“Viewed objectively, Keiper’s statement concerning the firearm’s presence under the porch and the need for a shovel to retrieve it, and her later indication of which tire the firearm was in and her request that the officers return it to Larry, communicated not merely a statement of the firearm’s present location, but also her voluntary consent to its removal.” United States v. Keiper, 2008 U.S. Dist. LEXIS 80710 (D. Maine September 30, 2008).*

Defendant was an overnight guest at a couple’s house. The lady of the house could consent to a search of the entire premises, including the room that defendant was staying in. United States v. Oswalt, 2008 U.S. Dist. LEXIS 80564 (S.D. Ind. October 10, 2008).*

Defendant was subjected to a wideranging cross-examination at his suppression hearing, but it was all legitimate and went to his credibility. Also, he knew it was going to be extensive before he testified. Some of that ended up being used to impeach him when he testified at trial. It was not a violation of the Simmons rule and did not unconstitutionally impede his right to testify. United States v. Vaughn, 2008 U.S. Dist. LEXIS 79830 (E.D. Cal. September 2, 2008):

The defendant was warned, by one of the prosecutors, the day before taking the stand that government counsel anticipated extensive cross-examination. When defense counsel questioned how the government’s cross-examination could possibly span hours longer than his direct, the prosecutor explained, and the Court agreed, that matters relevant to the defendant’s credibility would be proper subjects of inquiry. Despite this warning, the defendant chose to take the stand knowing that, although his testimony in support of the suppression motion would not be admitted against him at trial on the issue of guilt, Simmons v. United States, 390 U.S. 377, 394 (1968), it would be admissible to impeach his credibility if he offered testimony inconsistent with his prior testimony. As the Ninth Circuit explained in United States v. Beltran-Gutierrez, 19 F.3d 1287 (9th Cir. 1994), Defendant:

[W]as not forced to testify at his suppression hearing. He did so voluntarily in order to preclude the use of incriminating evidence at his trial. Thus, he did not face ‘the cruel trilemma of self-accusation, perjury or contempt.’ Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 … (1964). [Defendant] cites no authority to support the proposition that a defendant’s decision to take the stand to protect a constitutional right precludes the use of his testimony for purposes of impeachment. The Supreme Court has instructed us that “every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.” Harris v. New York, 401 U.S. 222, 225 … (1971).

Beltran-Gutierrez, 19 F.3d at 1291. Contrary to his assertion, the defendant’s right to testify at trial was not impeded by the answers he gave under oath in support of his motion to suppress. Instead, those answers merely exposed him to impeachment if his trial testimony was inconsistent with his testimony at the suppression hearing. The defendant cannot complain that his strategic choice to testify at the suppression hearing enabled the government to obtain “information that tended to incriminate” him or “prejudice his defense for trial.” Defendant’s Motion at p. 13:10-11.

Defendant claimed he was lost and drove up to the gate of the Pensacola Naval Air Station for directions. The guard at the gate detected alcohol and got the defendant out for a field sobriety test. Defendant may not have intended to enter the base, but, by presenting himself at the gate after having passed several signs saying that cars were subject to search as he approached, he was subject to being searched at that point. United States v. Rountree, 2008 U.S. Dist. LEXIS 80456 (N.D. Fla. September 17, 2008).*

Plaintiff who had been barred from a county courthouse had limited permission to enter, this time for a police union meeting. He was briefly detained at the door until his ability to enter was verified, and this did not violate his Fourth Amendment rights. Graham v. Hoffer, 2008 U.S. Dist. LEXIS 80421 (M.D. Pa. October 10, 2008).*

On Tuesday, the Supreme Court hears argument in Pearson v. Callahan, 07-751. SCOTUS Blog entry here.

The issue:

Whether, for qualified immunity purposes, police officers may enter a home without a warrant on the theory that the owner consented to the entry by previously permitting an undercover informant into the home.

In addition to the questions presented, the Court directed the parties to brief and argue the following question: “Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?” Qualified immunity is a separate question from the merits of the Fourth Amendment claim, and it can lead to odd results on whether the Fourth Amendment was violated.

Petitioner’s brief here, Respondent’s brief here, and reply brief here.

