Yesterday’s WaPo: Deadly Force, by April Witt, recounting the raid on the home of the Mayor of Berwyn Heights, MD. The caption under the online photo: “Acting on a mistaken drug trafficking suspicion, a SWAT team broke down their door, shot beloved pets and shattered a happy home. Was it an extreme reaction, or business as usual in America’s war on drugs?” This is the case of the mayor victimized by drug dealers sending drugs to the house to be picked up. The last five paragraphs:

They were also determined to hold the police accountable. Through a lawyer, Cheye, Trinity and Georgia have filed a notice of intent to sue the Prince George’s County Police Department and the Sheriff’s Office.

By the time, Cheye and Trinity hung ornaments on the Christmas tree in December, their sunny little brick home seemed almost as cozy as it used to, but different. Some damage couldn’t be repaired. Georgia couldn’t live in the house any longer and moved to an apartment in the area. Payton and Chase’s ashes rested in a wooden chest, topped by their framed photo.

Cheye likes to sit near the chest on winter nights, Marshall at his feet, as he reads. Often, he sits up late researching Supreme Court rulings on police searches and seizures.

He’s read the court’s decision in one 2006 case, Hudson v. Michigan, more than once. In Hudson, the court found that even when police make a clearly illegal no-knock raid, the evidence they seize can still be used against a defendant at trial.

“In other words, police can do what they did to us with impunity” Cheye concluded. “There are no consequences, not for them.”

The government failed to prove that defendant’s consent was valid. He testified that he consented because he believed it was futile to refuse, and this was not rebutted. United States v. Moore, 2009 U.S. Dist. LEXIS 5259 (E.D. Tenn. January 23, 2009):

The Court finds that though defendant expressly consented to a search of his person, the government did not meet its burden of showing that this consent was freely and voluntarily given. Defendant testified that when Officer Wallace asked defendant if he could search his person, though defendant did not want to be searched, he felt that Officer Wallace “was going to do it regardless.” [Tr. at 75.] On cross-examination, defendant elaborated in response to questions from the Assistant United States Attorney (“AUSA”):

AUSA: You are aware of what you can and can’t do, when it comes to officers with the KPD, aren:t you?

Defendant: Yes.

AUSA: So you are aware that you do have a choice?

Defendant: Not really. Not in that area. They are going to search you, regardless. It doesn’t matter.

AUSA: Regardless of what you think they can do legally, when you are posed a question by an officer “Can I search you?” you know you can answer yes or no, don’t you?

Defendant: I mean, you probably could. They still going to do it anyway.

AUSA: You could have answered no, if you wanted to, couldn’t you?

Defendant: Like I say, I didn’t have a choice.

[Tr. at 76-77.] There is nothing in the record which suggests that defendant was lying about his belief that he was going to be searched regardless of if he had answered no, and, in fact, Officer Wallace’s actions immediately prior to defendant giving consent support defendant’s testimony that he believed withholding consent would be futile.

Officer had reasonable suspicion for a patdown of the defendant for a knife based on reason to believe he had a knife and bizarre behavior. After defendant could not respond correctly to who he was, it was permissible to extend the stop to determine who he was. United States v. Horton, 2009 U.S. Dist. LEXIS 5505 (N.D. Iowa January 26, 2009).*

SCOTUS decides Arizona v. Johnson, 07-1122, today. Traffic stops are fraught with danger for the officer. A person legitimately stopped for a traffic offense can be told to get out of the car. Once outside the stopped vehicle, the driver may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. The decision was unanimous, and written by Ginsburg.

From the Syllabus:

In Terry v. Ohio, 392 U.S. 1, this Court held that a “stop and frisk” may be conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a requirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk (patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U.S. 249, 255.

While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him to get out of the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. The trial court denied his motion to suppress the evidence, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court found that, prior to the frisk, the detention had evolved into a consensual conversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review.

Held: Officer Trevizo’s patdown of Johnson did not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. Pp. 5-9.

(a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392 U.S., at 24. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a patdown is constitutional. Id., at 23-24, 27. Traffic stops, which “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U.S. 420, 439, n. 29, are “especially fraught with danger to police officers,” Michigan v. Long, 463 U.S. 1032, 1047, who may minimize the risk of harm by exercising “‘unquestioned command of the situation,'” Maryland v. Wilson, 519 U.S. 408, 414. Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U.S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110-111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U.S., at 112. Wilson, 519 U.S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on “the same weighty interest in officer safety.” Brendlin, 551 U.S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U.S., at 414. And as “the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413-414, “the additional intrusion on the passenger is minimal,” id., at 415. Pp. 5-7.

