Officer lacked reasonable suspicion for stop, and trial court’s finding of fact was clearly erroneous. The fact he left a drug house and had handed something to another alone was not reasonable suspicion. United States v. Blair, 524 F.3d 740 (6th Cir. 2008):

a. Terry Stop Based on Time, Area, and Known Drug House

The question remains whether the late hour and high-crime area justify a Terry stop. We hold they do not. That a given locale is well known for criminal activity will not by itself justify a Terry stop, although it may be taken into account with other factors. Martin, 289 F.3d at 397 (citing Wardlow, 528 U.S. at 123). The only other factor to consider here is that the stop occurred at night. A late hour can contribute to reasonable suspicion; however, our cases so holding typically involve a much later hour than that involved here. See United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006) (discussing a stop that took place at 1:20 a.m.); United States v. Bailey, 302 F.3d 652, 659 (6th Cir. 2002) (addressing a stop that took place at 1:00 a.m.). Blair was stopped at approximately 10:30 p.m., an hour not late enough to arouse suspicion of criminal activity. Accordingly, Officer Holmes did not have reasonable suspicion to suspect Blair of criminal activity simply because he was driving in a bad neighborhood at 10:30 at night.

b. Terry Stop Based on Hand-to-Hand Transaction

The district court also found that Officer Holmes had reasonable suspicion that Blair was involved in drug activity based on “some evidence that Officer Holmes knew of the hand-to-hand transaction prior to the traffic stop.” This Court finds the district court’s conclusion of fact on this issue clearly erroneous.

Officers Munday and Holmes offered contradictory testimony regarding when Officer Holmes learned of the hand-to-hand transaction. Officer Munday testified that as soon as he saw
the transaction, he informed Officer Holmes. Officer Holmes, on the other hand, testified that he did not hear of the hand-to-hand transaction until after the stop occurred. Although Officer Holmes suggested that he and Officer Munday were communicating before the stop, Officer Holmes was unequivocal regarding when he learned of the hand-to-hand transaction: after the stop. Therefore, even viewing the evidence in the light most favorable to the government, this Court finds that Officer Holmes did not know of the hand-to-hand transaction prior to the traffic stop. Consequently, the transaction could not provide reasonable suspicion for Officer Holmes to stop Blair.

A case “remarkably similar on its facts to that faced by the Fourth Circuit in Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007),” involved a handcuffed arrestee who the defendant officer was attempting to Taser and shot with a Glock instead. Here, however, the arrestee died. The inquiry is reasonableness, but that question was not decided by the district court, so the case is remanded. Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008):

Henry concluded, and we agree, that five factors were relevant to the reasonableness determination: (1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that he was holding a handgun; (4) whether the defendant’s conduct heightened the officer’s sense of danger; and (5) whether the defendant’s conduct caused the officer to act with undue haste and inconsistently with that training. Henry, 501 F.3d at 383.

While these factors are relevant to the determination of whether Officer Noriega acted reasonably, we also stress that “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments.” Graham, 490 U.S. at 396-97. Since the parties did not brief the issue of whether Officer Noriega’s mistake was a reasonable one, the factual record is insufficiently developed for this court to make this determination, and we remand to the district court to determine in the first instance whether Noriega’s conduct was unreasonable under Graham, 490 U.S. at 396-97, and to otherwise proceed with the matter.

