There is no constitutional right to avoid a BAC test under the Kansas implied consent law. State v. Bussart-Savaloja, 40 Kan. App. 2d 916, 198 P.3d 163 (2008):

The United States Supreme Court has also rejected constitutional challenges to the admission of a defendant’s refusal to submit to a blood alcohol test. See South Dakota v. Neville, 459 U.S. 553, 563, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983), where the Court upheld a statute against Fifth Amendment self-incrimination challenges and due process challenges. The Court’s reasoning, however, is applicable to a Fourth Amendment challenge as well. The Court distinguished the case from a previous case in which the Court heard a Fifth Amendment challenge to the practice permitting prosecutors to comment on a criminal defendant’s election not to testify. See Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229, reh. denied 381 U.S. 957 (1965). The Court reasoned that “[u]nlike the defendant’s situation in Griffin, a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test.” Neville, 459 U.S. at 560 n.10; see K.S.A. 8-1001(f)(B).

Because there is no constitutional right to refuse to be tested, there can be no constitutional bar to the admission of testing evidence. See Melilli, The Consequences of Refusing to Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901, 922 (2002), arguing “[t]he end result is that, without a constitutionally effective right to block a search or seizure by refusing consent, the refusal of consent is constitutionally irrelevant. There can be no derivative constitutional right to bar evidence of an invocation of something that itself is not a constitutional right.”

“The appellant in this case, Steve Vankesteren, invites us to consider the application of the Fourth Amendment to a product of modern surveillance technology: namely, a hidden, fixed-range, motion-activated video camera placed in the appellant’s open fields. We find that the protective wall of the Fourth Amendment does not shield the appellant from the Commonwealth’s use of such a camera, and we therefore affirm the decision of the district court.” United States v. Vankesteren, 553 F.3d 286 (4th Cir. 2009):

Given the facts of these Supreme Court decisions [Hester (1924), Oliver (1984), Dunn (1987)], Vankesteren has little on which to base his case. Vankesteren’s fields were located a mile or more from his home, the land was being used for farming and not intimate activities, VDGIF had received a report of a trapped protected bird, and there is no indication in the record that Vankesteren had taken any steps to protect his field from observation. Therefore, under the Supreme Court’s jurisprudence, the subject land must be classified as open fields and not curtilage, and Vankesteren has no reasonable expectation of privacy in those open fields.

As noted previously, Vankesteren has essentially conceded this point. Vankesteren instead stakes his case on the argument that hidden surveillance cameras are subject to a higher degree of Fourth Amendment scrutiny. He cites cases in support of that proposition; yet, none of these cases involve open fields where the defendant presumably has no reasonable expectation of privacy.

Putting defendant in the back of a police car during a traffic stop did not elevate the stop to a Terry stop. United States v. Dunbar, 553 F.3d 48 (1st Cir. 2009):

[T]he fact that Dunbar “was placed in the back of a police cruiser does not elevate the detention beyond a Terry stop.” Flowers v. Fiore, 359 F.3d 24, 30 (1st Cir. 2004). Though Dunbar was stopped based on a traffic violation, not on suspicion of some larger crime, we see no basis for concluding that the officer could not place Dunbar in his cruiser while he prepared the traffic citation. See Ruidiaz, 529 F.3d at 32 (holding that “[w]hen a Terry stop is effected in connection with a traffic violation and an officer’s concern for his own safety is implicated, it is within the officer’s authority to order a passenger out of the car as a security measure” and that “an officer may issue such an order as a matter of course; he does not need to have an independent fear for his safety” (emphasis in original) (citation omitted)).

Affidavit for search warrant particularly described what was to be seized but the warrant did not. This was insufficient for suppression of evidence. United States v. Sims, 553 F.3d 580 (7th Cir. 2009):

So just as in United States v. Stefonek, 179 F.3d 1030 (7th Cir. 1999), a case that differs in no material respect from this one, the search was reasonable. But we could not there, and we cannot here, draw the straightforward conclusion that there was no violation of the Fourth Amendment. The Supreme Court, on grounds of policy rather than of text or history–in fact, as we have just noted, in the teeth of the text and possibly of the history of the amendment (depending on whether Taylor or Amar, on the one hand, or Davies on the other, has the better historical case)–has ruled that, though with numerous but immaterial exceptions, a search without a warrant is unconstitutional. (For both the rule and the exceptions, see, e.g., Brigham City v. Stuart, 547 U.S. 398, 403 (2008).) The policy is that of reducing the number of unreasonable searches by requiring that a presumably neutral judicial officer screen police searches. E.g., Johnson v. United States, 333 U.S. 10, 13-14 (1948) (Jackson, J.). “[A]nd although the effective neutrality and independence of magistrates in ex parte proceedings for the issuance of search warrants may be doubted, there is a practical reason for requiring warrants where feasible: it forces the police to make a record before the search, rather than allowing them to conduct the search without prior investigation in the expectation that if the search is fruitful a rationalization for it will not be difficult to construct, working backwards.” United States v. Mazzone, supra, 782 F.2d at 759.

