“[T]he trash pulls of April 17, 2008 and April 24, 2008 revealed drug paraphernalia and residue of both cocaine and marijuana suggesting an ongoing packaging, storing or distribution pattern. The search warrant was obtained on May 7, 2008, almost two weeks after the last trash pull, and executed on May 14, 2008, within three weeks of the last trash pull. Under these circumstances the information was not stale.” United States v. Robinson, 2008 U.S. Dist. LEXIS 102689 (S.D. Fla. December 19, 2008).*

Landlords had no standing to challenge rental unit inspections of their tenants. Steinhauser v. City of St. Paul, 595 F. Supp. 2d 987 (D. Minn. 2008).*

The omitted information in the affidavit was material, but it was not intentionally omitted because it would have aided in showing that the information was not stale. Even if alleged false information was omitted and the affidavit reconsidered as reformed, PC would still exist. United States v. Holt, 2008 U.S. Dist. LEXIS 102769 (M.D. Fla. December 10, 2008).*

A suit over false arrest under a probation revocation that implies invalidity of the underlying probation is barred by Heck. Cougle v. County of Desoto, 303 Fed. Appx. 164 (5th Cir. 2008).

A district court’s failure to dismiss an entire action pursuant to Younger abstention does not qualify as a final decision under 28 U.S.C.S. § 1291, nor does it fit within the collateral order exception to that statute. Additionally, the district court’s decision does not qualify as an interlocutory order as defined in 28 U.S.C.S. § 1292. Clark v. Adams, 300 Fed. Appx. 344 (6th Cir. 2008) (unpublished).*

Trial counsel was not ineffective for failure to raise state constitutional argument since the state supreme court’s finding the state constitution had broader application occurred after the trial. Thomas v. Norris, 2008 U.S. Dist. LEXIS 91214 (E.D. Ark. November 7, 2008).*

Multiple Miranda warnings are not required to purge the taint of an illegal arrest. Here, the defendant took a bathroom break and was told when he came out that “your fall partner has given you up.” Then he confessed. That was the cause of his confession. Monge v. State, 276 S.W.3d 180 (Tex. App.–Houston (14th Dist.) January 13, 2009):

[T]he first factor of Brown v. Illinois requires multiple Miranda warnings. The fact that repeated warnings may have been sufficient in other cases does not necessarily mean, in the context of this attenuation analysis, that multiple warnings are mandatory. See Bell, 724 S.W.2d at 788 (asking simply whether Miranda warnings were given); see also Rosalez v. State, 875 S.W.2d 705, 722 (Tex. App.–Dallas 1993, pet. ref’d) (resolving first factor in State’s favor because defendant received Miranda warnings immediately after arrest, and indicated he understood his rights).

A claim of sexual battery on the job is not a Fourth Amendment claim. Rasi v. Dep’t of Correction, 2009 U.S. Dist. LEXIS 2540 (W.D. Va. January 13, 2009):

Rasi’s allegation that Allen’s alleged sexual battery constituted an unlawful seizure and search in violation of the Fourth Amendment is incorrect. Since “the harm inflicted did not occur in the course of an attempted arrest or apprehension of one suspected of criminal conduct … the claim [is] not one of Fourth Amendment violation.” Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997) (internal citations omitted).

Comment: This, to me, is an overgeneralization. It is true as far as it goes in this case, but it cannot be conclusively stated that a governmental actor is not conducting a seizure if it is not a criminal investigation.

Delayed notice of a covert entry under 18 U.S.C. § 3103 does not per se justify exclusion of the evidence. United States v. Christopher, 2009 U.S. Dist. LEXIS 28240 (D. V.I. March 31, 2009):

What constitutes a reasonable time for delayed notice will depend upon the circumstances of each individual case and the Court bears in mind the ongoing nature of the investigation as well as the manner in which the delayed notice search warrant was executed in this case. See id. at 1337. The Court takes into account that, generally, a covert entry search is less intrusive than a conventional search with physical seizure because the latter deprives the owner not only of privacy but also of the use of his property. See Villegas, 899 F.2d at 1337. It is also the Court’s perception that a covert entry search is less intrusive than a wiretap or video camera surveillance because “the physical search is of relatively short duration, focuses the search specifically on the items listed in the warrant, and produces information as of a given moment, whereas the electronic surveillance is ongoing and indiscriminate ….” Id.

