convicts. But starting this month, the Federal Bureau of Investigation will join 15 states that collect DNA samples from those awaiting trial and will collect DNA from detained immigrants — the vanguard of a growing class of genetic registrants.

The F.B.I., with a DNA database of 6.7 million profiles, expects to accelerate its growth rate from 80,000 new entries a year to 1.2 million by 2012 — a 17-fold increase. F.B.I. officials say they expect DNA processing backlogs — which now stand at more than 500,000 cases — to increase.

Law enforcement officials say that expanding the DNA databanks to include legally innocent people will help solve more violent crimes. They point out that DNA has helped convict thousands of criminals and has exonerated more than 200 wrongfully convicted people.

But criminal justice experts cite Fourth Amendment privacy concerns and worry that the nation is becoming a genetic surveillance society.

There will be incessant challenges to DNA samples taken on arrest when the sample turns up solving a case, which effectively makes it harder to decide for the citizen.

Defendant was charged with child abuse murder in Florida. After the death of her child in Florida, she moved to West Virginia. Defendant was suspected there of child abuse by Munchausen syndrome by proxy, and video surveillance was set up in her child’s hospital room in West Virginia to record her interactions with a second child. Under the narrow facts of this case, she did not have a reasonable expectation of privacy in that room that there would be no surveillance. State v. Butler, 1 So. 3d 242 (Fla. App. 1DCA 2008):

We do not read Jones or any analogous authority to create an unbending and unequivocal rule that individuals within hospital rooms invariably have reasonable and broad expectations of privacy. Such a reading would be counter to the dictate of Katz that “the Fourth Amendment protects people, not places.” Katz, 389 U.S. at 351. Instead, the case law emphasizes that the objective reasonableness of an expectation of privacy in a hospital setting turns on the particular circumstances of each case. See, e.g., State v. Stott, 794 A.2d 120, 127 (N.J. 2002) (noting that “a patient admitted for long-term care may enjoy a greater expectation of privacy than one rushed to an emergency room and released that same day. Moreover, the nature or scope of the privacy interest may differ depending on the facts and circumstances of a given case.”); People v. Brown, 151 Cal. Rptr. 749, 754 (Cal. Ct. App. 1979) (observing that “the question of privacy in a hospital does not merely turn on a general expectation of privacy in use of a given space, but to some degree depends on the person whose conduct is questioned. … [A] patient may well waive his right of privacy as to hospital personnel, [but] it is obvious that he has not turned ‘his’ room into a public thoroughfare.”).

The surveillance at issue here occurred in a type of space in which, under some circumstances, individuals have held reasonable expectations of privacy, but that alone does not mean appellee’s expectation was reasonable in this case. See Katz, 389 U.S. at 351; accord Brown, 151 Cal. Rptr. at 754 (observing that “the question of privacy in a hospital … to some degree depends on the person whose conduct is questioned”). We find the trial court erred by apparently concluding that society is prepared to recognize as reasonable appellee’s expectation that her interactions with her heavily monitored and very sick child in a hospital bed would remain private.

First, no record evidence supports the conclusion that appellee’s presence in her son’s room was so established that she would reasonably have regarded the room as affording her a quantum of privacy equivalent to that she would expect in a hotel room. In fact, although nurses brought meals to Butler in the room, Butler alleged in her motion to suppress that hospital staff urged her to stay overnight, suggesting it was no foregone conclusion that she would stay in the room at all.

. . .

We emphasize that our conclusion regarding the reasonableness of appellee’s expectation of privacy is limited to the peculiar and, fortunately, rare facts presented in this case. Our opinion by no means stands for the proposition that the Fourth Amendment permits the government to set up video surveillance in private hospital rooms indiscriminately. That, quite simply, is not the question confronting us. We merely hold that, as to appellee’s interactions with her son in the circumstances presented here, she did not have a reasonable expectation of privacy. Because no search in the constitutional sense occurred, Butler’s right to be free from unreasonable searches has not been implicated.