The defendant succeeding in making his “substantial preliminary showing” under Franks that the officer omitted significant facts from the affidavit that undermined the probable cause because of an apparently illegal entry into the curtilage to gain the information that made it into the application for the search warrant. United States v. Tate, 524 F.3d 449 (4th Cir. 2008):

Tate’s showing reduces to the claim that in order for Agent Manners to have investigated Tate’s trash, which provided the essential basis for demonstrating probable cause, Agent Manners would have had to jump the fence which enclosed Tate’s backyard, trespass on Tate’s property, and search trash that was stored in a container that had not been abandoned for pickup. He supports these claims with the following proffered facts: (1) the trash investigation took place, according to Agent Manners, on a Thursday; (2) the trash was not to be picked up until the following Saturday; (3) on non-trash-pick-up days, the practice followed at Tate’s residence was to store trash in a trash container near the rear steps of the house which was not accessible from public areas without trespassing; (4) the backyard of Tate’s residence, in which the trash container was kept on non-trash-pick-up days, was fenced with a gate that was always locked; (5) Agent Manners stated in a similar affidavit to obtain a search warrant offered in another case two months earlier that he had seized “two trash bags easily accessible from the rear yard” and that the trash bags were found in “a typical location for trash pickups and consistent to the location of neighbors”; (6) in the affidavit in this case, the language was similar but did not include the last clause that the bags were found in “a typical location for trash pickups and consistent to the location of neighbors”; and (7) the result of Agent Manners’ trash search was necessary to a showing of probable cause in this case.

If Tate is correct about his proffered facts, Agent Manners did not omit only insignificant details of the trash investigation. He omitted important facts and circumstances that, if true, were essential to the constitutionality of the trash investigation. The proffered facts tend to show that Agent Manners may have violated Tate’s reasonable expectation of privacy because the trash was not out at the curb for collection on the date of Agent Manners’ search but rather in a container near the rear steps of the home. Also, based on Agent Manners’ affidavit from another case involving a trash search, where he described the trash as being at the typical location for pickup, Agent Manners may have deliberately omitted that language from his affidavit in this case. Tate argues that the inclusion of the statement in the previous affidavit that the trash was found in “a typical location for trash pickups and consistent to the location of neighbors” reveals that Agent Manners knew the requirements for a trash search and therefore that his omission of this information from the current affidavit, when coupled with the evidence that the trash was likely not out at the curb for pickup at the relevant time, indicates an intentional and knowing falsehood on the part of Agent Manners that was designed to mislead the issuing judge.

Although it is certainly true that the trash bags at issue here may in fact have been in a location consistent with their having been abandoned for collection or that Agent Manners may not have included the more descriptive sentence he used in the earlier affidavit out of an exercise of caution resulting from not knowing the “typical location” for trash collection in the area, Tate’s evidence at this stage is sufficient to constitute a “substantial preliminary showing” of a deceptive omission, as required by Franks. 438 U.S. at 155 (emphasis added). (emphasis added)

Recognizing a split of authority among the circuits, and an absence of controlling precedent in the Eleventh Circuit, the Middle District of Florida follows the weight of authority and holds that an unauthorized driver does not have standing in a rental car. United States v. Crisp, 542 F. Supp. 2d 1267 (M.D. Fla. 2008):

While the Eleventh Circuit has remained silent on the issue before this Court, several other circuit courts of appeal have issued decisions considering whether an unauthorized driver of a rented vehicle can challenge a search of that vehicle. Indeed, the Fourth, Fifth, Sixth, and Tenth Circuit Courts of Appeal have recognized that, as a general proposition, an unauthorized driver of a rental vehicle does not have a legitimate expectation of privacy in the vehicle, even though he or she received permission from the lessee to operate it. See United States v. Seeley, 331 F.3d 471, 472 (5th Cir. 2003) (per curiam); United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001 ); United States v. Edwards, 242 F.3d 928, 936 (10th Cir. 2001); United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994); United States v. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990); United States v. Boruff, 909 F.2d 111, 117 (5th Cir. 1990); United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir. 1984).

