The government’s claim of consent in this case was post hoc at best because it was done as an inventory, and it was invalid at that. The officer’s own police reports undercut the government’s claim that consent was the issue. United States v. Jackson, 560 F. Supp. 2d 331 (D. Del. 2008).*

Defendant’s suspected attempted meeting with a prostitute on the street viewed by a vice officer was reasonable suspicion. “While certainly Luqman can create any number of possible innocent explanations for these actions, we need not adopt those singular explanations. Rather, the question is whether, when looking at the facts in total, the officers had reason to believe that criminal activity was afoot. The answer here is yes.” United States v. Luqman, 522 F.3d 613, 2008 FED App. 0144P (6th Cir. 2008).*

Officer had reasonable suspicion from a collection of circumstances, one of which was saying that he got the car from a stripper named “Fluff” when the car was registered to a man. United States v. Robinson, 2008 U.S. App. LEXIS 7459 (11th Cir. April 2, 2008) (unpublished).*

Failure to voice opposition to search helps show it was consensual. Mother may consent to a search of her minor daughter’s stuff. State v. Stites, 2008 Mo. App. LEXIS 1028 (July 22, 2008) (Comment: The average person would never dare challenge a cop during an illegal search, so silence should not mean a thing.)

Officers had information defendant was attacking another inside his home, and that justified a warrantless entry. Defense counsel was not ineffective for not challenging it. Jones v. State, 2008 Tenn. Crim. App. LEXIS 582 (July 29, 2008).*

While it would violate due process to comment on defendant’s refusal to consent to a search for DNA, this case did not reach that level. If anything, the inference was that somebody else did not consent. State v. Jones, 753 N.W.2d 677 (Minn. 2008).*

Airplane stop at the Kent State University airport was justified by reasonable suspicion of either drug or alien smuggling. It was more than a “ramp check” when six police cars with sirens blocked its path. It was, however, with reasonable suspicion, and then a drug dog was brought in. United States v. Gonzales, 2008 U.S. Dist. LEXIS 67073 (N.D. Ohio August 21, 2008).*

Search of defendant’s car under a search warrant was not justified, and there was no exception to the warrant requirement permitting the search of the car. United States v. Pointer, 2008 U.S. Dist. LEXIS 67144 (N.D. Okla.September 3, 2008).*

Defendant was stopped for pulling to the curb without signaling, and this provided an objective basis for the stop, albeit arguably pretextual, that produced a plain view of rocks of crack on the floorboard. State v. Brunner, 2008 Ohio 4519, 2008 Ohio App. LEXIS 3804 (5th Dist. August 29, 2008):

[*P19] Officer Diels reasonably believed that appellant had violated the traffic ordinance based upon his interpretation of the traffic code. He observed appellant pull to the curb on Second Street without signaling. The evidence was undisputed that appellant moved from his lane of travel to the curb without activating a turn signal. We find that although the traffic citation was minimal and perhaps pretextual, Officer Diels had reasonable suspicion to make the traffic stop. Accordingly, appellant’s sole assignment of error is overruled.

Typographical error (4311 v. 4511) in affidavit was just that. There was a photograph of 4511, the officer had been to 4511 with the CI, and there was no 4311. This was in handwritten additions made to the affidavit at the request of the magistrate after the officer expanded on the showing of probable cause. United States v. Johnson, 2008 U.S. Dist. LEXIS 67429 (D. D.C. September 5, 2008):

Detective Sepeck’s handwritten additions to his affidavit were clearly made “in the midst and haste of a criminal investigation.” Ventresca, 380 U.S. at 108. Those additions were made in front of the Superior Court judge and at her request, after Detective Sepeck had described these further efforts at corroboration by law enforcement. The simple error in the address numbers was not noted and had no effect on the fundamentals of the affidavit — or, more importantly, the facial validity of the Search Warrant itself upon which the executing officers relied.

Comment: Unspoken with the citation to Ventresca is the fact that the magistrate requested the officer to add detail to the affidavit to further support the probable cause. This is what a magistrate should do. If there is additional information, add it in. Slight mistakes should be overlooked as long as there is no reasonable mistake about the place to be searched. And, under Ventresca, at 109, “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.”