“[A] threat to officer safety is a prerequisite for a search of a vehicle subject to an investigatory detention” under Long. United States v. Ogle, 2008 U.S. Dist. LEXIS 80102 (E.D. Tenn. October 9, 2008)*:

The evidence demonstrates that a full custodial arrest had not taken place prior to the arrest of the vehicle. [See, e.g., Doc. 17 at 14 (indicating that defendant was arrested subject to the investigation); id. at 22 (indicating that defendant was secured but not under full arrest)]. Accordingly Terry and Long are apposite. Under these standards, the court finds that the search of the vehicle was lawful. When the defendant initially exited his car and approached Officer Romer, Officer Romer observed blood on defendant’s pants and that defendant was wearing a knife sheath. Indeed, Officer Romer testified that defendant had blood “all over him.” [Doc. 17 at 32]. These facts clearly gave Officer Romer at a minimum reasonable suspicion that defendant was armed and dangerous, such that a Terry patdown of defendant was warranted.

In Nellums v. Nevens, 2008 U.S. Dist. LEXIS 80044 (D. Nev. September 5, 2008)*, a habeas case on a failure to raise a Fourth Amendment claim, the court applies AEDPA and Strickland and never cites Stone to deny relief.

Smell of marijuana on a person did not justify a search of the house defendant was staying in as a guest. State v. Evans, 2008 Ohio 5253, 2008 Ohio App. LEXIS 4402 (8th Dist. October 9, 2008).*

IAC claim fails where defendant cannot show that the suppression motion not filed would fail. State v. Taylor, 2008 Ohio 5238, 2008 Ohio App. LEXIS 4412 (9th Dist. October 8, 2008).*

Affidavit did not just show that defendant was a drug dealer and relying on that alone to show nexus. Here, there was more. United States v. Feagan, 2008 U.S. Dist. LEXIS 80014 (E.D. Tenn. July 1, 2008)*:

It is not necessary for this Court to conclude that the Sixth Circuit has established a firm rule that if reliable information indicates a defendant is a drug dealer, then probable cause always exists to search the drug dealer’s residence. The affidavit in this case presents more. The affidavit establishes Defendant’s involvement in an ongoing and continual operation, not a discrete drug transaction. Defendant’s argument that there is no evidence of a connection between his residence and his “generalized drug dealing” also fails because the argument minimizes the additional fact that a law enforcement officer articulated his belief, based on experience and training about the trends, methods and habits of drug dealers, that certain evidence of drug trafficking is typically maintained in the homes of drug dealers. Given the background and experience of TFO Wigley, and the information provided in his affidavit about the trends, habits and methods of drug dealers, it was entirely reasonable for the issuing magistrate to conclude Defendant, as a drug dealer engaged in continual and ongoing illegal drug operations, would possess fruits or instrumentalities of drug trafficking in his residence.

The city argues that motels are “closely regulated businesses” under Burger, but it probably is not, and the court does not have to reach that. The real issue is whether there is a reasonable expectation of privacy in a hotel register that was shown to the police under a city ordinance, and there is not. Patel v. City of Los Angeles, 2008 U.S. Dist. LEXIS 78914 (C.D. Cal. September 5, 2008).*

Plaintiff’s strip search followed the USMS policy on strip searches. The court declines to adopt a per se rule because of Second Circuit precedent that a person charged with a violent crime may be strip searched. It is, however, relevant. Here, the strip search was reasonable under the circumstances. Harriston v. Mead, 2008 U.S. Dist. LEXIS 79001 (E.D. N.Y. September 30, 2008).*

Franks claim fails because the officer received information and sought to corroborate it before putting it in the affidavit. [That is what he is supposed to do.] United States v. Sherman, 2008 U.S. Dist. LEXIS 79073 (E.D. Mo. October 7, 2008):

Because suppression pursuant to Franks typically deals with reckless or intentional omissions from an affidavit, the Court is not convinced that Officer Buehrle’s underlying investigation can provide a legal basis for suppression of evidence under Franks. See United States v. Curtis, 965 F.2d 610, 613 (8th Cir. 1992) (“Where a criminal defendant seeks suppression of evidence by challenging the veracity of information contained in the warrant affidavit, the only relevant inquiry for the district court is whether the warrant affiant knowingly, deliberately or recklessly included false statements in the warrant affidavit.”) (emphasis added) (citing Franks, 438 U.S. at 171). Nevertheless, even assuming that an officer’s underlying investigation can serve as a basis for a Franks violation, both before and after receiving information about Ms. Schellert, Officer Buehrle made considerable efforts to corroborate her allegations and, in fact, did corroborate much of it. The Court finds that Officer Buehrle was not reckless and did not act in bad faith during his investigation. (emphasis in original)

So, the end result is the focus; how it got there might have some relevance, but it is not determinative.