Additionally, the Court notes that a violation of Federal Rule of Criminal Procedure Rule 41 or 18 U.S.C. § 3103’s notice requirement does not necessarily call forth the application of the exclusionary rule. See Donovan, 429 U.S. at 438-39; Pangburn, 983 F.2d at 455. “Courts should be wary in extending the exclusionary rule in search and seizure cases which are not of constitutional magnitude.” United States v. Burke, 517 F.2d 377, 386-87 (2d Cir. 1975). A rule of exclusion is properly employed only where the objection goes to the question of the reliability of the challenged evidence or reflects intolerable government conduct which is widespread and cannot otherwise be controlled. See Dunaway v. New York, 442 U.S. 200 (1979); Manson v. Brathwaite, 432 U.S. 98 (1977); United States v. Calandra, 414 U.S. 338 (1974); Neil v. Biggers, 409 U.S. 188 (1972); Mapp v. Ohio, 367 U.S. 643 (1961). The imposition of sanctions requiring the suppression of evidence that results from a search where there has not been compliance with the relevant notice requirements must depend upon the relationship of the violation to the reliability of the evidence seized.

The Court finds it difficult to accept the proposition that a search may be deemed reasonable, and therefore constitutional, during the various stages of application for authorization, execution, and termination, only to be invalidated because of the operation of some condition subsequent, to-wit, a failure to provide notice. See United States v. Cafero, 473 F.2d 489, 499 (3d Cir. 1973). The procedural requirements for giving notice after execution of a valid search warrant are ministerial tasks and a failure to comply therewith, without more, does not amount to deprivation of Fourth Amendment rights necessitating suppression. Id.; see also Frisby v. United States, 79 F.3d 29, 31-32 (6th Cir. 1996). The Court holds that violations of the notice requirements under Rule 41 or 18 U.S.C. § 3103 will not lead to exclusion unless there is a substantial showing of either (1) incurable prejudice to the defendant or (2) bad faith on the part of law enforcement officers or government agents. See Donovan, 429 U.S. at 438-439; Burke, 517 F.2d at 387; Mark, 2007 U.S. Dist. LEXIS 17878 at *33; see also United States v Hooker, 418 F Supp 476 (M.D. Pa. 1976) (finding that failure of government to properly file inventory under Rule 41 would not require suppression of evidence where error was inadvertent and resulted in no prejudice to defendant).

Stop of defendant’s vehicle was with probable cause. The CI told the officer that defendant drove from Washington to California twice a month to pick up meth and he was leaving October 17th. On the night of October 16th, the officer placed a GPS device on his car, and the readings from the GPS corroborated the informant. Then a dog alerted on the vehicle, too. United States v. Hernandez-Vargas, 2009 U.S. Dist. LEXIS 23109 (W.D. Wash. March 11, 2009).

Defense counsel was not ineffective for not challenging the defendant’s and his co-conspirator’s surreptitiously recorded conversation in the back of the police car where defendant chastised his co-conspirator for not keeping his story straight, that failure leading to the officer believing that there was reasonable suspicion because of their conflicting stories. He had no right to be Mirandized before that because the conversation was not the product of interrogation. United States v. Delvillar, 2009 U.S. Dist. LEXIS 23159 (D. Neb. March 11, 2009).*

Prosecutor who used a search warrant to aid the defense of a habeas corpus was not entitled to absolute immunity. Auguste v. Sullivan, 2009 U.S. Dist. LEXIS 23526 (D. Colo. March 26, 2009)*:

It is clear that the facts of this case are a significant step removed from the framework laid out in Imbler and its progeny. The facts here involve the execution of a search warrant to aid the defense of a habeas corpus proceeding. “Habeas corpus is a civil proceeding and the burden is upon the petitioner to show by a preponderance of the evidence that he is entitled to relief.” Beeler v. Crouse, 332 F.2d 783, 783 (10th Cir. 1964); see also Browder v. Dir., Dep’t of Corr. of Illinois, 434 U.S. 257, 269 (1978) (“It is well settled that habeas corpus is a civil proceeding.”); In re Barnett, 73 P.3d 1106, 1112 (Cal. 2003) (“Postconviction relief is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature.”) (citations omitted). Neither the initiation of a criminal prosecution nor the presentation of the government’s criminal charges is at issue in the present case.

Turning to defendant Wilson’s arguments, I conclude that he fails to meet his burden of showing that the use of search warrants in the defense of Mr. Auguste’s habeas proceeding — a suspect exercise of the search warrant power — justifies the protection of absolute immunity. First, the Court has already determined that defendant Field is not entitled to absolute immunity; therefore, Wilson cannot piggyback on Field’s absolute prosecutorial immunity. Second, Wilson relies on authorities involving pending prosecutions, rather than any case where an investigator was held absolutely immune in connection with a habeas corpus proceeding.

Mere evidence that was seized and could be used as potential 404(b) evidence was properly seized (whether it will be used for that remains to be seen). What was seized was arguably within the search warrant, although not the specific focus of the investigation. United States v. Pena, 2009 U.S. Dist. LEXIS 23437 (S.D. Tex. March 20, 2009):

Where a search warrant authorizes the seizure of “evidence” of certain identified crimes, the Court determines whether there was cause for the law enforcement officials executing the warrant to believe that the particular item of evidence “will aid in a particular apprehension or conviction.” See Warden v. Hayden, 387 U.S. 294, 307 (1967). Items that are evidence of similar acts can be seized if they are relevant to an issue such as intent or knowledge. See Andresen v. Maryland, 427 U.S. 463, 483 (1976).

Credibility determination goes to the officer on consent where the defendant lied twice during the stop. State v. Jones, 2009 Ohio 670, 2009 Ohio App. LEXIS 577 (9th Dist. February 17, 2009).*

When the officer approached a group of men, one stepped back and threw a baggie of crack up on to the roof of a garage. That was abandonment not precipitated by an illegal act. State v. Scott, 2009 Ohio 672, 2009 Ohio App. LEXIS 582 (9th Dist. February 17, 2009).*

Private search which produced a CD of child porn from defendant’s house was valid; the private searcher was not acting as an agent of the state. State v. Staggs, 2009 Tenn. Crim. App. LEXIS 115 (February 13, 2009).*

Reasonable suspicion defendant was an illegal alien justified his detention for 24 hours under 8 C.F.R. § 287.8(b) while officers checked out his status. United States v. Diaz-Quintana, 596 F. Supp. 2d 1273 (D. S.D. 2009).*

A suit over the patdown policy of spectators attending San Francisco 49er’s NFL football games as violating the state right to be free from unreasonable searches was dismissed on a demurrer by the Superior Court and affirmed on appeal. Sheehan v. San Francisco 49ers, Ltd., 153 Cal. App. 4th 396, 62 Cal. Rptr. 3d 803 (1st Dist. 2007). The California Supreme Court held that there were sufficient allegations for the case to proceed further, and it reversed. Sheehan v. The San Francisco 49ers, Ltd., 45 Cal. 4th 992, 89 Cal. Rptr. 3d 594, 201 P.3d 472 (2009). The court distinguished the 11th Circuit’s Tampa Bay case because it involved a more cursory patdown than this one and a public entity and the Fourth Amendment, and this case involved a full patdown by a private entity and the state constitution:

The Eleventh Circuit Court of Appeals recently upheld on a consent theory an NFL patdown search policy that is similar but slightly different from the one alleged here. (Johnston v. Tampa Sports Authority (11th Cir. 2008) 530 F.3d 1320.) Johnston did not consider California’s constitutional privacy right, but it involved the Tampa Sports Authority, a public entity. (Id. at p. 1322.) The search at issue was performed by state agents, and thus the restrictions of the Fourth Amendment to the United States Constitution applied. (Johnston, supra, at pp. 1325–1326.) Hill held that the California privacy right applies against private entities, but it also stated that “[t]he ‘privacy’ protected by the Privacy Initiative is no broader in the area of search and seizure than the ‘privacy’ protected by the Fourth Amendment … .” (Hill, supra, 7 Cal.4th at p. 30, fn. 9.) However, Johnston reached its conclusion on a full factual record, a record lacking here. The search policy described in Johnston is also different from the one alleged here. In Johnston, the search encompassed only “limited above-the-waist pat-down searches” (Johnston, supra, at p. 1323); here, plaintiffs allege that the screeners “ran their hands around the [plaintiffs’] backs and down the sides of their bodies and their legs.”

. . .

One relevant circumstance for the court to consider in determining the search policy’s reasonableness is that the NFL and the 49ers’ are private entities. Although we held in Hill that the state constitutional right of privacy “creates a right of action against private as well as government entities” (Hill, supra, 7 Cal.4th at p. 20), we also explained that “[j]udicial assessment of the relative strength and importance of privacy norms and countervailing interests may differ in cases of private, as opposed to government, action.” (Id. at p. 38.) Two reasons for the difference might apply here. “First, the pervasive presence of coercive government power in basic areas of human life typically poses greater dangers to the freedoms of the citizenry than actions by private persons.” (Ibid.) “Second, ‘an individual generally has greater choice and alternatives in dealing with private actors than when dealing with the government.’ [Citation.] Initially, individuals usually have a range of choice among landlords, employers, vendors and others with whom they deal. … [V]arying degrees of competition in the marketplace may broaden or narrow the range.” (Id. at pp. 38–39.)

We further explained that “[t]hese generalized differences between public and private action may affect privacy rights differently in different contexts. If, for example, a plaintiff claiming a violation of the state constitutional right to privacy was able to choose freely among competing public or private entities in obtaining access to some opportunity, commodity, or service, his or her privacy interest may weigh less in the balance. In contrast, if a public or private entity controls access to a vitally necessary item, it may have a correspondently greater impact on the privacy rights of those with whom it deals.” (Hill, supra, 7 Cal.4th at p. 39.)

Another factor to consider is the existence of less restrictive alternatives. (Hill, supra, 7 Cal.4th at p. 38.) But to establish the reasonableness of their policy, the 49ers’ do not have to show that they have adopted the least restrictive alternative. In Hill, we explained that “the trial court erred in imposing on the NCAA the burden of establishing that there were no less intrusive means of accomplishing its legitimate objectives. … [T]he argument that such a ‘least restrictive alternative’ burden must invariably be imposed on defendants in privacy cases derives from decisions that: (1) involve clear invasions of central, autonomy-based privacy rights, particularly in the areas of free expression and association, procreation, or government-provided benefits in areas of basic human need; or (2) are directed against the invasive conduct of government agencies rather than private, voluntary organizations.” (Id. at p. 49.) Neither of these situations applies here. “We have been directed to no case imposing on a private organization, acting in a situation involving decreased expectations of privacy, the burden of justifying its conduct as the ‘least offensive alternative’ possible under the circumstances. Nothing in the language [or] history of the Privacy Initiative justifies the imposition of such a burden; we decline to impose it.” (Id. at p. 50; see also id. at pp. 49–50, fn. 16.)