Even so, it would not follow that in cases such as this, in which the judicial screening had failed to prevent the search (although it certainly succeeded in creating a written record), the fruits of the search should be suppressed at the defendant’s trial. A person whose rights have been violated by a search can be remitted to a suit against the police for committing a constitutional tort. Now that such suits are common and effective, United States v. Langford, 314 F.3d 892, 895 (7th Cir. 2002), the exclusionary rule is bound some day to give way to them. For the rule is too strict: illegally seized evidence essential to convicting the defendant of a grave crime might have to be suppressed, and the criminal let go to continue his career of criminality, even if the harm inflicted by the illegal search to the interests intended to be protected by the Fourth Amendment was slight in comparison to the harm to society of letting the defendant off scot free.

. . .

Groh was a tort case, moreover, not a criminal case. There was no question of excluding illegally seized evidence, hence no concern that the sanction for violating the Fourth Amendment would be disproportionate to the harm caused by the violation. If the plaintiffs in Groh could not prove harm, they would get no damages, rather than escaping punishment for a crime–they were never charged with having committed a crime. We do not think that the fact that our defendant might have obtained some slight psychological benefit from being able to monitor the police search had the police shown him a warrant that described the things they were looking for takes this case out of reach of the “inevitable discovery” doctrine (we might call it the no harm, no foul, doctrine). As we explained in United States v. Cazares-Olivas, supra, 515 F.3d at 728-29, “permitting people to get away with crime is too high a price to pay for errors that … do not play any causal role in the seizure (the inevitable-discovery situation) …. Groh was a suit for damages; we doubt that the Court would have invoked the exclusionary rule when a description of the things to be seized, though missing from the warrant, appeared in an affidavit that was filed with the court in support of the application and was respected when the search occurred. The inevitable-discovery doctrine, if nothing else, would have foreclosed use of the exclusionary rule in Groh.”

Also, the inevitable discovery rule is the “no harm, no foul” exception.

An order denying return of seized property is not an appealable order. There was still a pending criminal case still subject to a motion to suppress. In re Search Warrant for 415 Locust Street, Chillicothe, Missouri, 272 S.W.3d 396 (Mo. App. 2008).

Defendant was arrested for no DL while his car was parked at gas pumps. The car could be searched under search incident. State v. Young, 997 So. 2d 718 (La. App. 4th Cir. 2008).*

Defendant’s patdown went into his unzipped sweatshirt, and baggies of drugs were subject to plain feel. State v. Brandon, 2008 Ohio 5821, 2008 Ohio App. LEXIS 4896 (3d Dist. November 10, 2008).*

Cocaine bought from defendant’s premises in the last 72 days established nexus. State v. King, 2008 Ohio 5840, 2008 Ohio App. LEXIS 4881 (12th Dist. November 10, 2008).*

Handcuffing defendant after his flight was permissible under Terry. Plain feel justified search. United States v. Watson, 2008 U.S. Dist. LEXIS 101918 (N.D. Cal. December 5, 2008).*

The court credits the dog’s training, in the face of an expert which did not show that the dog did not properly alert, but the officer testified that the dog did. United States v. Brooks, 589 F. Supp. 2d 618 (E.D. Va. 2008).*

The officer “was presented with a visibly nervous driver and passenger, numerous air fresheners, and a single key in the ignition. The court also does not discount [his] knowledge and experience gleaned from his employment as a DPS trooper.” United States v. Alexander, 589 F. Supp. 2d 777 (E.D. Tex. 2008).*

The Tenth Circuit considers the question of consent on a 7-11 parking lot and finds that it was consensual, evaluating at length all the factors, United States v. Thompson, 546 F.3d 1223 n. 1 (10th Cir. 2008), making this pointed, and quite correct, observation:

It might bring greater clarity to this area of the law if the test were framed in terms of whether the officer’s behavior is coercive rather than whether, under the circumstances, the reasonable person would feel “free to disregard the police,” which we suspect is unrealistic.