(b) The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger, but concluded that once Officer Trevizo began questioning him on a matter unrelated to the traffic stop, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. The court portrayed the interrogation as consensual, and, Johnson emphasizes, Trevizo testified that Johnson could have refused to exit the vehicle and to submit to the patdown. But Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration. See Muehler v. Mena, 544 U.S. 93. A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter with the police and move about at will. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Brendlin, 551 U.S., at 257. Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Pp. 7-9.

Driveby at a house called in to the police justified officer’s entry to check on people inside. That resulted in a plain view, a denial of consent, and then obtaining a search warrant. United States v. Wilson, 2009 U.S. Dist. LEXIS 1897 (D. Kan. January 12, 2009).*

Informant’s statement that he had seen drugs inside the defendant’s house did not have to be corroborated to show probable cause. [Indeed, it would be hard to corroborate, wouldn’t it?] United States v. Johnson, 2009 U.S. Dist. LEXIS 1961 (M.D. Ala. January 12, 2009).*

Defendant was told he was free to leave, but a drug dog was on the scene and was used on the car, and that was sufficient because there was reasonable suspicion at that point. This is not the same as holding a car while a drug dog is brought in (distinguishing Eighth Circuit authority the defense relied on). United States v. Norwood, 2009 U.S. Dist. LEXIS 1835 (D. Neb. January 12, 2009).*

Officers responding to a call of men with guns in two cars had reasonable suspicion to stop them. Finding no guns in one did not mean there were none in the other. United States v. Howard, 2009 U.S. Dist. LEXIS 2014 (E.D. Ky. January 12, 2009).*

Defendant’s wife validly consented to an entry to search for explosives. The defense argument that she was misled, even if adopted, would not carry any weight because the officers still got a valid consent. United States v. Jones, 2009 U.S. Dist. LEXIS 1798 (E.D. Tenn. January 8, 2009):

Though the Court agrees with Magistrate Judge Shirley’s determination that the officers advised Mrs. Jones that her husband was a suspect before she signed the consent form, even if it determined that she was not told that her husband was a suspect until after she gave her consent, the Court would not find Mrs. Jones’s consent involuntary. The officers suspected that there may be explosives and other materials for making pipe bombs in the house and therefore were not engaging in deceptive tactics or trickery when they told Mrs. Jones that they wanted to check the house to make sure it was safe. There is no requirement that a person giving consent to search a residence be told that a cohabitant is a suspect of a crime, only that they give consent voluntarily. Because Mrs. Jones understood her constitutional rights and understood that she did not have to give her consent, the Court finds that Mrs. Jones’s consent was voluntarily given and, accordingly, this objection is OVERRULED.

While blue lights on a police car normally are a stop, blue lights outside a bar are not. There were 25 patrons in the bar and none of them would think they were detained. Commonwealth v. Werner, 73 Mass. App. Ct. 97, 896 N.E.2d 45 (2008):

No reasonable person would have interpreted the flashing blue lights outside the bar as restraining every one of the approximately twenty-five patrons from leaving the bar. The blue lights did not convert the police officers’ exploratory questioning of the defendant or of the others present at the scene into a stop.

Search of defendant’s truck was not based on reasonable suspicion that he was involved in a murder. Nevertheless, his consent justified the search in any event. State v. Hixon, 2008 MT 365, 346 Mont. 427, 197 P.3d 918 (November 3, 2008)

There is no expectation of privacy in the sidewalk in front of a house. United States v. Turner, 2008 U.S. Dist. LEXIS 93637 (E.D. Mo. November 18, 2008)*:

Without even considering the argument that Defendant had no legitimate expectation of privacy in the property because he did not reside there, it is clear that there can be no legitimate expectation of privacy in the pathway that the officers took to get to the front door. This pathway is used by the general public to approach the house for business and social purposes and can be used in the same manner by police officers.

There is a First Amendment right of access in the public to search warrant materials. In re New York Times Co., 585 F. Supp. 2d 83 (D. D.C. November 17, 2008) (anthrax mailings case).*

A Title III warrant does not have a Rule 41 inventory because the searches are fundamentally different. United States v. Franco, 585 F. Supp. 2d 980 (N.D. Ohio November 17, 2008):

Neither § 2518(8)(d) nor Rule 41 requires anything similar with regard to the material seized through execution of an electronic search under Title III. This is so, even though the circumstances of an electronic search differ significantly from those of a conventional search.

When officers execute a conventional search, the target, if present, knows immediately that the search has occurred. Even if the target is not present, the receipt mandated by Rule 41(f)(1)(C) provides detailed notice as to what has been taken. Moreover, Rule 41(f)(1)(D) requires the officers to return the inventory mandated by subsection (B) to the issuing Magistrate Judge; that judicial officer, in turn, “must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken.” Fed. R. Crim. P. 41(f)(1)(D).