Some decisions from the Eighth and Ninth Circuit Courts of Appeals, on the other hand, arguably support the conclusion that an unauthorized driver of a rental vehicle, who has permission from the authorized lessee, can challenge the search of that vehicle. See United States v. Thomas, 447 F.3d 1191, 1198-99 (9th Cir. 2006); United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998); United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995) (per curiam); see also United States v. Dennis, Criminal Action No. 06-650-01, 2007 U.S. Dist. LEXIS 54526, 2007 WL 2173394, at **5-6 (E.D. Penn. July 26, 2007). Upon review, however, these decisions are less persuasive. For example, in Thomas, the court opined that “an unauthorized driver who received permission to use a rental car and has joint authority over the car may challenge the search to the same extent as the authorized renter.” 447 F.3d at 1199. In reaching this conclusion, the Ninth Circuit specifically relied on its previous decisions establishing that a holdover lessee and a driver who has permission from the owner to use a vehicle both have reasonable expectations of privacy. See id. at 1198. However, the Eleventh Circuit, in its decisions on these issues, explicitly noted a distinction between one who has permission of the owner or properly rented a vehicle (but breached the contract by not returning the vehicle as promised) and one who, without authorization from the owner, simply utilizes the vehicle, albeit with permission from the renter. See Cooper, 133 F.3d at 1400; Miller, 821 F.2d at 548.

The Washington Supreme Court held Thursday that random drug testing of student athletes violates the state constitution’s privacy provision, rejecting the state’s “special needs” argument and rejecting Vernonia School Dist. 47J v. Acton, under which the school district was held to have modeled its policy. York v. Wahkiakum Sch. Dist. No. 200, 163 Wn. 2d 297 (2008):

II. Suspicionless, Random Drug Testing Disturbs a Student Athlete’s Private Affairs.

When inquiring about private affairs, we look to “‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.'” State v. Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994) (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). This is an objective analysis.

The private affair we are concerned with today is the State’s interference in a student athlete’s bodily functions. Specifically, does it intrude upon a privacy interest to require a student athlete to go into a bathroom stall and provide a urine sample, even against that student’s protest? Federal courts and our court both agree the answer is an unqualified yes, such action intrudes into one’s reasonable expectation of privacy. Robinson v. City of Seattle, 102 Wn. App. 795, 813 n.50, 10 P.3d 452 (2000) (citing Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989); In re Juveniles A, B, C, D, E, 121 Wn.2d 80, 90, 847 P.2d 455 (1993); State v. Olivas, 122 Wn.2d 73, 83, 856 P.2d 1076 (1993); State v. Meacham, 93 Wn.2d 735, 738, 612 P.2d 795 (1980); State v. Curran, 116 Wn.2d 174, 184, 804 P.2d 558 (1991)). Indeed, we offer heightened protection for bodily functions compared to the federal courts. Robinson, 102 Wn. App. 795.

But the school district claims student athletes have a lower expectation of privacy. Certainly, students who choose to play sports are subjected to more regulation. For example, RCW 28A.600.200 provides, “Each school district board of directors is hereby granted and shall exercise the authority to control, supervise and regulate the conduct of interschool athletic activities.” And certainly there is generally less privacy in locker rooms than in other parts of a school. But the district does not link regulations and the communal atmosphere of locker rooms with a student’s lowered expectation of privacy in terms of being subjected to suspicionless, random drug testing. We do not see how what happens in the locker room or on the field affects a student’s privacy in the context of compelling him or her to provide a urine sample. A student athlete has a genuine and fundamental privacy interest in controlling his or her own bodily functions. The urinalysis test is by itself relatively unobtrusive. Nevertheless, a student is still required to provide his or her bodily fluids. Even if done in an enclosed stall, this is a significant intrusion on a student’s fundamental right of privacy. See Robinson, 102 Wn. App. at 822.

This analysis should in no way contradict what we have previously said about students’ privacy interests. Generally we have recognized students have a lower expectation of privacy because of the nature of the school environment. …

The Seattle Post-Intelligencer article is here.