Case of police officer’s assistance in a forced catheterization at a doctor’s request entitled the officer to qualified immunity. Meyer v. Woodward, 2008 U.S. Dist. LEXIS 79358 (E.D. Mich. October 9, 2008).*

Search warrant in a gambling case that was limited to computers used to register bets was sufficiently particular and not overbroad. United States v. Gianelli, 2008 U.S. Dist. LEXIS 79460 (D. Mass. October 8, 2008).*

Plaintiff adult establishment challenged entries, sort of viewing them as administrative searches which they may not be. Here, however, plaintiff did not show his standing. Garter Belt, Inc. v. Buren, 2008 U.S. Dist. LEXIS 79227 (E.D. Mich. October 8, 2008):

Although the Supreme Court has recognized an exception to the warrant requirement when the target of the search is a “closely regulated” industry, warrantless searches of even closely regulated businesses must be “carefully limited in time, place, and scope.” New York v. Burger, 482 U.S. 691, 700-03, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987). One district court has held that while there is a “narrow exception to the warrant requirement for administrative searches conducted in ‘closely regulated’ industries, sexually oriented businesses do not quality as highly regulated industries.” J.L. Spoons, Inc. v. City of Brunswick, 49 F. Supp. 2d 1032, 1040 (N.D. Ohio 1999). “[B]ecause sexually oriented businesses enjoy a degree of First Amendment protection, the government probably could not ‘closely regulate’ them … without running afoul of the First Amendment.” Id. A court in this district has recently held that one city’s cabaret ordinance “is likely to violate the Fourth Amendment due to the requirement that an owner ‘open every portion of any cabaret or club cabaret for inspection.” Top Flight, Inc. v. City of Inkster, 2007 U.S. Dist. LEXIS 12892, 2007 WL 643897 (E.D. Mich. 2007) (emphasis added by the court) (quoting Inkster, Mich., Cabaret Ordinance § 113.202 (2006)).

Nevertheless, “a plaintiff is required to establish injury in fact as to each provision challenged.” Prime Media, 485 F.3d at 350. Garter Belt is bringing a Fourth Amendment challenge to section 22-404(d). The Spoons court “assume[d]” standing, 49 F. Supp. at 1040, and the Top Flight court did not address the question of standing. But Garter Belt has shown no injury or imminent threat of injury under section 22-404(d) and therefore has no standing to challenge it. The Court will dismiss Garter Belt’s Fourth Amendment challenge.

The National Security Agency routinely spied on soldiers’, aid workers’, and journalists’ intimate calls back home while they were in Iraq.See NYTimes, Washington Post, and LATimes. From WaPo:

The allegations, by two former military intercept officers assigned to the National Security Agency, include claims that U.S. spies routinely listened in on intimate conversations and sometimes shared the recordings with each other. At least some of the snooping was done under relaxed eavesdropping rules approved by the Bush administration to facilitate spying on terrorists.

And nobody thought that this would not happen if the NSA were allowed to spy on American’s telephone calls? When I was in West Africa in trial, I just assumed I was being listened to when I called home. You had to. Now we see why.

Yesterday’s cases, from SCOTUSBlog:

The transcript of today’s argument in Herring v. United States (07-513) with links to the briefs, is now available here. The issue in Herring: Whether the exclusionary rule should apply to evidence seized incident to an arrest unlawful under the Fourth Amendment due to erroneous information negligently provided by another law enforcement agency.

The transcript of today’s argument in Arizona v. Gant (07-542) with links to the briefs, is now available here. The issue in Gant: Whether, under New York v. Belton (1981), police may conduct a warrantless search of a car if its recently arrested occupant poses no threat to officer safety or preservation of evidence.