Defendants had qualified immunity because of probable cause to arrest. Williams v. Miami-Dade Police Dep’t, 297 Fed. Appx. 941 (11th Cir. 2008) (unpublished).*

Defendant’s computer was in the shop for repair, and the repair geek saw a child porn image and called the police. They came and saw the image and seized the computer. The defendant was called and consented the next day to a search of the computer, which was valid. United States v. Scott, 2008 U.S. Dist. LEXIS 93105 (W.D. N.C. November 17, 2008).*

CI’s 85 day old information was used to get a search warrant for guns in defendant’s house. The warrant was not stale. United States v. Deering, 296 Fed. Appx. 894 (11th Cir. 2008)* (unpublished):

Here, the information contained in Agent Washington’s affidavit was not too stale to provide probable cause. First, the CS’s information indicated Deering’s firearm possession was ongoing. Specifically, the affidavit stated that the CS had observed firearms and ammunition at Deering’s residence “several times” within a three-month period, that there were three different guns in different locations of the house, and that the CS had heard Deering engage in target practice and seen shells scattered in the front and back yards. These facts support a finding that Deering’s firearm possession was for his personal use and was ongoing. See United States v. Haimowitz, 706 F.2d 1549, 1555 (11th Cir. 1983) (“[I]f an affidavit recites activity indicating protracted or continuous conduct, time is of less significance.”) (quotation marks omitted).

A student accidently brought a utility knife to school that had been left in his book bag. When the school administrators later found out about it, they took him home to recover it. The parents and student sued over the search of the house, which could not be entered on alleged consent of the student. D’Allesandro v. Brumbaugh, 2008 U.S. Dist. LEXIS 84914 (N.D. Ill. October 22, 2008)

However, such considerations are not pertinent in light of the unique facts in the instant action. None of the cases cited by Defendants involved a situation where the purported consenting party was a minor under the supervision and control of a government official. The undisputed record indicates that it was not Tyler that took Brumbaugh to the Residence to retrieve the Knife, but it was Brumbaugh who placed Tyler in his car and drove him to the Residence in order to retrieve the Knife, and during all this time, Tyler was “under defendant Brumbaugh’s supervision and control. …” (Ans. PSJ 5).

The informant gave information about the defendant in two calls and a face to face meeting, and he could have been subject to prosecution for false information. The police partially corroborated the informant with innocent details. The defendant got in a car and left when he saw officers. This was all reasonable suspicion for a stop. United States v. Carstarphen, 298 Fed. Appx. 151 (3d Cir. 2008) (unpublished).*

Prison cell search and seizure of UCC related materials and copyrighting names which was contraband under prison policy was not unreasonable. Edmonds v. Sobina, 296 Fed. Appx. 214 (3d Cir. 2008) (unpublished).*

Officer came to a house on a complaint of animal abuse and breeding dogs for fighting. The house was partially boarded up and could have been abandoned, but he had no information. At the front door, he knocked. It was already open about six inches, and he signed his flashlight inside and saw clothes on the floor. He entered (under department policy) with his gun drawn and flashlight shining to see if anything was amiss. It wasn’t, but he found and seized “for safekeeping” an assault rifle. The entry was illegal, but a second entry was not, so the second entry supported seizure. United States v. Vurgess, 2008 U.S. Dist. LEXIS 82293 (S.D. Ga. August 20, 2008).*

Drug dog arrived and did its business within nine minutes of start of stop, so the stop was not unreasonably extended. United States v. Jones, 296 Fed. Appx. 473, 2008 FED App. 0611N (6th Cir. 2008)* (unpublished).

Defendant let his girlfriend on probation move in with him. When she had not notified probation in advance and later admitted it, probation could conduct a probation search. Evidence was found that was lawfully used against the boyfriend. State v. Smith, 341 Mont. 82, 2008 MT 7, 176 P.3d 258 (2008).