The target of a conventional search thus knows either at the time of the search or shortly thereafter that it has occurred and, even more importantly, what was taken.

Neither is true with an electronic search, which by its nature must be and remain secret until surveillance has ended. Even thereafter, § 2518(8)(d) allows the secrecy to continue for up to three months.

“The Fourth Amendment, of course, protects people against unreasonable searches and seizures. It does not protect against the fear or possibility of an unreasonable search or seizure, which is at most what Plaintiffs have alleged. The Fourth Amendment claim is therefore dismissed.” Stockham Interests, LLC v. Borough of Morrisville, 2008 U.S. Dist. LEXIS 93152 (E.D. Pa. November 12, 2008).*

The California Supreme Court holds that a police officer cannot stop an older vehicle with a temporary tag just because statistically they are more likely to be invalid tags. This would be an unreasonable use of police discretion. People v. Hernandez, 45 Cal. 4th 295, 86 Cal. Rptr. 3d 105, 196 P.3d 806
(2008); In re Raymond C., 45 Cal. 4th 303, 86 Cal. Rptr. 3d 110, 196 P.3d 810 (2008):

To accept the Attorney General’s argument would be to depart from settled California and federal precedent requiring particularized suspicion. This we decline to do. Courts from other jurisdictions also seem uniformly to have concluded that permitting officers to stop any car with temporary permits would be to countenance the exercise of the unbridled discretion condemned in Delaware v. Prouse, supra, 440 U.S. at page 663. (See United States v. Wilson (4th Cir. 2000) 205 F.3d 720; Bius v. State (Ga.Ct.App. 2002) 563 S.E.2d 527; State v. Childs (Neb. 1993) 495 N.W.2d 475; State v. Aguilar (N.M.Ct.App. 2007) 155 P.3d 769; State v. Chatton (Ohio 1984) 463 N.E.2d 1237; State v. Butler (S.C.Ct.App. 2000) 539 S.E.2d 414; State v. Lord (Wis. 2006) 723 N.W.2d 425; see also People v. Nabong (2004) 115 Cal.App.4th Supp. 1.)

Defendant’s house was trashed during the no-knock raid by a SWAT team looking for drugs and weapons. It was not shown to be unreasonable under all the circumstances. Officers have discretion how to serve a search warrant. Cook v. Gibbons, 2009 U.S. App. LEXIS 1095 (8th Cir. January 20, 2009) (unpublished):

We conclude that the law-enforcement officers, armed with a valid no-knock search warrant, initially acted reasonably on their belief that Cook was armed and dangerous, given the events that transpired with the CI the night before and morning of the search, given Cook’s history of owning a lion and having significant numbers of firearms and storing some of them within the walls in trap doors, and given that they did not see him leave his residence. In other words, it was not “unnecessarily destructive” and was thus reasonable for the breach and entry teams to have introduced OC gas and flash grenades, apparently breaking two windows in the process, before ramming a side door and thereby damaging latches. See Hummel-Jones v. Strope, 25 F.3d 647, 650, 653 (8th Cir. 1994) (how best to proceed in performing search is generally left to discretion of officers executing warrant, but even valid warrants must be executed in reasonable manner); United States v. Baker, 16 F.3d 854, 855-56 (8th Cir. 1994) (officers’ use of distraction stun device, without knocking and announcing, was needed to effect safe entry and therefore reasonable where officers possessed information that front door was barricaded and that two Doberman Pinschers were inside); Ginter, 869 F.2d at 388-89 (starting fire to force suspect, reasonably believed to be armed and dangerous murderer, out of house was not unnecessarily destructive). Further, Cook did not refute defendants’ evidence that once the residence was breached, it took the entry team an additional thirty minutes to determine no one was present, and we conclude that an objectively reasonable officer, presented with the facts of this situation, could have thought it necessary to tear through the ceiling to access the attic, to use additional diversionary devices in the attic, and to make a hole in one wall to be sure that no persons or weapons were present.