More to follow…

A warrant for “illegal pictures” justifies a search of a laptop computer because “a laptop computer is as likely a place to find photographs as a photo album.” United States v. Pontefract, 2008 U.S. Dist. LEXIS 78084 (W.D. La. October 1, 2008):

Whether it was proper or not for the state court judge to issue the state search warrant, based on the information contained in the application and affidavits before her, is not an issue before this Court. What is before this Court is the issue of whether the state search warrant was sufficiently particularized to include the laptop computer as an item to be searched and seized. This Court agrees with the magistrate judge that it was. This Court finds that, in today’s digital world, a laptop computer is as likely a place to find photographs as a photo album. Indeed, had the officers conducting the search located a photo album in the trailer from which photographs could not be removed without damaging or destroying the photo album or the photos themselves, seizure of the photo album and a subsequent search would have been permissible. United States v. Pontefract, 2008 U.S. Dist. LEXIS 78084 (W.D. La. October 1, 2008):

Moreover, defendant is not arguing the officers impermissibly searched, say, defendant’s email or financial information, which might also have been contained on the lap top files. Indeed, under the state search warrant, such a search would not have been permissible. Rather, the officers conducting the search were searching for photographs, and they accessed that portion of the defendant’s computer — the drives and/or folders where such photographs were stored — in executing the warrant. Defendant has cited no statutory or jurisprudential authority for the contention that a warrant authorizing a search of a home or trailer for photographs of child pornography, otherwise supported by probable case, must distinguish between digital and paper photographs in order to satisfy the particularity requirement for the issuance of the warrant.

Officer during an inventory of a car shook an apparent aerosol can because cans with false bottoms were commonly used to hide things. The officer felt something moving inside this one that was not liquid, so he opened it. The can was not being subjected to an inventory search when it was searched; it was a criminal evidentiary search. State v. Seals, 2008 Ohio 5117, 2008 Ohio App. LEXIS 4318 (8th Dist. October 2, 2008):

[*P15] In Hathman, officers arrested Hathman and conducted an inventory search of his vehicle. During the inventory search, an officer opened and searched the vehicle’s trunk and discovered a plastic bag. The bag contained several smaller bags and a pill bottle. These containers were then opened and found to contain contraband. The officer testified his department’s standard policy permitted him to inventory all “accessible” areas of the car.

[*P16] The Supreme Court held that the search of the trunk itself was reasonable because the trunk is part of an automobile that is normally included in the scope of an inventory search, and that testimony established that it was standard procedure to search such areas. However, the Court concluded that the evidence discovered in the containers should be suppressed because, in accordance with Bertine and Wells, supra,” the existence of a reasonable policy or procedure governing inventory searches in general is insufficient to justify the opening of closed containers encountered” during the inventory search. Rather, some articulated policy must also exist which regulates the opening of containers found during the authorized inventory search.”

Evidence suppressed in a prior case could be used in sentencing in another case. The exclusionary rule should not be applied to prevent evidence from being used in a subsequent sentencing. People v. Rose, 2008 Ill. App. LEXIS 861 (August 13, 2008), released for publication September 26, 2008:

We now discuss defendant’s rights regarding the suppressed evidence. The judicially created exclusionary rule generally serves to prevent evidence obtained in violation of the fourth amendment from being used in a criminal proceeding against the individual whose constitutional rights were violated. Illinois v. Krull, 480 U.S. 340, 347, 94 L. Ed. 2d 364, 373, 107 S. Ct. 1160, 1165 (1987). The central purpose of the exclusionary rule is to deter the police from acting unlawfully in the future, thereby effectuating the fourth amendment guarantee against unreasonable searches and seizures. Krull, 480 U.S. at 347, 94 L. Ed. 2d at 373, 107 S. Ct. at 1165. The exclusionary rule is not a personal constitutional right of the aggrieved party, and its application is not intended or able to act as a remedy for the invasion of the party’s rights that has already taken place. Krull, 480 U.S. at 347, 94 L. Ed. 2d at 373, 107 S. Ct. at 1165-66. The exclusionary rule is not designed to prevent the use of suppressed evidence in all types of proceedings or against all people. People v. Dowery, 62 Ill. 2d 200, 204, 340 N.E.2d 529 (1975). “[I]n determining whether the ‘exclusionary rule’ should be extended to certain proceedings a balancing test has been utilized to limit application of the rule ‘to those areas where its remedial objectives are thought most efficaciously served.'” Dowery, 62 Ill. 2d at 204, quoting United States v. Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613, 620 (1974).