Defendant was not, in the officer’s mind, free to leave when the stop was over and the officer kept asking questions. Reasonable suspicion was lacking. State v. Myles, 188 N.C. App. 42, 654 S.E.2d 752 (2008), aff’d State v. Myles, 362 N.C. 344, 661 S.E.2d 732 (2008):

When Gilmore stopped defendant’s vehicle, he did not detect an odor of alcohol in the vehicle. When Gilmore frisked Croon, he found no contraband or weapons. However, as Gilmore frisked Croon, he noticed Croon’s heart was beating unusually fast. Gilmore checked Croon’s license and found no outstanding violations. Gilmore noticed the rental car was one day overdue. However, Gilmore did not suspect anything unusual about the rental agreement extension.

City noise ordinance was not unconstitutionally vague so officer had reasonable suspicion for the stop of the defendant’s car for a violation of the ordinance. State v. Feregrino, 2008 Iowa App. LEXIS 23 (January 16, 2008).*

John C. Yoo’s October 23, 2001, memo on the use of U.S. troops to conduct military warrantless raids inside the U.S. was released yesterday by DoJ and appears here. The memo is to Alberto Gonzales as Special Counsel to the President and William J. Haynes, DoD General Counsel. The Fourth Amendment argument is premised on anything goes in wartime, and it appears at pages 24-34 of the memo. Alternatively, it would be reasonable under the Fourth Amendment, and that appears at 34-37 of the memo.

Suspicionless searches of corrections employees’ cars on the parking lot was reasonable under the Fourth Amendment. Some inmates have access to the parking lot in the normal course of the day, and the employees have a reduced expectation of privacy in their cars on a prison parking lot. True v. Nebraska, 2009 U.S. Dist. LEXIS 17691 (D. Neb. March 4, 2009):

The Eighth Circuit Court has considered this lowered expectation of privacy and has concluded that “it is not unreasonable to search vehicles that are parked within [a correctional] institution’s confines where they are accessible to inmates.” Id. In this case, both parties confirm that DCS “community custody inmates” have access to the parking lot that DCS periodically searches. True Aff. at P 8; Filing No. 38 at 9. The Eighth Circuit found that “[s]uch searches may be conducted without cause but must be done uniformly or by systematic random selection of employees whose vehicles are to be searched.” McDonell, 809 F.2d at 1309. The record in this case demonstrates that DCS randomizes its searches of vehicles by randomly selecting five parking stalls from a diagram of the parking lot each time it conducts a suspicionless search. Filing No. 39, Ex. 17 at 1.

Given True’s diminished expectation of privacy and the government’s justification for its search, DCS’s demand that True submit to a suspicionless search of his personal vehicle parked on DCS property did not violate True’s Fourth Amendment rights. As a result, the court grants the defendants’ motion for summary judgment and dismisses the plaintiff’s first claim for relief.

Knock and talk led to valid consent. United States v. Gonzalez, 2009 U.S. Dist. LEXIS 17502 (M.D. N.C. March 4, 2009).*

Six month old information was not stale in a child porn investigation. United States v. Smither, 2009 U.S. Dist. LEXIS 17231 (E.D. Ky. March 6, 2009). There are four factors:

The first factor considers whether the crime at issue is a one-time occurrence or part of ongoing criminal activity. The Sixth Circuit has recognized that information suggesting “ongoing criminal activity” is more durable that information of discreet offenses. United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001). Here, the affidavit contained information that the defendant traded child pornography on eight occasions. This is sufficient to suggest that the offense was ongoing especially given the nature of the criminal activity. …

The second factor addresses whether the suspected criminal is “nomadic” or “entrenched.” The defendant argues that he had moved since the information about the residence associated with the email account was obtained. Obviously, if a criminal defendant moves frequently with the hope of avoiding detection or capture, the possibility that evidence of his or her criminal conduct will be found in a given location diminishes rapidly with the passage of time. Abboud, 438 F.3d at 573. However, a single change of residence by the defendant does not necessarily indicate that the defendant was “nomadic.” “Commonsense … suggests that individuals who have a continuing interest in child pornography have extremely limited options that preclude them from being nomadic.” United States v. Wiser-Amos, 2007 U.S. Dist. LEXIS 66512, 2007 WL 2669377 (W.D. Ky. Sept. 7, 2007). …

The third factor considers whether the nature of the alleged evidence is “perishable,” “easily transferable,” or “of enduring utility to its holder.” See Abboud, 438 F.3d at 573. Child pornography has an “enduring” quality to the perpetrator. Courts that have addressed staleness challenges in pornography cases have recognized that pedophiles and collectors of pornography, particularly involving children, often hoard their material and do not discard it. As such, these courts have concluded that information relating to “continuing offenses,” such as collecting pornography and sexual abuse, have more durability than offenses that are random or isolated. … Further, given the nature of computer storage, it is reasonable to assume that the computer that originally contained the image in question still contained that image because “images and videos stored on a computer are not easily eliminated from a computer’s hard drive.” United States v. Toops, 2007 U.S. Dist. LEXIS 8629, 2007 WL 433562 *4 (M.D. Ala. Feb. 6, 2007).