GPS monitoring of a juvenile probationer was reasonable; if it can be done for adults, it can be done for juveniles. In re R.V., 171 Cal. App. 4th 239, 89 Cal. Rptr. 3d 702 (1st Dist. 2009):

GPS monitoring is expressly authorized by statute for adult probationers (Pen. Code, § 1210.7 et seq.), as well as for registered sex offenders (Pen. Code, § 1202.8) and parolees (Pen. Code, § 3010). If GPS monitoring is a permissible condition for adult probation, a fortiori the condition is permissible for juvenile probation since broader conditions may be imposed on juveniles. (In re Antonio R., supra, 78 Cal.App.4th 937.)

Given the history of R.V.’s violations of the Penal Code and of the conditions of his probation, the GPS monitoring condition was both reasonably related to his past behavior and likely to deter future criminality. Among other things, the GPS device would have allowed the probation department to determine if R.V. was on school property outside of regular school hours, when he should not have been there as he was when he committed his initial offense, or, in light of his history of truancy, off campus when he should have been at school. It would have allowed the probation officer to determine whether R.V. was observing the 9:00 p.m. to 6:00 a.m. curfew imposed by the court and to locate R.V. if he again absconded. The GPS device also would have provided a constant reminder to R..V. that he was on probation and that his activities were being monitored, hopefully providing an additional incentive to avoid further violations of the criminal laws or of his conditions of probation. (Cf. In re Jaime P. (2006) 40 Cal.4th 128, 137 [“the very existence of a probation search condition, whether for adults or juveniles, should amply deter further criminal acts”].)

The 11th Cir. reconsidered Nguyen v. United States, posted here, and came to the same result: District court erred in granting the government’s motion to dismiss under the FTCA for plaintiff doctor’s false arrest and malicious prosecution action. He got a judgment of $1.8M from a jury which is reinstated. Nguyen v. United States, 545 F.3d 1282 (11th Cir. 2008), on reconsideration Nguyen v. United States, 556 F.3d 1244 (11th Cir. 2009).*

Search of defendant’s property while it was in jail property room was not a Fourth Amendment violation under Edwards. United States v. Bell, 2009 U.S. Dist. LEXIS 8205 (D. Kan. February 4, 2009).*

Search warrant issued 109 days after a single incident crime was without probable cause because it was stale. United States v. Lindsey, 596 F. Supp. 2d 55 (D. D.C. February 5, 2009).*

Defendant was not compelled to stay by the officer’s hand gestures. The door to the car was open, and the officer’s tone was conversational. United States v. Villegas, 554 F.3d 894 (10th Cir. 2009).*

Officers had a search warrant for defendant’s premises, and evidence of drugs and possession of stolen cars was found. Officers were not precluded under the warrant from looking at the VINs of vehicles parked on his property. State v. Messer, 2009 Ohio 929, 2009 Ohio App. LEXIS 747 (12th Dist. March 2, 2009).*

Officers were not required to obtain a warrant prior to defendant’s arrest because officer saw him handling a gun in a car. Even though the defendant got out of the car and crossed the street, he was still a “recent occupant” under Thornton for search incident purposes. United States v. Lindsey, 2009 U.S. Dist. LEXIS 15411 (D. Del. February 27, 2009).*

“In this case, with the police in pursuit, Bailey jumped from a moving SUV and fled, leaving the SUV to lurch onto a sidewalk, with the door still open, the engine still running, and the keys in the ignition. By doing so, he abandoned the SUV and forfeited any reasonable expectation of privacy in the SUV.” He was also not a licensed driver and had no showing of any other connection to the vehicle. United States v. Bailey, 2009 U.S. Dist. LEXIS 15870 (D. Mass. February 26, 2009).*

In a rare federal obscenity prosecution, the requirement that the issuing magistrate “focus searchingly on the question of obscenity” (Marcus v. Search Warrant) did not require the magistrate to actually view the DVD (P.J. Video). Photographing the scene of the search (300 pictures) was permitted under the warrant. United States v. Harb, 2009 U.S. Dist. LEXIS 26745 (D. Utah March 30, 2009):

Defendants cite no authority for this argument. As cited by the government, the authority is to the contrary.31 The agents were lawfully on the premises and, therefore, their photographs during the execution of the search warrant is not a seizure in violation of the Fourth Amendment. Because the agents “in this case were properly on the [business] premises, they could record by photography scenes presented to their plain view.” Whether these photographs are admissible at trial is not before the Court at this time.