A private search of a videotape that showed the defendant engaged in sexual conduct with two young girls led to the police being given the videotape, and they could view it without a warrant. State v. Robinson, 187 N.C. App. 795, 653 S.E.2d 889 (December 18, 2007):

While there appears to be no settled case law in North Carolina directly on point regarding the scope of a search involving the viewing of a videotape, we agree with the positions of the Fifth and Eleventh Circuits of the United States Court of Appeals, that “the police do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than did the private parties.” United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001) (finding no constitutional violation where the police viewed more images stored on a computer disc than did the private searcher); United States v. Simpson, 904 F.2d 607, 610 (11th Cir. 1990) (holding the search of a box and viewing of videotapes by federal law enforcement agents “did not exceed the scope of the prior private searches for Fourth Amendment purposes simply because they took more time and were more thorough than the Federal Express agents”). Here, Mr. Young’s viewing of the videotape did not violate the Fourth Amendment because he was a private party not acting under the authority of the State. Mr. Young’s viewing of the videotape effectively frustrated defendant’s expectation of privacy as to the contents of the videotape, and thus the subsequent viewing of the videotape by Detective Thompson did not violate defendant’s rights under the Fourth Amendment. While Mr. Young stated that he had only viewed “portions” of the videotape, his viewing “opened the container” of the videotape and the subsequent viewing of the entire videotape was not outside the scope of Mr. Young’s initial “search.” Runyan, 275 F.3d at 465.

Defendant was a passenger with a person officers knew there was a warrant for, so they stopped the car. After the driver was arrested, the officers got the defendant out of the car and questioned him because they knew he had priors for drugs. He consented to a search of his apartment, and that led to finding identity theft paraphernalia. After his suppression hearing [apparently Brendlin was decided] on appeal, the state conceded he had standing because of his own stop and questioning after the purpose of the stop was complete with the arrest of the driver on old warrants. State v. Parra, 941 A.2d 799 (R.I. 2007).*

Possession of cash is not probable cause for a vehicle search, but it is a factor to consider in the totality of circumstances. State v. Fitzgerald, 286 Kan. 1124, 192 P.3d 171 (2008). After going through all the factors of the totality and finding them weak:

When the totality of all of these circumstances is considered, as it must be, we conclude that the State did not carry its burden of demonstrating the existence of probable cause to support Thatcher’s initial search of the truck. Of the factors it cites, most are neutral or helpful to the defense, tending to diffuse suspicion rather than enhance it. Those factors that do contribute to probable cause are weak. The district court should not have relied on the probable cause plus exigent circumstances exception to the warrant requirement to admit the evidence derived from the initial search of the truck.

Officer at least had reasonable suspicion that the defendant was violating the traffic laws, even though it turned out that the defendant didn’t. The stop being justified, everything else flowed from that. State v. Applegate, 2008 UT 63, 194 P.3d 925, 612 Utah Adv. Rep. 28 (2008).*

Kansas holds that Muehler v. Mena cannot be applied to a traffic stop, following State v. Smith, 286 Kan. 402, Syl. P 2, 184 P.3d 890 (2008). Questions of the passenger about their travel plans were too intrusive. State v. Morlock, 40 Kan. App. 2d 216, 190 P.3d 1002 (August 29, 2008):

We are persuaded by the substantial legal authority from other jurisdictions that Cocking was permitted to ask O’Kelly where he was traveling from. This routine question was reasonably related to the scope of the traffic stop, and the inquiry did not unreasonably alter the nature or the duration of the stop. Although the question was not directly related to the original reason for the stop, i.e., failing to signal when changing lanes, the question allowed Cocking to determine if O’Kelly was on the proper course, and the question did not unreasonably delay O’Kelly or infringe upon his rights.

However, we disagree with the State that Cocking was permitted to ask O’Kelly how long he had been in Phoenix and what he was doing there. We acknowledge that similar questioning has been upheld by courts in other jurisdictions. However, we conclude these were not routine questions about O’Kelly’s travel plans, and the questions were not reasonably related to the scope of the traffic stop. Instead, the questions were designed to allow Cocking to probe into O’Kelly’s personal business in the hope of uncovering suspicious activity.

Such an intrusion cannot be justified by reasoning that the motorist is not legally obligated to answer the questions. This analysis blurs the distinction between a voluntary encounter and a traffic stop, which is an investigatory detention. In a voluntary encounter, a law enforcement officer may approach an individual and ask questions without constituting a seizure provided the individual is free to leave, but the officer cannot force the individual to answer. Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991); McKeown, 249 Kan. at 509. However, a traffic stop constitutes a seizure, and the motorist is not free to leave while he or she is being temporarily detained and questioned. The motorist is not allowed to pick and choose which questions must be answered. Until the law enforcement officer conveys to the motorist that he or she is free to refuse the requests or otherwise end the encounter, the motorist is expected to cooperate with the investigation and to answer all questions posed by the law enforcement officer. This is why it is essential that law enforcement questioning during a traffic stop be reasonably related in scope to the circumstances which justified the initial interference.