The fourth factor considers whether the place identified by the search warrant is a mere criminal forum of convenience or a secure operational base. See Abboud, 438 F.3d at 573. There is a greater probability of finding evidence at a location that is “at the heart of the criminal charges.” See id. at 574. Since criminal activity involving child pornography is often conducted in a private setting, such as a home, by persons who commonly collect and store their materials (see Miller, 450 F. Supp. 2d at 1335), there is reasonable likelihood that the perpetrator in this case used a computer at his residence to store and transmit the illicit images in question.

Most cases just dispose of this argument simply. This opinion explains it far better. To my knowledge no child porn defendant has won a staleness argument where the information was less than one year old.

On CNN.com Wednesday evening: Lawsuit: Texas town stops minorities, seizes property:

Officials in the tiny east Texas town of Tenaha are accused in a federal lawsuit of stopping African-Americans driving through town and seizing their money and property by threatening them with criminal prosecution–or worse.

Among the plaintiffs are two African-Americans who claim they forfeited more than $50,000 under threat of money-laundering charges, and a biracial couple who gave up more than $6,000 after officials threatened to put their children in foster care. No one was charged with a crime.

. . .

The suit names as defendants Tenaha’s mayor and deputy city marshal, plus several Shelby County officials, including the district attorney. It alleges that the officials “have developed an illegal ‘stop and seize’ practice of targeting, stopping, detaining, searching and often seizing property from apparently non-white citizens and those traveling with non-white citizens.”

Defendant prevailed on his argument of pretext because the officer could not remember the traffic offense he stopped defendant for. United States v. Burke, 2009 U.S. Dist. LEXIS 19591 (D. Md. March 10, 2009):

The evidence at the hearing established that Detective Blasko did not remember the basis for the traffic stop, and there were no contemporaneous documents created that memorialized the reason why Defendant’s car was stopped. The best that Det. Blasko could do was make a blanket statement that his regular practice when following a suspicious vehicle was to wait until the vehicle committed a traffic violation, and that he never pulled vehicles over without probable cause. Essentially, Det. Blasko was asking the Court to simply “trust him” and take him at his word that he would not have stopped the car if he had not observed a traffic violation. This is simply an insufficient legal basis upon which to uphold a traffic stop. A finding of probable cause must be based on articulated facts supporting that conclusion.

Defendant was a shooting victim in a robbery attempt and he fled to his cousin’s apartment. The NYPD was called to investigate, and paramedics arrived. His pants were cut off him and left behind. Defendant had no standing in his cousin’s apartment to challenge the search that produced the clothing. There was also third party consent. United States v. Davis, 2009 U.S. Dist. LEXIS 19401 (S.D. N.Y. March 11, 2009).*

Officer had reasonable suspicion to bring out the drug dog during a traffic stop. United States v. $59,502,00 in United States Funds, 2009 U.S. Dist. LEXIS 18591 (M.D. Ga. March 5, 2009).*

A private search of a motel room by the motel manager who thought that the room had been vacated but found a backpack with drugs in it was merely retraced by the police and was lawful. United States v. Spicer, 2009 U.S. Dist. LEXIS 18816 (S.D. Ohio February 25, 2009):

Irrespective of the conflicts in the testimony, and taking Spicer’s testimony as true, the Detectives were allowed to retrace the steps of the private search. Even if the Detectives unzipped the book bag, they were merely looking at the same materials examined by the private parties. Detectives opening a book bag that had previously been opened in a private search is absolutely no different than a police officer opening a drawer that had previously been opened in a private search. See Clutter, 914 F.2d at 779. They learned nothing as the result of their own conduct that they had not already heard about as the result of the private search; rather, they “only confirmed the fruits of their private search.” Id. They then obtained a search warrant based on the information provided by the private search, which they had confirmed. After obtaining this warrant, they were justified in expanding their search and seizing items in the hotel room. Therefore, Spicer’s constitutional rights were not violated by the Detectives’ search of the hotel room, prior to obtaining a search warrant.