In a knock-and-talk, officer’s going to the back door after smelling marijuana exceeded the authority given to the public to access the property. Quintana v. Commonwealth, 276 S.W.3d 753 (Ky. 2008):

A back yard is not normally an area that the general public would perceive as public access. While the back yard may not always enjoy the protection of the curtilage, it is a rare one that does not. See Daughenbaugh v. City of Tiffin, 150 F.3d 594, 601 (6th Cir. 1998) (“The backyard and area immediately surrounding the home are really extensions of the dwelling itself. This is not true simply in a mechanical sense because the areas are geographically proximate. It is true because people have both actual and reasonable expectations that many of the private experiences of home life often occur outside the house.”). Under the four-factor analysis of Dunn, the back yard in this case satisfies proximity since it was immediately in back of the house; while not completely enclosed, home living items were in the yard; and a concrete patio was in the yard behind the house, as was a large gas tank which shielded part of the patio from view. Perhaps most telling about Appellant’s expectation of privacy is the presence of a dog kennel and what appear to be other animal pens. Most importantly, the discovery made by the officer could not have been made by sight (or smell) from an area outside the yard; he had to be right under the window unit to perceive the smell. In short, the back yard was within the curtilage of the house and Appellant Quintana had a reasonable expectation of privacy in it. The officer did not have the right to be there absent a warrant, meaning any information he uncovered there (the “smell” of marijuana) was improper and thereby tainted the search warrant based on it. The evidence found as the result of the improperly obtained search warrant thus should have been suppressed.

Officers had reasonable suspicion for a stop based on a statement from citizen informant who defendants pulled up next to and offered crack and showed it. The citizen told the officers who observed the encounter. State v. Lee, 147 Wn. App. 912, 2008 Wash. App. LEXIS 2962 (December 29, 2008).

Taillight stop led officer to reasonably suspect that the occupants had been involved in a recent robbery. State v. Cooper, 2 So. 3d 1172 (La. App. 2d Cir. 2009):

Officer Person noted that the suspects fit the general description of the perpetrators and that the suspects were in the vicinity of the vehicle which had been abandoned by the offenders. He also saw that the number and size of the suspects was incongruous with the small car that they entered, that one of the suspects looked startled upon seeing a police officer and that all of the suspects acted nervous after the stop. Finally, Officer Person observed that the driver gave rambling answers in response to his questions and that none of the suspects could supply consistent answers as to their previous whereabouts. Officer Person’s belief that the suspects may have been involved with the armed robbery earlier that day was, therefore, a reasonable inference which was based on particularized facts.

On the state’s petition for discretionary review, the Court of Criminal Appeals independently determines that defendant’s stop was justified by probable cause. Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009),* rev’g Amador v. State, 242 S.W.3d 95 (Tex. App. — Beaumont 2007), posted here.

The stalking astronaut‘s statement is invalid, but the search of her car is valid. While her statement to the police was suppressed, the location of her car with all the paraphernalia for the abduction was given in her statement, but the prosecution proved that their investigation would have led them to the car. Therefore, inevitable discovery applied. State v. Nowak, 1 So. 3d 215 (Fla. App. 5th DCA 2008):

Nowak disclosed the location of her car to police, as part of her illegally obtained statement. However, the trial court found that law enforcement would have found the vehicle legally, even if Nowak had not led them to it. This finding is supported by competent, substantial evidence. The investigating officer testified about the normal investigative measures that he would have employed to find out what vehicles Nowak regularly drove (starting with a call to her employer, NASA) and also testified that his agency would have searched the hotel parking lot where the vehicle was found based upon a document in Nowak’s possession at the time of her arrest (which contained directions to this hotel). Accepting the trial court’s factual finding on this issue, we conclude that any evidence seized from Nowak’s car is admissible under the inevitable discovery doctrine, as long as law enforcement had a legal basis to search the car when they found it. See McDonnell v. State, 981 So. 2d 585, 591 (Fla. 1st DCA 2008) (“For the inevitable discovery doctrine to apply, the state must establish by a preponderance of the evidence that the police ultimately would have discovered the evidence independently of the improper police conduct by ‘means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure.'”) (quoting Hatcher v. State, 834 So. 2d 314, 317-18 (Fla. 5th DCA 2003)).