No suppression hearing was held and the trial court did not rule on the question of defendant’s stop. Nevertheless, the testimony at trial supported it. State v. Ford, 2008 Ohio 4373, 2008 Ohio App. LEXIS 3667 (10th Dist. August 28, 2008)* (shooting call at 4:30 am, and defendant and another were the only people around; defendant was holding something to secrete it and was acting nervous; that was reasonable suspicion).

Driving and reasonable suspicion of intoxication:

State v. Penix, 2008 Ohio 4050, 2008 Ohio App. LEXIS 3427 (11th Dist. August 8, 2008):

[*P11] In Evans, we set forth a non-exclusive list of factors to be considered when determining whether a police officer has a reasonable suspicion of intoxication justifying the administration of field sobriety tests. That list, on which no one factor is dispositive, consists of the following:

[*P12] “(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (Whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or more significantly, on the suspect’s person or breath; (8) the intensity of that odor, as described by the officer (‘very strong,’ ‘strong,’ ‘moderate,’ ‘slight,’ etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given. All these factors, together with the officer’s previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably.” Id. at f.n.2; accord, Reed, supra, at P10-11; Brickman, 2001 Ohio App. LEXIS 2575, at *6-*7.

Erratic driving and smell of alcohol or admission of drinking is reasonable suspicion. State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008).*

Officers lacked reasonable suspicion using a trap-and-trace order to tail a cellphone like it was a beeper a day after a robbery. There was only a hunch as to defendant. Herring would not be applied to salvage this search because it was all tenuous. United States v. Thomas, 2009 U.S. Dist. LEXIS 4389 (W.D. Wis. January 20, 2009):

In any event, the deputies obtained a trap-and-trace order from the state court that allowed them to attempt to locate the telephone and its holder. The day after the robbery, using technology that either is prosaically old school (the court’s view) or “voodoo” (defense counsel’s view), a caravan of law enforcement officers led by a DCI tech agent chased the telephone northeast up Highway 151 to Fond du Lac. Using the target telephone essentially as a “beeper,” the tech agent was able to pinpoint its location to a pump island at a gas station. Considering that the agent completely circled the pump to verify his readings, there can be little doubt that he had the right location.

. . .

Even so, it would not have been unreasonable at this juncture to initiate a police-citizen encounter to explore a bit further. The deputies were in warm pursuit of armed bank robbers and had a strong hunch/weak reason to suspect that the men at the gas station were associated with the bank robbers. Returning to the two-variable calculus employed by the Seventh Circuit for Terry stops, an approach commensurate to the weakness of the evidence perhaps could have been deemed reasonable. But the deputies, for their own safety, initiated a highly intrusive full felony stop of the two cars. Under Tilmon, this is not necessarily a constitutionally unreasonable approach, but there are sufficient factual differences here to question the appropriateness of the tactics used. This was not hot pursuit from the robbed bank during which the suspects undoubtedly still would have been armed, hypervigilant and potentially trigger-happy. The bank robbery had occurred over 24 hours earlier and 75 miles southwest, and there was no actual evidence that any of the four men in these two cars had participated in the robbery or that they currently were armed. The evidence linking these four men to a crime was that one of these men possessed a cell phone that had called two of the suspected robbers (and a third party) 17 times in the two days prior to the robbery.

. . .

But there’s a final consideration: notwithstanding the overzealousness of the deputies, is this a case in which it would be unreasonable to apply the exclusionary rule? “Paradigm shift” is a trite and often meaningless phrase, but it might be an apt description of the Supreme Court’s recent curtailment of the exclusionary rule as illustrated by Herring v. United States and Hudson v. Michigan, 547 U.S. 586 (2006). Here’s the new rule:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the judicial system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.

Herring, 2009 WL 77886 at *7.

The parameters of this new iteration will be determined over time, and perhaps this case will be part of the vanguard. After all, how can you fault tenacious police work that results in the capture of a suspected armed bank robber, even if this capture is the result of some guesses and gut feelings? What sort of police behavior would be deterred by telling the deputies that they cannot use the evidence that they seized from Thomas at the gas station?

But this entire phase of the investigation was based on a miscommunication of a material fact between the investigating detectives and the misstatement of that material fact to the state court in support of the trap-and-trace application. There is no evidence that this was deliberate and I don’t doubt that the detectives were putting forth best efforts in good faith in a fast-evolving investigation involving a gang of armed bank robbers. But switching Wilson’s statement from “It was not Liggons’s phone” to “it was Liggons’s phone” in the trap-and-trace application flipped a critical fact in favor of the government. It also led to the detectives significantly overplaying their hand when they stopped, arrested and searched Thomas in the absence of probable cause or even reasonable suspicion.

New law review article: Jed Rubenfeld, The End of Privacy, 61 Stan. L. Rev. 101 (2008). A fascinating article. From the Introduction, which is tantalizing about what comes:

How fragile a thing, law.