There is a foreign intelligence surveillance exception to the Fourth Amendment for surveillance conducted on calls outside the United States involving suspected terrorists. In re Directives [Redacted] Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 2008 U.S. App. LEXIS 27417, 2008 WL 5501436 (Foreign Int. Surv. Ct. Rev. August 22, 2008), ordered released January 12, 2009:

2. The Foreign Intelligence Exception. The recurrent theme permeating the petitioner’s arguments is the notion that there is no foreign intelligence exception to the Fourth Amendment’s Warrant Clause. The FISC rejected this notion, positing that our decision in In re Sealed Case confirmed the existence of a foreign intelligence exception to the warrant requirement.

While the Sealed Case court avoided an express holding that a foreign intelligence exception exists by assuming arguendo that whether or not the warrant requirements were met, the statute could survive on reasonableness grounds, see 310 F.3d at 741-42, we believe that the FISC’s reading of that decision is plausible.

The petitioner argues correctly that the Supreme Court has not explicitly recognized such an exception; indeed, the Court reserved that question in United States v. United States District Court (Keith), 407 U.S. 297, 308-09, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). But the Court has recognized a comparable exception, outside the foreign intelligence context, in so-called “special needs” cases. In those cases, the Court excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (upholding drug testing of high-school athletes and explaining that the exception to the warrant requirement applied “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement[s] impracticable” (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987))); Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 620, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (upholding regulations instituting drug and alcohol testing of railroad workers for safety reasons); cf. Terry v. Ohio, 392 U.S. 1, 23-24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (upholding pat-frisk for weapons to protect officer safety during investigatory stop).

The question, then, is whether the reasoning of the special needs cases applies by analogy to justify a foreign intelligence exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a foreign power or an agent of a foreign power reasonably believed to be located outside the United States. Applying principles derived from the special needs cases, we conclude that this type of foreign intelligence surveillance possesses characteristics that qualify it for such an exception.

For one thing, the purpose behind the surveillances ordered pursuant to the directives goes well beyond any garden-variety law enforcement objective. It involves the acquisition from overseas foreign agents of foreign intelligence to help protect national security. Moreover, this is the sort of situation in which the government’s interest is particularly intense.

The petitioner has a fallback position. Even if there is a narrow foreign intelligence exception, it asseverates, a definition of that exception should require the foreign intelligence purpose to be the primary purpose of the surveillance. For that proposition, it cites the Fourth Circuit’s decision in United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir.1980). That dog will not hunt.

This court previously has upheld as reasonable under the Fourth Amendment the Patriot Act’s substitution of “a significant purpose” for the talismanic phrase “primary purpose.” In re Sealed Case, 310 F.3d at 742-45. As we explained there, the Fourth Circuit’s “primary purpose” language-from which the pre-Patriot Act interpretation of “purpose” derived-drew an “unstable, unrealistic, and confusing” line between foreign intelligence purposes and criminal investigation purposes. Id. at 743. A surveillance with a foreign intelligence purpose often will have some ancillary criminal-law purpose. See id. The prevention or apprehension of terrorism suspects, for instance, is inextricably intertwined with the national security concerns that are at the core of foreign intelligence collection. See id. In our view the more appropriate consideration is the programmatic purpose of the surveillances and whether-as in the special needs cases-that programmatic purpose involves some legitimate objective beyond ordinary crime control. Id. at 745-46.

Under this analysis, the surveillances authorized by the directives easily pass muster. Their stated purpose centers on garnering foreign intelligence. There is no indication that the collections of information are primarily related to ordinary criminal-law enforcement purposes. Without something more than a purely speculative set of imaginings, we cannot infer that the purpose of the directives (and, thus, of the surveillances) is other than their stated purpose. See, e.g., United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”).

. . .

3. Reasonableness. This holding does not grant the government carte blanche: even though the foreign intelligence exception applies in a given case, governmental action intruding on individual privacy interests must comport with the Fourth Amendment’s reasonableness requirement. See United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Thus, the question here reduces to whether the PAA, as applied through the directives, constitutes a sufficiently reasonable exercise of governmental power to satisfy the Fourth Amendment.

. . .

V. CONCLUSION

Our government is tasked with protecting an interest of utmost significance to the nation-the safety and security of its people. But the Constitution is the cornerstone of our freedoms, and government cannot unilaterally sacrifice constitutional rights on the altar of national security. Thus, in carrying out its national security mission, the government must simultaneously fulfill its constitutional responsibility to provide reasonable protections for the privacy of United States persons. The judiciary’s duty is to hold that delicate balance steady and true.