31 Bills v. Aseltine, 958 F.2d 697, 707 (6th Cir. 1992) (finding that “the recording of visual images of a scene by means of photography does not amount to a seizure because it does not ‘meaningfully interfere’ with any possessory interest”); United States v. Mancari, 463 F.3d 590, 596 (7th Cir. 2006) (following Bills); United States v. Espinoza, 641 F.2d 153, 167 (4th Cir. 1981) (finding that where agent was lawfully on the premises in the execution of a valid search warrant, the agent “did not exceed the scope of the warrant by making the photographs of what he saw in plain view and to that extent ‘seizing’ those views themselves as evidence”).

Defendant had no reasonable expectation of privacy in the common areas of his four-plex. United States v. Martin, 2009 U.S. Dist. LEXIS 27860 (D. Kan. April 2, 2009).

From the American Constitution Society for Law and Policy is this interesting paper: The Roberts Court and the Future of the Exclusionary Rule by Susan A. Bandes:

The Reagan-era Justice Department, led by Attorney General Edwin Meese, spearheaded the first frontal attack on the exclusionary rule. Under the current Supreme Court, these efforts may finally come to fruition. Chief Justice John Roberts and Justice Samuel Alito, both of whom served in the Meese Justice Department are now part of a four-member voting block (with Justices Antonin Scalia and Clarence Thomas) that, to all appearances, is busily laying the groundwork for abandoning the exclusionary rule. They lack only a reliable fifth vote.

The stop of defendant’s tractor trailer was based on hunches. Even collectively, the information did not rise to reasonable suspicion. People v. Ruano, 387 Ill. App. 3d 181, 900 N.E.2d 427, 326 Ill. Dec. 791 (2008):

Here, the stop of defendant’s vehicle was based upon the status of its registration as well as other questionable factors related by Inspector Knaus. These additional factors included, inter alia, the truck’s state of origin, that it was owner-operated, that it was adorned with certain stickers, that it pulled a refrigerated trailer complete with a padlock and seal, and that the cab was decorated with religious artifacts and talismans. According to the State, all of these factors observed by the officers, taken in combination, were sufficient to warrant an investigatory stop of defendant’s truck. The defense counters that each of the factors articulated by the officers were subject to an innocent explanation.

In our view, the aggregate weight of these factors did not give rise to a reasonable suspicion, let alone probable cause. Beverly, 364 Ill. App. 3d at 368, 845 N.E.2d at 969. It is clear from the record that the trial court, while far from ignoring these factors, relied more heavily on the issue of the registration. Furthermore, we agree with defendant and the trial court that many of the factors cited as supporting a reasonable suspicion were subject to innocent explanations and even when considered together did not support a reasonable suspicion. Having reviewed the record and the trial court’s findings regarding the factors, other than the registration issue, we find they were not manifestly erroneous. Luedemann, 222 Ill. 2d at 542, 857 N.E.2d at 195.

Defendant was driving a moped across the center line and not wearing safety goggles as a minor, and that was sufficient reasonable suspicion for the stop. State v. Washington, 898 N.E.2d 1200 (Ind. 2008).*

Under Hudson and Herring, defendant’s identity would not be suppressed from an illegal arrest. United States v. Farias-Gonzalez, 556 F.3d 1181 (11th Cir. 2009):

Additionally, allowing a criminal defendant to use the exclusionary rule to exclude evidence of his identity achieves the same result as would allowing him to suppress the court’s jurisdiction over him. While Farias-Gonzalez does not seek to prevent the court from summoning him before it, he does seek to prevent the Government from showing who he is when he appears before it. If Farias-Gonzalez can suppress the Government’s evidence of who he is, then he has accomplished the same thing he would have accomplished had he suppressed the ability of the court to exercise jurisdiction over him. But, the Supreme Court forbade the use of the exclusionary rule to challenge jurisdiction in Lopez-Mendoza. To allow the use of the exclusionary rule to exclude evidence of who the defendant is would be a significant social cost.