Officer was permitted to open defendant’s car door after pulling him over because of defendant’s furtive movements. United States v. King, 2008 U.S. Dist. LEXIS 67351 (N.D. Ind. September 2, 2008):

In sum, the circumstances of the traffic stop and the specific actions of the Defendant (unusual, furtive movement and refusal to obey the commands) formed a reasonable basis for Lichtsinn’s belief that the Defendant was dangerous and may have possessed or was retrieving a weapon. As a consequence, the protective search that took the form of opening the passenger door was justified, and the act of opening the door was properly limited in time and scope. The Defendant has not established a basis to suppress the evidence recovered.

Defendant’s mother had apparent authority to use the computer in a computer bag, so she had apparent authority to open the pockets of the computer bag. United States v. Jackson, 2008 U.S. Dist. LEXIS 67392 (W.D. Wis. September 3, 2008).*

Blanket suppression of search for records was unwarranted. The critical records sought were fairly within the search warrant and should have not been suppressed. United States v. Srivastava, 2008 U.S. App. LEXIS 18817 (4th Cir. September 3, 2008), reversing United States v. Srivastava, 444 F. Supp. 2d 385 (D. Md. 2006), reconsideration denied, United States v. Srivastava, 476 F. Supp. 2d 509 (D. Md. 2007):

Finally, having determined that the Potomac Documents and the Bank of India Transfers were within the ambit of the search warrants for the Potomac residence and the Greenbelt office, we assess the government’s challenge to the blanket suppression of all the seized evidence. In that respect, the district court found that the warrants had been so flagrantly and unconstitutionally executed that a blanket suppression was justified. We have consistently recognized, however, that, “[a]s a general rule, if officers executing a search warrant exceed the scope of the warrant, only the improperly-seized evidence will be suppressed; the properly-seized evidence remains admissible.” United States v. Squillacote, 221 F.3d 542, 556 (4th Cir. 2000); see also United States v. Shilling, 826 F.2d 1365, 1369 (4th Cir. 1987) (holding that “[t]he exclusionary rule does not compel suppression of evidence properly covered by a warrant merely because other material not covered by the warrant was taken during the same search”). We have also recognized that only extraordinary circumstances–such as when “the warrant application merely serves as a subterfuge masking the officers’ lack of probable cause,” or if “the officers flagrantly disregard [] the terms of the warrant” by “engag[ing] in a fishing expedition for the discovery of incriminating evidence” — will justify the suppression of lawfully seized evidence. United States v. Uzenski, 434 F.3d 690, 706 (4th Cir. 2006) (internal quotation marks omitted).

It might have been prudent to wait for proof of ownership of a vehicle, but the officer did not have to when somebody asserted that they were the owner for purposes of granting consent. Commonwealth v. Graham, 2008 PA Super 100, 949 A.2d 939 (2008).*

“¶11 … [A]sking for consent to search did not turn a voluntary meeting into a seizure. Appellant’s position, if accepted, would essentially vitiate any consent to search where probable cause to search did not already exist. Such is not the state of the law.” State v. Harrington, 144 Wn. App. 558, 183 P.3d 352 (2008).*

Office gave a mixed motive for the stop of headlights and what he thought was suspicious activity, and this made the stop pretextual under Washington law. State v. Montes-Malindas, 144 Wn. App. 254, 182 P.3d 999 (2008).*

Defendant was shown to have abandoned a motel room leaving various items behind. The motel manager attempted to contact defendant before entering hours after checkout time had passed. The door was locked, and it was apparent flight was out a window, breaking the screen. Various things were left behind, and defendant made no effort to contact the motel after he left and before arrest. People v. Parson, 44 Cal. 4th 332, 187 P.3d 1, 79 Cal. Rptr. 3d 269 (2008).*

Defendant waived his search claim in his guilty plea, and his waiver of 2255 IAC rights in the plea was binding. Nunez v. United States, 2008 U.S. Dist. LEXIS 51688 (D. N.J. July 7, 2008):