. . .

Applying this standard, as long as law enforcement had a practical, common-sense basis to conclude that Nowak’s car likely contained additional evidence of her alleged criminal conduct, they had probable cause to search the car. Id.

In this case, the items already lawfully seized from Nowak, along with the victim’s statement to police, clearly indicated prior planning (Nowak knew of the victim and had traveled all the way from Texas to accost her with pepper spray, while wearing a disguise and carrying a CO2 powered BB pistol, a steel mallet, a buck knife, rubber tubing, and several large plastic bags). These facts and items also evidence a plan that likely extended beyond the airport parking lot. Given the backward-looking (prior planning) and forward-looking (future plan) nature of the facts known to law enforcement, separate and apart from any information illegally obtained from Nowak herself, it was simply a practical, common-sense conclusion that evidence of Nowak’s planning and plan would likely be found in the vehicle that brought her to the encounter, and to which she would return. This is all that was required to show probable cause. Id. Accordingly, we find that the trial court erred in its conclusion that law enforcement lacked probable cause to search the car and reverse that portion of the order that required suppression of the evidence seized from the car.

Officer stopped defendant for being in a high crime area known for prostitution after he stopped and talked to two women on the street and one got in the car. That was just a hunch for a stop. DUI arrest suppressed. State v. Priester, 2008 Ohio 6285, 2008 Ohio App. LEXIS 5232 (8th Dist. December 4, 2008).*

Trial court properly denied defendant’s motion to suppress where a CI arranged a buy which occurred with police surveillance, defendant left the buy and dropped an envelope in a trash can on the street with marijuana in it, and officers approached his car and saw marijuana in plain view. People v. Henderson, 2008 NY Slip Op 9618, 2008 N.Y. App. Div. LEXIS 9251 (2d Dept. December 2, 2008).*

Officers’ 12 second wait was reasonable under the circumstances because of defendant’s known propensity to be armed. The trial court erred in suppressing. (Hudson was argued by the state, but the court declines to go there based on the merits of the entry.) State v. Pruitt, 967 So. 2d 1021 (Fla. App. 2DCA 2007):

In the instant case, the officers knew they were not dealing with a minor league crack or marijuana dealer. The affidavit for search warrant described a person who ran a large or growing heroin distribution operation, who used semi-sophisticated techniques to elude law enforcement, such as the use of female “mules” or hiding heroin in the dashboard or body of a vehicle, and who was a participant in a larger heroin distribution network. Additional information provided to TACT supported their reasonable belief that they were dealing with a violent career criminal. See Power v. State, 605 So. 2d 856 (Fla. 1992) (holding that police officers were not required to knock and announce when executing a search warrant where they had been informed that the defendant used a gun or knife to rape, had committed armed robbery, had a black belt in karate, had a gun, and had a violent background). In Power, there was no indication that the “specific” information that Power had used a gun or knife in the rape was also included in the warrant; it was simply information provided to the police officers prior to their execution of the warrant. See also Poole v. United States, 630 A.2d 1109, 1124 (D.C. App. 1993) (holding that where officers entered after ten seconds in the reasonable belief that defendant was on premises and had a gun and would use it if confronted provided exigent circumstances excusing full compliance with the knock-and-announce statute). Significantly, during the hearing, the TACT commander testified that he had not even read the warrant itself. Thus inclusion of information in the warrant regarding Pruitt’s potential for violence and the murder investigation would not have assisted his exigency assessment regarding officer peril.