We turn now to the deterrence benefits in applying the exclusionary rule to identity-related evidence. Like in Hudson, there is no evidence at issue here which could not be otherwise obtained without violating the Fourth Amendment. The Constitution does not prohibit the Government from requiring a person to identity himself to a police officer. Hiibel, 542 U.S. at 188, 124 S. Ct. at 2459 (“A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.”). The police can obtain both photographs and fingerprints without conducting a search under the Fourth Amendment. United States v. Dionisio, 410 U.S. 1, 14-15, 93 S. Ct. 764, 771-72, 35 L. Ed. 2d 67 (1973) (holding that voice and facial characteristics are exposed to public, and thus not protected by the Fourth Amendment, and that fingerprinting likewise does not constitute a search since it “involves none of the probing in to an individual’s private life and thoughts that marks an interrogation or search.” (quoting Davis, 394 U.S. at 727, 89 S. Ct. at 1398)). Thus, it is not the acquisition of the evidence at issue here, but rather an earlier unconstitutional search and seizure that caused what the district court found to be a constitutional violation and triggered the potential application of the exclusionary rule. This case is similar to Hudson in that there was no incentive to violate the Fourth Amendment, as the evidence was freely obtainable without implicating the Fourth Amendment.

Court declines to dismiss warrantless search issue for lack of an affidavit of personal knowledge from the defendant. Wiretaps of informants were credited with showing probable cause for warrantless entry. Her consent was valid, despite several officers in her hotel room. United States v. Moreno, 2009 U.S. Dist. LEXIS 14405 (E.D. N.Y. February 24, 2009).*

Defendant’s consent was shown by “written consent to search his residence. Indeed, as the government correctly points out, Cook accompanied the DEA agents to his home and, without handcuffs on, led agents around, and specifically indicated where specific contraband was located. The court is simply not persuaded that Cook’s cooperation in this regard, including signing the DEA Form 88, was anything other than consensual. Accordingly, the court must deny this aspect of Cook’s motion.” United States v. Cook, 2009 U.S. Dist. LEXIS 14285 (D. Del. February 24, 2009).*

Prison strip and body cavity searches in traveling from more secure areas of the prison to less secure areas are reasonable. Quinones-Ruiz v. Pereira-Castillo, 2009 U.S. Dist. LEXIS 14368 (D. P.R. February 23, 2009).*

Photographing a tattoo as an identifying mark which required a woman to bear her breasts in private in jail was reasonable. Schmidt v. Magyari, 557 F.3d 564 (8th Cir. 2009):

Rather than triggering a per se rule, the search in this case requires balancing the factors set out in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). See Richmond v. City of Brooklyn Ctr., 490 F.3d 1002, 1006 (8th Cir. 2007) (applying Bell factors in absence of per se rule); Smook, 457 F.3d at 810 (same); see also Stanley v. Henson, 337 F.3d 961, 964 (7th Cir. 2003) (applying Bell factors to uphold a clothing exchange practice that required a woman remove her outer clothing and expose her bare breasts since she was not wearing a bra). Under Bell, courts must consider (1) the justification for initiating the search, (2) the scope of the particular intrusion, (3) the place in which the search is conducted, and (4) the manner in which it is conducted. 441 U.S. at 559. These factors are used to balance the need for a particular search with the rights of the individual being searched. Id.

. . .

While the photographing in this case was arguably more intrusive, as it required Schmidt to unzip her pants, we do not believe that this distinction is sufficient to render the search a violation of the Fourth Amendment. In this case, Schmidt admits that Locke told her that the photograph of her tattoo was needed for identification purposes. Schmidt had provided false identification information, including a false name, date of birth, and social security number. Under the circumstances, Locke was justified in photographing Schmidt’s tattoo as an identifying mark.