Not long ago, the notion that Americans could be seized off the streets, arrested, and jailed without probable cause might have seemed laughable. The power to incarcerate on mere suspicion or executive say-so belonged to dictatorships. “We allow our police to make arrests only on ‘probable cause,’” we used to be told; “[a]rresting a person on suspicion, like arresting a person for investigation, is foreign to our system.”

But in 2002, the President of the United States claimed and exercised the power to designate an individual, including an American citizen seized on American soil, an “unlawful enemy combatant”—and to imprison him on that basis, without probable cause and with limited if any judicial review.

Not long ago, it was possible to believe that the government could intercept Americans’ telephone calls only with probable cause and, absent exigent circumstances, judicial authorization. As late as 2004, the President declared:

Now, by the way, any time you hear the United States Government talking about wiretap, it requires—-a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

These statements, it turned out, were not true. As the President would later admit, he had in 2002 personally but secretly authorized (and then repeatedly reauthorized) the National Security Agency (NSA) to intercept Americans’ telephone calls and e-mail messages in certain circumstances without probable cause and without a court order. At the same time, the NSA reportedly procured from major telecommunications companies access to communications data on tens of millions of people unsuspected of any crime.

This Article is about the Fourth Amendment. It is an attempt to recover that amendment’s core meaning and core principles.

Why has the Fourth Amendment, despite explicitly governing seizures of the person, played so minimal a role in the judicial response to the “unlawful combatant” detentions? What allows courts to find no Fourth Amendment search or seizure when the government obtains records from telephone companies or Internet service providers showing whom you have
communicated with and when and for how long?7 What allowed the Sixth Circuit last summer to dismiss a challenge to the NSA’s covert wiretapping on grounds implying that the program might never be reviewed under the Fourth Amendment at all?8 What flaw, in short, in modern doctrine has made the Fourth Amendment so irrelevant to the present search and seizure debates—-and how could it reclaim its relevance? This Article tries to answer these questions.

At the heart of search and seizure law today, there is a kind of doctrinal black hole, known as the “reasonable expectation of privacy.” This concept, the “touchstone of Fourth Amendment analysis,” has never been able to do the work required of it.

. . .

In this Article, I will argue that Fourth Amendment law should stop trying to protect privacy. The Fourth Amendment does not guarantee a right of privacy. It guarantees—if its actual words mean anything—a right of security.

Despite privacy’s triumph, the right “to be secure” that the Fourth Amendment actually protects has never died. It still flickers in the case law and scholarship, even if without much doctrinal function and even if unsatisfactorily defined. By revitalizing the right to be secure, Fourth Amendment law can vindicate its text, recapture its paradigm cases, and find the anchor it requires to stand firm against executive abuse.

When defendant gives consent, the police must timely act on it. If they don’t, it evaporates. Johnson v. State, 995 So. 2d 1011 (Fla. App. 1DCA October 24, 2008):

[T]he illegal detention of Appellant, after he had given consent but before the police exercised the privilege extended by the consent, created a taint which could be overcome only by a sufficient break in the chain of illegality. The burden to establish this break rests with law enforcement. There is no evidence that such a break occurred. Therefore, the search must be found nonconsensual, and the evidence improperly seized. The trial court erred in denying Appellant’s motion to suppress.

Grow operation allegations were not stale because of the allegations of an ongoing operation. United States v. Mims, 567 F. Supp. 2d 1059 (D. Minn. 2008) (“While it was possible that the grow operation, including the plants, equipment and set-up, had been destroyed or removed from the premises between September or October of 2007 and January 2008, given that the venture had been going on for a lengthy period of time, it was just as likely that it would still be present on the premises three months later.”).

The Sixth Circuit parses a Fourth Amendment claim into its parts to find that a civil case can survive a Heck bar because of the good faith exception or inevitable discovery making the seized evidence admissible anyway. Harper v. Jackson, 293 Fed. Appx. 389 (6th Cir. August 12, 2008) (unpublished).* Thus, the good faith exception can become a weapon for the plaintiff:

Although Heck bars § 1983 Fourth Amendment claims where the contested search produced the only evidence supporting the conviction and no legal doctrine could save the evidence from exclusion, see, e.g., Ballenger v. Owens, 352 F.3d 842, 847 (4th Cir. 2003); Covington v. City of New York, 171 F.3d 117, 123 (2d Cir. 1999), the case before us is distinct. If Harper succeeds on his § 1983 claims, his conviction would not necessarily be impugned because both the doctrine of inevitable discovery and the Leon good faith exception apply. See United States v. Leon, 468 U.S. 897, 913 (1984) (adopting a “good faith” exception to the exclusionary rule where police seize evidence in reasonable reliance on a warrant issued by a neutral magistrate).