Our research has not revealed any Illinois case addressing the specific question of whether evidence suppressed on fourth amendment grounds in a prior case nonetheless may be considered at a sentencing hearing on a future charge. One case, People v. Evans, 125 Ill. 2d 50, 530 N.E.2d 1360, 125 Ill. Dec. 790 (1988), discusses a sentencing court’s consideration of previously suppressed evidence, but that case is distinguishable. In Evans, the defendant argued on appeal that the sentencing court erred in considering the testimony of an alleged prior rape victim, because during the defendant’s trial for that offense the trial court granted his motion to suppress the victim’s identification of him. Evans, 125 Ill. 2d at 90. The defendant claimed that this prior suppression made the evidence unreliable at sentencing. Evans, 125 Ill. 2d at 91. Our supreme court held that the defendant’s argument was without merit because the defendant failed to inform the sentencing court that the identification had been suppressed and because the victim’s testimony was cumulative of the large amount of evidence in aggravation. Evans, 125 Ill. 2d at 91-92. The instant case, unlike Evans, involves evidence suppressed under the fourth amendment, so the mere fact that the evidence was suppressed does not equate to a finding that it was unreliable. Moreover, defendant preserved his argument in the trial court, and the introduction of the suppressed evidence would not amount to harmless error here.

While there is no Illinois law directly on point, we note that all but one of the federal appellate courts have resolved the issue at hand, and they have all concluded that the exclusionary rule generally does not apply to sentencing hearings. United States v. Acosta, 303 F.3d 78, 86 (1st Cir. 2002); United States v. Ryan, 236 F.3d 1268, 1271-72 (10th Cir. 2001); United States v. Brimah, 214 F.3d 854, 858 (7th Cir. 2000); United States v. Tauil-Hernandez, 88 F.3d 576, 581 (8th Cir. 1996); United States v. Kim, 25 F.3d 1426, 1435 (9th Cir. 1994); United States v. Montoya-Ortiz, 7 F.3d 1171, 1181-82 (5th Cir. 1993); United States v. Jenkins, 4 F.3d 1338, 1344-45 (6th Cir. 1993); United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir. 1992); United States v. Lynch, 934 F.2d 1226, 1236-37 (11th Cir. 1991); United States v. McCrory, 289 U.S. App. D.C. 178, 930 F.2d 63, 69 (D.C. Cir. 1991); United States v. Torres, 926 F.2d 321, 325 (3rd Cir. 1991); see also United States v. Nichols, 438 F.3d 437, 441 (4th Cir. 2006) (citing Acosta and cases cited therein with approval). Though we are not required to follow decisions of federal courts other than the United States Supreme Court (People v. Calvert, 326 Ill. App. 3d 414, 424, 760 N.E.2d 1024, 260 Ill. Dec. 251 (2001)), we may use such decisions as guidance (People v. Criss, 307 Ill. App. 3d 888, 900, 719 N.E.2d 776, 241 Ill. Dec. 647 (1999)). The aforementioned federal appellate courts have noted that a sentencing court may conduct a very broad inquiry into the defendant’s background, character, and conduct in order to have the largest range of information available to determine the appropriate punishment. Acosta, 303 F.3d at 85-86. They have recognized that evidence that has been illegally seized is not inherently unreliable (see, e.g., Brimah, 214 F.3d at 858) and concluded that “the deterrent effect of the exclusionary rule does not outweigh the detrimental effects of excluding reliable evidence on the court’s ability to meet its goal of proper sentencing.” Acosta, 303 F.3d at 85. Still, some of the federal courts have indicated that the exclusionary rule will apply at sentencing if there is evidence that the police violated the defendant’s fourth amendment rights with the purpose of obtaining a greater sentence. See Acosta, 303 F.3d at 85 (cases cited therein).

Comment: To say that the police are not deterred by the ability to use illegally seize evidence is either manifestly false or incredibly niave. They seize it to use it; that simple. If they can’t use it in the case at hand, it can come back to bite the defendant later.