We believe that our decision to uphold the PAA as applied in this case comports with that solemn obligation. In that regard, we caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts. This is such a case.

We need go no further. The decision granting the government’s motion to compel is affirmed; the petition for review is denied and dismissed; and the motion for a stay is denied as moot.

News stories: Washington Post, NY Times, LA times.

The fact the stop was a little long and in violation of a statutory time limit did not void it nor make it unreasonable. State v. Sera, 997 So. 2d 707 (La. App. 2d Cir. 2008).*

Initial stop was valid because the vehicle drove past a patrol car without moving into the far lane and the vehicle was clocked over the posted speed limit. Although the search took nearly an hour until the contraband was discovered, probable cause that the vehicle contained contraband developed quickly and justified the continued detention and search. State v. Collins, 998 So. 2d 765 (La. App. 1st Cir. 2008).*

In a stop based on the same thing, involving a rental car, the DL was run and a warrant came back. While the defendant was arrested, a drug dog was run around the car and it alerted. The dog alert was constitutional. State v. Khalfani, 998 So. 2d 756 (La. App. 2d Cir. 2008).*

Defendant excluded from his home by a valid court order had no reasonable expectation of privacy in it. State v. Stephenson, 760 N.W.2d 22 (Minn. App. 2009).

Officer looked through car window after defendant was arrested, and he saw scales. It was close in time to the arrest, and that justified a search incident. McGarvey v. State, 2009 WY 8, 200 P.3d 785 (2009).*

A computer search protocol that involved opening all files under a search warrant was not unreasonable because file extension names can be misleading. United States v. Jack, 2009 U.S. Dist. LEXIS 17411 (E.D. Cal. February 23, 2009):

The majority of courts addressing similar issues have reached essentially the same conclusion. Thus, it has been held that so long as the computer search is limited to a search for evidence explicitly authorized in the warrant, it is reasonable for the executing officers to open the various types of files located in the computer’s hard drive in order to determine whether they contain such evidence. See e.g. Adjani, 452 F.3d at 1150 (“The government should not be required to trust the suspect’s self-labeling when executing a warrant.”); United States v. Fumo, 565 F. Supp. 2d 638, 649 (E.D. Pa. 2008) (“[B]ecause of the nature of computer files, the government may legally open and briefly examine each file when searching a computer pursuant to a valid warrant in order to determine which files are described by the warrant. [citation omitted]. For few people keep documents of their criminal transactions in a folder marked ‘crime records’.”); United States v. Kaechele, 466 F. Supp. 2d 868, 888 (E.D. Mich. 2006) (“To require such a pinpointed computer search, restricting the search to an email program or to specific search terms, would likely have failed to cast a sufficiently wide net to capture the evidence sought.”); United States v. Maali, 346 F. Supp. 2d 1226, 1265 (M.D. Fla. 2004) (“[I]t has been recognized that seizure of superfluous computer files is virtually inevitable.”); United States v. Triumph Capital Group, Inc., 211 F.R.D. 31, 47 (D. Conn. 2002) (“Directories and files can be encrypted, hidden or misleadingly titled, stored in unusual formats, and commingled with unrelated and innocuous files that have no relation to the crimes under investigation. Descriptive file names or file extensions such as ‘.jpg’ cannot be relied on to determine the type of file because a computer user can save a file with any name or extension he chooses.”); United States v. Gray, 78 F. Supp. 2d 524, 529 (E.D. Va. 1999) (“[A]lthough care must be taken to ensure a computer search is not overbroad, searches of computer records ‘are no less constitutional than searches of physical records, where innocuous documents may be scanned to ascertain their relevancy.'”); United States v. Hunter, 13 F. Supp. 2d 574, 584 (D. Vt. 1998) (same); see also United States v. Cartier, 543 F. 3d 442, 448 (8th Cir. 2008) (“[W]e decline to make a blanket finding that the absence of a search methodology or strategy renders a search warrant invalid per se.”); Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001) (“Defendants [law enforcement officers named in a civil action] may legitimately have checked to see that the contents of the directories corresponded to the labels placed on the directories. Suspects would otherwise be able to shield evidence from a search simply by ‘misfiling’ it in a directory labeled ‘e-mail.'”).