The Court finds Petitioner’s § 2255 waiver enforceable. “[A] waiver does not become unenforceable simply because a defendant claims ineffective assistance, but only if the record of the criminal proceeding revealed that the claim that the waiver was the result of ineffective assistance of counsel was meritorious.” United States v. Akbar, 181 Fed. Appx. 283, 286-287 (2006) citing United States v. Monzon, 359 F.3d 110, 118-19 (2d Cir. 2004) (internal quotations omitted). However, Nunez does not claim that in his case, ineffectiveness of counsel resulted in his signing the waiver unknowingly, involuntarily, or with a lack of understanding. Rather, his ineffective counsel claim is premised upon counsel’s failure to appeal the denied motion to suppress evidence. As a result, Petitioner’s waiver of his § 2255 rights is effective, and his ineffective counsel claim does not survive waiver of appeal.

Tennessee holds that the undisputed proof showed that the search warrant in this case was executed before it was issued by the magistrate, so the search had to be suppressed. The endorsement rules for issuance of a state search warrant are mandatory. State v. Jones, 2008 Tenn. Crim. App. LEXIS 294 (March 28, 2008).

Probable cause to believe defendant is going to do a drug deal gave a nexus to search his car that he would be delivering them in but it said nothing about his possession in the home. Suppression order as to house affirmed, reversed as to car. State v. Saine, 2008 Tenn. Crim. App. LEXIS 289 (April 4, 2008).

Information from two informants corroborated each other, and that supported probable cause to stop and arrest the defendant. United States v. Galloway, 274 Fed. Appx. 241 (4th Cir. 2008) (unpublished).*

Strip search of a sexually violent predator in jail based on an extra t-shirt, an extra book, and a piece of paper over the window to block light could be found to be pretextual since there was nothing to be found on the body in relation to the contraband in the cell. This claim survives summary judgment. Cerniglia v. County of Sacramento, 2008 U.S. Dist. LEXIS 32346 (E.D. Cal. April 18, 2008).*

Officers had reasonable suspicion for defendant based on their collective knowledge. United States v. Allen, 274 Fed. Appx. 811 (11th Cir. 2008) (unpublished).*

A knock and talk was attempted at defendant’s house because officers were informed of a grow operation. Nobody answered, so they hung out for a while, and when the defendant appeared out a rear door and the officers went to meet him they could smell marijuana coming out of the house. The defendant argued lack of exigency for an entry as a protective sweep, because a grow operation could not be dismantled and removed while the officers were around. The District Court found the entry reasonable and it did not taint the later issued warrant. United States v. Correa, 2008 U.S. Dist. LEXIS 32273 (N.D. Fla. April 18, 2008).*

Consent to “look for drugs” permitted a dog sniff. United States v. Vargas-Miranda, 559 F. Supp. 2d 1016 (D. Neb. 2008):

Finally, applying Eighth Circuit precedent and realizing that no damage was done to the car and none of the defendants made a contemporaneous objection to the manner of the officer’s examination, a search of a vehicle that took about 34 minutes from the time of the consent to the finding of the package of heroin (Ex. 1 at approximately 2:40 to approximately 36:38) did not exceed the consent to “look” for drugs even though the deputy sheriff used a dog to sniff for contraband, removed (and replaced) a few screws that appeared to be out of the ordinary, and removed a plastic piece over the center radio console after observing that the glove compartment was missing a rivet. See, e.g., United States v. Ferrer-Montoya, 483 F.3d 565, 568-569 (8th Cir. 2007) (state trooper, with the assistance of a drug dog, did not exceed the defendant’s consent to a search of his vehicle for drugs during a traffic stop when trooper removed screws from console panel and lifted panel to reveal hidden compartment; defendant placed no qualifications or limitations on his consent to search of his vehicle for drugs, officer noticed scarred screws on console panel during search, officer opened compartment in minimally intrusive manner by removing the screws, and did no damage to the vehicle, and at no time did defendant object or suggest that he wished to withdraw his consent to search).