Under the inevitable discovery doctrine, illegally obtained evidence is not subject to the exclusionary rule “if the government can prove by preponderance that the evidence inevitably would have been acquired through lawful means.” United States v. Kimes, 246 F.3d 800, 804 (6th Cir. 2001) (quoting United States v. Kennedy, 61 F.3d 494, 497 (6th Cir. 1995)). In asking whether the inevitable discovery doctrine applies, we examine the circumstances “as they existed at the instant before the unlawful search” and ask “what would have happened had the unlawful search never occurred.” Kimes, 246 F.3d at 804 (quoting United States v. Eng, 971 F.2d 854, 861 (2d Cir. 1992)). We apply the rule in two scenarios: (1) when an “independent, untainted investigation … inevitably would have uncovered the same evidence”; or (2) when “other compelling facts [exist] establishing that the disputed evidence inevitably would have been discovered.” Kennedy, 61 F.3d at 499. Here, the fact that a Wal-Mart security employee notified the police of Harper’s purchase establishes that even if we were to conclude that the officers illegally detained Harper, success on the § 1983 claim would not necessarily impugn his conviction because the resulting discovery of the marijuana and drug paraphernalia would have inevitably occurred regardless of the detention. See Heck, 512 U.S. at 487 n.7.

Likewise, even were Harper to succeed on his claim that the warrant to search his home was without probable cause, that result would not necessarily impugn his conviction because even if the warrant were unlawfully obtained, the police acted in good faith reliance on the warrant as issued by a neutral magistrate, and thus the evidence could have been admitted to secure Harper’s conviction. See Leon, 468 U.S. at 913.

Officer’s involvement in a landlord tenant dispute where there was no court order for removal that led to removal of plaintiff from the premises stated a Fourth Amendment claim. Bridgeforth v. Khadijah, 584 F. Supp. 2d 108 (D.D.C. November 3, 2008).*

Brendlin does not afford a defendant standing to challenge a search by consent of the vehicle he was stopped in. He denied any connection to the vehicle and the gun in the front seat. Therefore, the case is controlled by Rakas. United States v. Allison, 2008 U.S. Dist. LEXIS 97270 (W.D. N.C. November 12, 2008).*

A government blocking of assets by Office of Foreign Asset Control (OFAC) qualifies as a Fourth Amendment seizure. The lack of case law only shows that nobody has raised the issue before. Al Haramain Islamic Found. v. United States Dep’t of the Treasury, 585 F. Supp. 2d 1233 (D. Ore. November 6, 2008):

As an initial matter, the government’s assertion that the Supreme Court has never considered a blocking order to be a Fourth Amendment violation is unpersuasive; I note that no litigant asked it to do so. Furthermore, the cases on which the government relies, IARA and Holy Land Found., cite inapplicable precedent in concluding freezing of assets is not a seizure under the Fourth Amendment. Both courts rely on Tran Qui Than v. Regan, 658 F.2d 1296, 1304 (9th Cir. 1981), D.C. Precision, Inc. v. United States, 73 F. Supp. 2d 338, 343 n.1 (S.D.N.Y. 1999), Can v. United States, 820 F. Supp. 106, 109 (S.D.N.Y. 1993), and others, all of which held that freezing assets was not a “taking” under the Fifth Amendment. The Fourth Amendment imposes a lower threshold than does the Fifth Amendment, however. Generally speaking, a blocking order would constitute a violation of the Fifth Amendment only if it resulted in an appropriation of property for the government’s use or, if it could be deemed a “regulatory” taking, eliminated “all economically valuable use” of the property. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 323, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002) (summarizing takings precedent).

Additionally, I do not agree with the government that Tran Qui Than’s definition and application of the statutory term “seizure” in the TWEA ends the matter. The court concluded that a blocking of assets in that case “merely suspend[ed] indefinitely the right to transfer” funds, and were not “‘conveyed, transferred, assigned, delivered or paid’ or otherwise seized” by the government. 658 F.2d at 1301 (quoting 50 U.S.C. App § 9(a)). The court did not apply the Fourth Amendment standard of “meaningful interference with a possessory interest” and, as a result, the case is not of assistance. Accordingly, the government is wrong to equate a seizure with the transfer of property to the government.