The record supported the trial court’s conclusion that the defendant, while officers were waiting for him to move out from his girlfriend’s place, consented to a search of a lockbox for a gun and found marijuana instead. Bridgett v. State, 1 So. 3d 1054 (Ala. Crim. App. 2007), affd Ex parte Bridgett, 2008 Ala. LEXIS 127 (Ala. 2008).*

Under Mendenhall factors (“Mendenhall lists four examples of circumstances that may be indicative of a seizure, even where the person did not attempt to leave: (1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the person of the citizen; and (4) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”) the defendant’s consent was found to be the product of an unlawful seizure. People v. Ocampo, 377 Ill. App. 3d 150, 879 N.E.2d 353 (2d Dist. 2007):

Regarding the last Mendenhall factor, Rogers testified that he told defendant that he “needed to talk” with defendant. The State argues that a person’s indicating that he “needs to talk” with someone is “in everyday language *** merely an opening to a conversation,” and therefore the State urges that a reasonable person in defendant’s position would not have interpreted Rogers’s statement as a command. We disagree. First, the word “need” indicates a requirement, and Rogers testified that he informed defendant that he “needed” to talk with him, not that he asked defendant if he could talk with him. Second, and relatedly, Rogers did not testify that he waited for defendant’s assent after approaching him indicating a need to talk.

. . .

Though we find two of the Mendenhall factors to indicate a seizure in this case, the State relies on several additional characteristics of the encounter here for its argument that the encounter did not constitute a seizure. The State notes that Rogers was not in uniform, approached defendant in a public area, did not park his car to block defendant’s path, and did not inform defendant of his Miranda rights. However, as discussed above, there were also several indicia of a seizure present in this case, including the first and last Mendenhall factors. The State urges that each of the individual indicia in this case has been held elsewhere not to amount to a seizure, but our test “focuses on the coercive effect of police conduct taken as a whole, and not on each particular detail of police conduct in isolation.” People v. Stofer, 180 Ill. App. 3d 158, 166, 534 N.E.2d 1287, 128 Ill. Dec. 682 (1989). Our review of all the circumstances of this encounter, in their totality, convinces us that a reasonable, innocent person in defendant’s position, confronted behind a gas station by an officer, who was soon joined by three other officers, and told that the officer “needed to talk to him” under circumstances that indicated the officer sought him out specifically, would not have felt free to leave. Accordingly, we agree with the trial court that defendant was seized before he gave any consent to search.

There was no police show of authority until after defendant’s attempted flight. “The officer’s actions in stepping towards Defendant and his use of the phrases ‘hold up’ and ‘I need to talk to you for a second,’ especially when spoken in an ordinary and non-aggressive manner, do not rise to the level of a show of authority as a matter of law.” United States v. Dupree, 2008 U.S. Dist. LEXIS 48775 (E.D. Pa. June 24, 2008).*

Defendant was stopped for running a stop sign, and his driving on a suspended license justified his arrest on inventory of his vehicle. State v. Whitfield, 2008 Ohio 3150, 2008 Ohio App. LEXIS 2672 (8th Dist. June 26, 2008).*

Trial court found consent from disputed facts from defendant’s girlfriend to use a key illegally seized during a patdown to consent to a search of the lockbox it belonged to. The consent was purged of the primary taint of the illegal seizure of the key from a patdown. Ex parte Bridgett, 1 So. 3d 1057 (Ala. June 27, 2008).*

In Fisher v. City of San Jose, 558 F.3d 1069 (9th Cir. 2009) (en banc), the Ninth Circuit held that a twelve hour armed standoff that started with an exigency continued with one, and the police were not required to assess the situation minute-by-minute to determine that they needed an arrest warrant:

According to Fisher, the only reasonable conclusion supported by the evidence is that the exigency that existed before 6:30 a.m. dissipated after that time, thus rendering his continued seizure and the completion of his arrest unreasonable under the Fourth Amendment. Implicit in Fisher’s argument is the following premise: in an armed standoff, once a suspect is seized by virtue of being surrounded and ordered to surrender, the passage of time may operate to liberate that suspect, re-kindle the arrest warrant requirement, and require police to assess with each passing minute whether the circumstances remain exigent.