We must also consider the scope of the intrusion. Given the location of the tattoo, Locke required Schmidt to be no more exposed than necessary to permit photographing the tattoo, which minimized the invasion of Schmidt’s privacy. The location of the search is also relevant. As Schmidt acknowledges in her brief, the photograph was taken in private, which limited the seriousness of the intrusion. ….

Defendant had an expectation of privacy as a social guest, but the entry was by bounty hunters looking for him as a bail jumper, and there was no governmental action involved. Their seeing drugs and paraphernalia on their entry was not subject to the Fourth Amendment. They were acting solely in their own pecuniary interests, and the fact the state regulated bailbondsmen to some degree had no effect on the outcome. United States v. Poe, 556 F.3d 1113 (10th Cir. 2009):

We use a dual-pronged inquiry to decide if a search by a private individual constitutes state action within the meaning of the Fourth Amendment. Souza, 223 F.3d at 1201; see also Smythe, 84 F.3d at 1242-43; Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir. 1989). First, we determine “whether the government knew of and acquiesced in the [individual’s] intrusive conduct.” Souza, 223 F.3d at 1201 (quotation omitted). Second, we consider “whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” Id. (quotation omitted). Both prongs must be satisfied considering the totality of the circumstances before the seemingly private search may be deemed a government search. Id. (citation omitted).

The bounty hunter’s search of Wilson’s residence does not satisfy either prong of the Souza inquiry. Poe does not and cannot assert that the government “knew of or acquiesced in” the bounty hunters’ entry and search of Wilson’s home. Souza and Smythe are instructive. In Souza, this court held that a search by a private delivery service employee amounted to a government search for Fourth Amendment purposes because it was instigated and encouraged by Drug Enforcement Agency (“DEA”) agents. 223 F.3d at 1202. The DEA agents identified the item they wanted searched, set it aside, and repeatedly encouraged the employee to open it. Id. In contrast, in Smythe, a bus station manager searched a box he feared contained dangerous materials after he called the police and the responding officer advised him that he could legally open the box. 84 F.3d at 1243. This did not constitute a government search. Id. Noting that “the police in no way instigated, orchestrated or encouraged the search,” we held that “if a government agent is involved ‘merely as a witness,’ the requisite government action implicating Fourth Amendment concerns is absent.” Id. (citation omitted). Before us, it is undisputed that the police did not become involved until Sanders called them, after he and DeWitt had entered Wilson’s house, apprehended Poe, and discovered the firearm, drugs, and paraphernalia. As with a “mere witness,” this after-the-fact involvement of the police does not implicate the Fourth Amendment.

Video surveillance in a police locker room to look for vandalism was not clearly established to be a constitutional violation, particularly here where the video camera did not work. State action was also not clear. [Case is interesting because it summarizes the caselaw of locker room video surveillance.] Devittorio v. Hall, 589 F. Supp. 2d 247 (S.D. N.Y. 2008).*

Evidence supported the district court’s conclusion that defendant’s consent during his traffic stop was consensual. United States v. Gurrola, 301 Fed. Appx. 337 (5th Cir. 2008)* (unpublished).

Defendant consented to a search of his car which produced nothing. He first consented then revoked consent to search his person, and the officer believed he was secreting drugs under an Ace bandage wrapped around his midsection. Defendant was arrested for felon in possession of a firearm and then validly searched incident to that. United States v. Sims, 302 Fed. Appx. 195 (4th Cir. 2008)* (unpublished).

A West Virginia lawmaker wants the unemployed to submit to UAs to get unemployment benefits, and he has proposed a bill requiring it. See CNN.com Applying for jobless benefits? Here, pee in a cup.

On ABAJournal.com: Who’s Policing the Fourth Amendment? Two cases push the unevenly enforced exclusionary rule closer to repeal, by David G. Savage.