Defendant’s actions after consent was allegedly coerced showed that it was voluntary. “Paracha provided the agents with keys to enter his residence and, when no one answered the door, Paracha called the home telephone to ensure that nobody was inside.” United States v. Paracha, 2008 U.S. App. LEXIS 12937 (2d Cir. June 19, 2008) (unpublished).*

Officer was legitimately in defendant’s house on arrest, so the plain view was proper. United States v. McMullin, 2008 U.S. Dist. LEXIS 46829 (E.D. Mo. June 17, 2008).*

Reasonable suspicion existed to show that defendant was involved in a marijuana grow operation after purchase of fertilizer. [The government also placed a GPS on the vehicle, something not challenged.] United States v. Pineda-Moreno, 2008 U.S. Dist. LEXIS 46844 (D. Ore. June 16, 2008).*

Search of entire residence is permissible under a search warrant even though probable cause only extended to one occupant. Spending three hours looking for gambling records did not make the search a “general search.” Gun and stun gun found during search were thus considered in plain view. United States v. Graziano, 558 F. Supp. 2d 304 (E.D. N.Y. 2008).

District Court erred in not considering the fundamental question of the totality of the circumstances surrounding consent. United States v. Holmes, 270 Fed. Appx. 767 (11th Cir. 2008) (unpublished).*

“The fact remains that if Tommy Allen had been investigated, searched, prosecuted and arrested solely on the basis of his cultivation and possession of medicinal marijuana, no violation of a federal constitutional or statutory provision would have occurred. Federal law simply offers no protection to persons who possess, cultivate, or use marijuana for medicinal purposes.” So, his § 1983 fails. Allen v. Fresno City, 2008 U.S. Dist. LEXIS 22480 (E.D. Cal. March 20, 2008).*

Shortly after the Madrid train bombing, a Boston officer just trained in terrorism investigation saw a van parked outside an MBTA station that was of interest. Another officer drove up and approached the defendant in his van. The stop and questions were valid. When investigating potential terrorism, a sliding scale of reasonable suspicion exists. United States v. Ramos, 2008 U.S. Dist. LEXIS 66465 (D. Mass. August 29, 2008):

The location where conduct occurs also bears on whether it is sufficiently suspicious to justify further investigation. For example, the Supreme Court has stated that in the vicinity of the Mexican border “‘the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor’ …. Different considerations would arise if, for example, reliance were put on apparent Mexican ancestry at a checkpoint operated near the Canadian border.” United States v. Martinez-Fuerte, 428 U.S. 543, 564 n. 17, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 886-87, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)). Similarly, the First Circuit has held that “police are permitted to take the character of the neighborhood into account in deciding whether a stop is appropriate ….” … As these cases recognize, particular conduct may reasonably arouse suspicion in one place when it would not be suspicious in another place. Thus, in the instant case, common sense indicates that it was permissible for the police to consider that the conduct in question was occurring at a public transportation facility which, as the then recent Madrid bombing suggested, might be a particularly attractive target for a terrorist attack.

Common sense and case law also indicate that the assessment of whether conduct is reasonable for Fourth Amendment purposes may properly be influenced by the degree of danger that is being investigated. In other words, the gravity of the potential danger being addressed is one of the totality of the circumstances to be considered. For example, in Florida v. J.L., 529 U.S. 266, 273-74, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), the Supreme Court stated, “[w]e do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk.” Similarly, in finding that checkpoints established to stop vehicles to search for drugs were unconstitutional, the Supreme Court stated, before 9/11, that “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.” City of Indianapolis v. Edmond, 531 U.S. 32, 44, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).fn4

4. The Supreme Court’s statement in Edmond echoes Justice Robert Jackson’s observation in 1949 that:

If . . . a child is kidnaped and the officers throw a road block about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

Brinegar v. United States, 338 U.S. 160, 183, 69 S. Ct. 1302, 93 L. Ed. 1879 (Jackson, J., dissenting).

Comment: The 9/11 mantra slides the scale.