Driver of a rental car not on the contract, and thus “unauthorized” still had standing to challenge an inventory of the car. To hold otherwise would subject a huge number of people to unauthorized searches. State v. Henderson, 2008 Ohio 5007, 2008 Ohio App. LEXIS 4219 (5th Dist. September 26, 2008):

[*P29] In this case, appellant was operating a rented vehicle, and was not an authorized driver of the vehicle. No one present at the stop was an authorized driver of the vehicle.

[*P30] Therefore, the issue is whether appellant’s mere possessionary use, though unlawful use, can bootstrap the issue of standing. Under the very strict interpretation of the facts sub judice, we find appellant had standing to challenge the search. Appellant’s possession may have been contractually unauthorized, but this was a civil wrong, not a criminal wrong. To permit the issue of standing to be a bar to all of the million of individuals who cannot establish a right to drive another’s vehicle would be beyond the pale. Appellant’s possession of the vehicle may be challengeable civilly, but it does not render his expectation of privacy null and void.

Untimely motion to suppress was properly denied, and whether to entertain it late is within the discretion of the trial court. State v. Skorvanek, 2008 Ohio 4937, 2008 Ohio App. LEXIS 4155 (9th Dist. September 29, 2008).*

During a stand off, defendant claimed in a post-conviction proceeding that he was seized because he could not come out, and his defense counsel was ineffective for not filing a motion to suppress the seizure. Defendant was threatening the SWAT team with guns during the stand off. Defense counsel was not ineffective. State v. Suiste, 2008 Ohio 5012, 2008 Ohio App. LEXIS 4214 (5th Dist. September 29, 2008) (Comment: The court does not specifically hold that the stand off was a seizure, but reading between the lines, it seems so. At least it would be a seizure with probable cause.)

State search warrant is not governed by Rule 41 in a federal prosecution. United States v. Morgan, 2008 U.S. Dist. LEXIS 76185 (N.D. N.Y. September 15, 2008).*

Unkempt yard in high crime area is not an exigent circumstance for a warrantless entry. United States v. Vurgess, 2008 U.S. Dist. LEXIS 74332 (S.D. Ga. September 26, 2008):

The Government also argues that the warrantless entry was justified by the exigency of the circumstances. In support of its argument, the Government cites the condition and appearance of the property, and its location in a high crime neighborhood, as creating a sufficient danger to the community to justify a warrantless entry in the home. This argument fails for two reasons. First, the Fourth Amendment would be rendered a virtual nullity if government agents could perform warrantless searches based merely on the location of a home and its unkempt appearance. Assuming that the property was in a state of disrepair and located in a high crime neighborhood, the government has failed to show that this created any specific emergency that would justify abandoning the warrant requirement. 6 Such a ruling would strip a large segment of the population of their Fourth Amendment protection simply because they have the misfortune of living in a high crime area and a disdain for performing work in the yard or on their house. In regards to the warrantless entry into an individual’s home, the touchstone of Fourth Amendment protection is not the aesthetic quality of the property. This would place the applicability of an important constitutional protection in the eye of the beholder and remove crucial safeguards that operate to preserve our individual liberties.

Pretrial release searches for child pornography must comply with the Fourth Amendment. Defendant here may be prevented from access to the Internet. United States v. Brown, 2008 U.S. Dist. LEXIS 73715 (D. Ariz. July 14, 2008):