We reject this premise. Not only does it buckle under the weight of Supreme Court caselaw and that of our own circuit, but it further complicates the already complex and dangerous process of safely resolving armed standoffs, without providing any meaningful Fourth Amendment protection. We conclude that once exigent circumstances and probable cause justified Fisher’s seizure, police were not required to obtain an arrest warrant despite the fact that they did not take Fisher into full physical custody until hours later.

. . .

Requiring police in this type of siege environment to obtain an arrest warrant for Fisher, a person who is already under arrest but not yet in full physical custody, serves no practical purpose. Given that police had ample probable cause to arrest Fisher for felonies committed in their presence, any warrant obtained by the police would have merely authorized them to do exactly what they were already doing, and indeed, exactly what they were already authorized to do: surround Fisher’s home and attempt to neutralize the threat that he posed by arresting him. We do not see what a neutral and detached magistrate would have added in helping to peacefully effect Fisher’s arrest. Fisher is unable to clearly define what the Fourth Amendment allegedly required (or should require) the police to ask of the magistrate judge in the instant case. There is no support for the position that, after Fisher had been lawfully seized in his apartment, the Fourth Amendment required the police to retroactively justify the arrest to a magistrate judge by asking for an arrest warrant that had in effect already been executed. In fact, asking the magistrate judge to determine whether probable cause justified the initial seizure when police first surrounded Fisher’s residence or justifies his continued seizure amounts to the retroactive warrant practice that we have condemned. See United States v. Allard, 634 F.2d 1182, 1187 (9th Cir. 1980) (observing that “post hoc justifications [for searches and seizures] are alien to the Fourth Amendment warrant and reasonableness requirements”).

In addition, Fisher’s dissipation theory would have serious consequences beyond simply forcing police to engage in the empty gesture of obtaining a warrant in the midst of a dangerous and volatile standoff. It would introduce yet another element of uncertainty into the already complex and dangerous calculus confronting law enforcement in armed standoff situations. At minimum, the officers on the scene would be unable to devote their full attention to the actual threat and to ensuring public safety. Police would be forced to ponder with each warrantless arrest that existed at the start of the standoff had sufficiently dissipated such that they must immediately divert one or more officers from the task of resolving the standoff to the time-consuming project of obtaining a warrant. As we have recognized, “[o]btaining a telephonic warrant is not a simple procedure; among other things, a duplicate original warrant must be prepared in writing and read to the magistrate verbatim. The only step that is saved is the trip to the magistrate’s office.” United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986) (internal quotation marks and brackets omitted).

One dissent argues:

The majority’s contention that requiring a warrant in the circumstances presented by this case would be pointless and inefficient suggests that today’s opinion has less to do with the conduct of Fisher — whose drunken interaction with a security guard led to a twelve-hour, hostage-free standoff; a single misdemeanor conviction; and an award of nominal damages and additional police training — and more to do with the majority’s lack of respect for the warrant requirement. This court is not free to abandon that requirement, and it is regrettable that the majority renders it a nullity in the category of cases before us. It does so without any precedent in law, and its sole legal rationale consists of an erroneous extension of a single Supreme Court case — a case designed to allow emergency efforts by firefighters to eliminate unsafe fire conditions — to circumstances in which it has absolutely no applicability. Even more regrettable is the majority’s failure to respect the historic Fourth Amendment principles that give meaning to the warrant requirement. Accordingly, I dissent.

Comment: This is another example of hard cases make bad law. A standoff is sui generis, and making the Fourth Amendment fit once the exigency starts and then allegedly dissipates is difficult at best. Both sides have their points, but, once the suspect has started the standoff, he should be in no position to argue that an arrest warrant was really needed as the standoff become less exigent. A sliding scale just will not work in this type of case, because requiring an arrest warrant adds nothing to protect the rights of the accused in this situation.

Law.com’s story is here. The panel decision from November 21, 2007 is posted here.