When the IRS satisfies Powell‘s minimal requirements for enforcement of a summons for records, there is no Fourth Amendment claim. United States v. Clark, 2008 U.S. Dist. LEXIS 66358 (D. Conn. August 29, 2008):

Mr. Clark’s final argument is that complying with the summons would deprive him of his Fourth Amendment right to be free from unreasonable searches and seizures and his Fifth Amendment right against self-incrimination. The Court adopts Magistrate Judge Margolis’ recommended ruling that enforcement of the IRS summons does not violate Mr. Clark’s Fourth Amendment rights. Courts have repeatedly recognized that “enforcement of an IRS summons does not violate the fourth amendment as long as the IRS has complied with the Powell requirements.” United States v. Reis, 765 F.2d 1094, 1096 (11th Cir. 1985); see also Fisher v. United States, 425 U.S. 391, 401 n.7 (1976) (stating that although taxpayers had not raised any Fourth Amendment arguments, they “could not be successful if they had. The summonses are narrowly drawn and seek only documents of unquestionable relevance to the tax investigation”); United States v. Abrahams, 905 F.2d 1276, 1282 (9th Cir. 1990) (“[S]atisfaction of the Powell requirements serve[s] to ensure that the summons d[oes] not violate the fourth amendment by lacking sufficient cause.”), overruled on other grounds by United States v. Jose, F.3d 1325, 1329 (9th Cir. 1997) (en banc); United States v. Theep, 502 F.2d 797, 798 (9th Cir. 1974) (“the unlawful search and seizure provisions of the Fourth Amendment do not protect the taxpayer from an IRS summons”); …. Here, because the Court finds that the IRS has satisfied the Powell requirements, there is no Fourth Amendment violation.

A reporter and producer with Democracy Now!, including Amy Goodman, were arrested for, as they say, no apparent reason at the RNC in St. Paul yesterday. How ironic.

The transcript of their story is here. Their website also has video, audio, and MP3 downloads.

In the Eighth Circuit, the question is whether the officer reasonably believed the defendant consented, not whether the defendant actually understood. United States v. Flores, 2008 U.S. Dist. LEXIS 66275 (D. Neb. August 28, 2008)*:

The determinative issue in this case is not whether Julio actually understood what he was signing, but, rather, whether Trooper Hazard reasonably believed that Julio understood and was consenting to the search. “The government bears the burden of proving voluntary consent by a preponderance of the evidence and must show that on the totality of the circumstances the officer reasonably believed that the search was consensual.” United States v. Almendares, 397 F.3d 653, 660 (8th Cir. 2005) (upholding consent finding even though subject did not speak English).

Comment: Doesn’t that framing of the issue just beg the question?

The right of confrontation does not apply at a suppression hearing. The officer that actually stopped the defendant was not called as a witness by the government, so hearsay was admissible about the cause of the stop. United States v. Thompson, 533 F.3d 964 (8th Cir. 2008):

Thompson also complains that the city officer who actually stopped the Oldsmobile was not present at the hearing and did not testify as to why the Oldsmobile was stopped. “[T]he right of confrontation does not apply to the same extent at pretrial suppression hearings as it does at trial. ‘[T]he interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself.'” United States v. Boyce, 797 F.2d 691, 693 (8th Cir. 1986) (quoting United States v. Raddatz, 447 U.S. 667, 679 (1980)). Although not admissible at trial, the district court may rely on hearsay evidence at a suppression hearing. Id. Thus, the trial court did not err in relying on hearsay testimony as to the traffic violation that led to the traffic stop of the Oldsmobile. The city officer’s observation of the Oldsmobile committing a traffic violation established probable cause for the stop of the Oldsmobile. Therefore, the motion to suppress was properly denied.