The government’s blocking order is a seizure of property. Szubin himself describes the process as “depriving the designated person of the benefit of the property, including services, that might otherwise be used to further ends that conflict with U.S. interests.” Szubin Decl. P 11. More specifically, here for example, OFAC sent a notice to the Jackson County Recorder of Deeds notifying the clerk that AHIF-Oregon’s real property is “blocked pending investigation by the order of the United States Treasury Department” and prohibiting “[a]ny and all transactions” including “the sale and conveyance of title or deed” unless “specifically licensed” by OFAC. Szubin Decl. Attach. C. Indeed, as Szubin explains more generally, “The blocking notice provided to AHIF-Oregon on February 19, 2004, explained that, pursuant to E.O. 13224 and IEEPA, any transfer, withdrawal, export, payment or other dealing in AHIF-Oregon’s blocked assets was prohibited without OFAC’s prior authorization.” Szubin Decl. P 73. It is apparent that the assets are blocked by order of the government and remain under its control. Even a temporary deprivation of property, as a blocking is, constitutes a meaningful interference with property and qualifies as a “seizure” for purposes of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (holding luggage for 90 minutes constituted seizure); Flores v. United States, 551 F.2d 1169, 1175 n. 6 (9th Cir. 1977) (seizure “can ripen into a permanent taking”).

Although the blocking constituted a seizure, such an action is constitutional if it is reasonable. Courts look first to whether the seizure would have been unreasonable at the time the Fourth Amendment was framed. If historical practices provide no insight, “we have analyzed a search or seizure in light of traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Virginia v. Moore, 128 S. Ct. 1598, 1604, 170 L. Ed. 2d 559 (2008) (internal quotations omitted). One purpose of the “reasonableness” inquiry is to impose limitations

upon the exercise of discretion by government officials … to safeguard the privacy and security of individuals against arbitrary invasions …. [T]he reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against an ‘objective standard,’ whether this be probable cause or a less stringent test.

Delaware v. Prouse, 440 U.S. 648, 654, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) (internal quotation and citation omitted).

The government devotes one paragraph to the question of reasonableness, asserting without citation to any law that national security and foreign policy considerations make the seizure reasonable. Neither party addresses the standard set forth in Virginia v. Moore. Accordingly, I request additional briefing on the following issues: …

Consent to search a computer for evidence that defendant was a victim of identity theft was a ruse to look at his hard drive for child pornography. The search thus exceeded the consent. United States v. Richardson, 583 F. Supp. 2d 694 (W.D. Pa. October 31, 2008):

Quite simply, the agents in the case sub judice made an assumption that the Defendant’s computers would contain child pornography because the evidence from Operation Emissary indicated that the Defendant made two failed attempts to access “ILLEGAL.CP”. Their assumption proved correct, but only after consent to search the computers was obtained in order to look for evidence of unspecified “[‘illegal’] credit card activity over the Internet”, not images of child pornography or any images for that matter. Kilpatrick did not look for catalogued evidence of Internet activity as stored upon the two personal computers. Kilpatrick searched for images, images that could not have been on the computers as a result of the two known failed attempts to access a child pornography Web site. These failed attempts were the basis for the agents’ vague and unspecified Internet activity described to the Defendant and his wife. The search for images proceeded to look for evidence of another instance of crime different from the failed attempts to access the “ILLEGAL.CP” Web site. The search that was conducted was not only outside of the scope permitted by the Defendant, but also outside of the scope of what the agents were aware of after a review of the evidence received from Newark ICE.

. . . A search for images of child pornography is beyond the scope of the vagaries of the “[‘illegal’] credit card activity over the Internet” and seeks one thing, the presence of child pornography that the agents knew was not related to the information of the January and February 2006 attempts presented to Lieb by ICE Newark. This search for images was beyond the scope of the consent granted. Searching for images of child pornography relates to a separate crime, one unrelated to the ruse which was presented and for which the ruse did not provide a basis for the consensual search. Lieb and the other agents thus used the vagueness of their request based upon evidence of an undisclosed, attempted crime to obtain a voluntary consent in order to search for evidence of a separate crime, one for which they did not believe the Defendant was a victim, but in fact the sole perpetrator. The search for images of child pornography was far afield from the voluntary consent to search for evidence of “[‘illegal’] credit card activity over the Internet”, activity which unbeknownst to the Defendant was the two failed attempts to purchase access to the “ILLEGAL.CP” Web site.

In a knock-and-talk, responding to a request to search the premises, the defendant said “Come on in” and opened the door further and stepped back. This was consent. Payton v. Commonwealth, 2008 Ky. App. LEXIS 370 (December 5, 2008).*

Trial court suppressed as a Fourth Amendment violation defendant’s cellphone call that was overheard on the Intoxilyzer room surveillance camera with sound. Since the defendant did not raise that ground in the trial court, the order is vacated and remanded. State v. Dominique, 2008 ME 180, 960 A.2d 1160 (December 9, 2008).*