This case is distinguishable from the Ninth Circuit’s decision in United States v. Scott, 450 F.3d 863, 872 n. 11 (9th Cir. 2006), wherein the Ninth Circuit considered pretrial release conditions other than those designed to secure an accused’s presence in court and the safety of the community. In Scott, the defendant was arrested on Nevada charges of drug possession and released on his own recognizance. Scott, 450 F.3d at 865. As a condition of his pretrial release, defendant was required to sign a form agreeing to comply with several conditions including “random” drug testing without a warrant and that his home be searched for drugs without a warrant. Scott, 450 F.3d at 865. Scott was a Fourth Amendment case concerning defendant’s motion to suppress evidence found in a warrantless search of defendant’s home. The issue in Scott was whether defendant waived his Fourth Amendment rights by consenting to pretrial release conditions allowing law enforcement officials to conduct warrantless searches of his home. Id. at 865. The Ninth Circuit concluded that defendants on pretrial release do not waive their Fourth Amendment rights through consent to pretrial release conditions; thus, searches must be supported by probable cause under the Fourth Amendment to be lawful. Id. at 868. In analyzing the disputed search in Scott, the court determined that defendants on pretrial release do not have reduced expectations of privacy like probationers and supervised releasees. Id. at 873. “[T]he assumption that [the defendant] was more likely to commit crimes than other members of the public,” did not authorize the Government to “short-circuit” the search warrant process. Id. at 874. “Just as the government cannot detain an individual for dangerousness merely because he has been arrested, the government cannot order warrantless searches based on the assumption that the defendant will commit further crimes.” United States v. Gardner, 523 F.Supp.2d 1025, 1034 (N.D.Cal. 2007) (discussing Scott, 450 F.3d at 874).

Unlike the district court in Scott, this Court is not assuming that merely with Defendant’s arrest that he is more likely than the general public to commit sexually-related crimes while on release. Rather, the Court is relying upon expert testimony of an unchallenged expert on sexual deviancy, Mr. Robert Emerick, that “there is a relationship between viewing sexually explicit pornography depicting consenting adults in increasing severity … and the potential for viewing child images and/or committing hands-on offenses against children.” (docket # 23 at 29-30)

In summary, Defendant has been indicted for receiving and possessing child pornography; hence, probable cause exists that Defendant committed these sexually-related crimes. Mr. Emerick testified that “there is a relationship between viewing sexually explicit pornography depicting consenting adults … and the potential for viewing child images and/or committing hands-on offenses against children.” (docket # 23 at 29-30) In view of that relationship, the pretrial release condition that “[t]he defendant shall not access via computer or possess any photographs or videos of sexually explicit conduct as defined by 18 U.S.C. § 2256(2),” is a condition that will further protect the public from Defendant, while on pretrial release. (docket # 23 at 24-25) Such a condition directly serves the Government’s “legitimate and compelling” pretrial goal of protecting the public, Salerno, 481 U.S. at 749, and constitutes only a limited abridgement of Defendant’s First Amendment rights for a relatively short period of time. United States v. Bahe, 201 F.3d 1124, 1134 (9th Cir. 2000) (quoting United States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (A defendant’s right to free speech may be abridged to “‘effectively address [his] [alleged] sexual deviance problem.'”); United States v. Murtari, 2008 U.S. Dist. LEXIS 18880, 2008 WL 687434 (N.D.N.Y. 2008) (pretrial release condition was reasonable and was limited to encroaching upon defendant’s First Amendment rights only to the extent necessary based upon the magistrate judge’s findings.)

The evidence did not support the conclusion that defendant had abandoned leased premises because he was still around at the sufferance of his girlfriend who still had a legal connection to the premises. United States v. Carter, 2008 U.S. Dist. LEXIS 73737 (N.D. Ill. August 12, 2008):

This case is therefore distinguishable from Smith, in which an apartment was reasonably presumed to be abandoned when the tenant, who had a month-to-month oral lease, failed to pay his rent for two months, had removed the majority of his belongings, the power was turned off, and garbage and rotting food had been left within the house. 561 N.E.2d at 258. In the instant case, Carter’s girlfriend had a still-valid lease to the apartment and Carter was known to cohabit with her, meaning that Carter had at least as much of an expectation of privacy as an overnight guest in the apartment. See Minnesota v. Olson, 495 U.S. 91, 98-99, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (overnight guest has a legitimate expectation of privacy in his host’s home).

DUI checkpoint on entrance to a Georgia Navy base was valid. It was governed by Sitz and not Edmond. “Moreover, despite the lack of signage announcing the inspection, there was a police-type vehicle at the Base’s entry with its lights on, and security personnel were wearing brightly colored vests. Further, Defendant was attempting entry onto a military installation. Even if the gate through which he attempted entry was not on a ‘closed’ part of the Base, this Court must nonetheless respect the security needs inherent of a military installation.” United States v. Howard, 2008 U.S. Dist. LEXIS 72916 (S.D. Ga. September 24, 2008).*