Finding of the district court that the defendant was not detained by the police when the encounter started was not clearly erroneous. The situation escalated as the defendant’s words and conduct got more suspicious. United States v. Griffith, 533 F.3d 979 (8th Cir. 2008).*

Consent was validly obtained. While the defendant likely did not think that consent to search the trunk of his car would lead to searching sealed packages, the trained officer at least had probable cause to believe that picking up the package at issue gave him probable cause to believe that the package contained cocaine, and that justified the further search without regard to scope of consent. State v. Brown, 2008 Tenn. Crim. App. LEXIS 249 (March 31, 2008):

The appellant’s consent to search allowed Trooper Hoppe to legitimately enter the vehicle and begin a search. Consent to search a vehicle necessarily encompasses consent to at least touch items, including locked or sealed packages, contained within the vehicle. As part of the search, Trooper Hoppe picked up the taped, sealed package containing cocaine. While we agree that the appellant’s consent likely did not authorize Trooper Hoppe to tear open the heavily-taped package, we do not believe that merely picking up and feeling the outside of the package exceeded the scope of the appellant’s consent. See McCrary, 45 S.W.3d at 44 n.3; see also Jimeno, 500 U.S. at 251, 111 S. Ct. at 1804. Regardless, Trooper Hoppe testified that he was trained in drug interdiction. During the consensual search, Trooper Hoppe discovered the package in the front passenger floorboard of the vehicle. Trooper Hoppe testified that, simply by feeling the package, the contents of the package were inherently recognizable as a “brick” of cocaine. The trial court implicitly accredited the trooper’s testimony. Thus, the totality of the circumstances gave Trooper Hoppe probable cause to believe the object inside the package was contraband, thereby giving the trooper probable cause to open the package and discover the cocaine within. See State v. Cothran, 115 S.W.3d 513, 524 (Tenn. Crim. App. 2003). Accordingly, the trial court correctly denied the appellant’s motion to suppress.

Defendant’s testimony he was denied water and kept in the back of a hot police car until he would sign consent is rejected as not credible. United States v. Zaleski, 559 F. Supp. 2d 178 (D. Conn. 2008).*

The gazebo on defendant’s property was outside a fence line and not on the curtilage. United States v. Tilden, 2008 U.S. Dist. LEXIS 26123 (D. Ariz. February 28, 2008).*

Probable cause to arrest and to search are different concepts and protect different interests. This case involved a search for alien smuggling and sex trafficking evidence, and his home was the logical place to look. United States v. Gereb, 547 F. Supp. 2d 658 (W.D. Tex. 2008).*

Defendant had no expectation of privacy in his computer in a common military living area that he left on and allowed others to use. [The court also finds there was no expectation of privacy because it was connected to a network, although the search was direct through the keyboard and not the network, a doubtful holding to me.] United States v. Rosario, 558 F. Supp. 2d 723 (E.D. Ky. 2008):

The Court finds that the search did not violate Rosario’s Fourth Amendment protections because he did not have a reasonable expectation of privacy in his computer. Rosario connected his computer to a network through which the files on the computer were accessible by other computers on the same network. Furthermore, Rosario admitted that he left his computer on all the time and allowed numerous individuals access to it. Additionally, there was no password on Rosario’s computer at the time the search was conducted. Rosario took no steps to prevent others from accessing the files on his computer and surely contemplated that someone could access files on his computer either through the network or by using the computer with his permission. … Consequently, the Court finds that Rosario did not have a subjective expectation of privacy in his computer. Even if the Court were to conclude that Rosario had an expectation of privacy, by connecting his computer to a network and allowing others to use it, that expectation was unreasonable.

Though it has not been argued by the parties it is worth noting that Rosario’s expectation of privacy in his living space was also diminished by the fact that he lived in army barracks. See United States v. McCarthy, 38 M.J. 398 (CMA 1993) (holding that the threshold of a barracks/dormitory room does not provide the same sanctuary as the threshold of a private home). Rosario’s living area, where the computer was searched, was located in a long open room. Other soldiers’ bunks and living areas were separated from Rosario’s by furniture. The expectations of privacy in a setting such as this differ from those in a home. What is an unreasonable intrusion in a civilian context may be reasonable in a military context. Id. Thus, the Court finds that Sergeants McNeil, Jones, Allen and Specialist Vallade did not violate Rosario’s Fourth Amendment protections when they entered his living space to search his computer.