Open beer can in a Kansas traffic stop led two officers to conduct a search for other open containers, and that led to a search of a Crown Royal bag in the backseat [and just how would an open container be in the bag if it was not apparent that a bottle of Crown Royal was in it?] which produced drug paraphernalia. That gave PC for a further search of the vehicle which produced meth. Defendant’s life sentence affirmed. United States v. Howton, 260 Fed. Appx. 813, 2008 FED App. 0058N (6th Cir. 2008) (unpublished).*

M.R.E. 317(a) on electronic surveillance in the Armed Forces does not incorporate state law on one party consent to a recording. So, a recording that may have violated Hawai’i law was not barred in a court martial. United States v. Toy, 65 M.J. 405 (CA AF 2008).*

Even taking defendant’s investigator’s affidavit as true, insufficient information was provided to require a Franks hearing. United States v. Pantojas, 2007 U.S. Dist. LEXIS 95858 (D. P.R. October 3, 2007).*

Arrest for disorderly conduct for excessive noise under Alaska law requires that the officer warn the defendant to stop and then for the defendant to continue. Thus, the arrest here was without probable cause. Tuttle v. State, 175 P.3d 60 (Alas. App. 2008).*

Four plaintiffs retained an expectation of privacy in a storage unit rented by one where they agreed to put their stuff there. Garcia v. Dykstra, 260 Fed. Appx. 887, 2008 FED App. 0074N (6th Cir. 2008).

Telling a suspect police would seek a search warrant if consent was not granted was not coercive because, if they have probable cause, they have the ability to get a search warrant. United States v. Giles, 2008 U.S. Dist. LEXIS 7177 (M.D. Pa. January 31, 2008)*:

The court now turns to the statements allegedly made by Detective Johnson. First, his statement that he would get a search warrant must be distinguished from the statements made by agents in Bumper v. North Carolina, 391 U.S. at 550. In Bumper, law enforcement officers claimed authority to search a home because they were in possession of a warrant, in effect announcing “that the occupant ha[d] no right to resist the search.” 391 U.S. at 550. The Supreme Court held that consent given after such a statement was invalid because it was coerced. Id. Here, however, assuming Johnson made the statements that he did, he did not claim that he already had a warrant; he said that he would get one. The police are entitled to seek a search warrant if they have probable cause. Giving a suspect the choice of consenting first is not, in itself, coercive behavior akin to that in Bumper. See United States v. Ivy, 165 F.3d 397, 403 (8th Cir. 1998); Mack, 796 A.2d at 970-71.

A traffic offense that does not support an arrest does not justify a search incident. Combs v. State, 878 N.E.2d 1285 (Ind. App. 2008).

Federales conducted a warrant sweep in public housing based on a determination that fugitives were living in public housing. A phone call was made concerning whether the defendant would be extradited if arrested, and they were assured that he would be. He contended that they would not bother to extradite. When the entry was made on the warrant, a gun was found and that was what he was prosecuted for. The entry was reasonable, and defendant cites no authority for the fact that the other jurisdiction really did not want to bother to extradite did not make it unreasonable. United States v. Jones, 260 Fed. Appx. 769, 2008 FED App. 0022N (6th Cir. 2008) (unpublished).*

The exclusionary rule does not apply to alien removal proceedings. Pietrzak v. Mukasey, 260 Fed. Appx. 337 (2d Cir. 2008).*

The search of defendant’s vehicle would inevitably have occurred as an inventory because his license was expired, so his other arguments do not need to be resolved. United States v. Martinez, 512 F.3d 1268 (10th Cir. 2008).*

Drug search warrant with information from a CI that was a month old by the time the CI could give the precise location of defendant’s home was not stale. [This is an adoption of the USMJ’s R&R, so the details are lacking.] United States v. Deleon-Bayardo, 2008 U.S. Dist. LEXIS 2767 (D. Minn. January 14, 2008).*

One officer was not entitled to qualified immunity for a search warrant that was issued without probable cause or a reason to believe it was properly issued. KRL v. Estate of Moore, 512 F.3d 1184 (9th Cir. 2008), prior appeal KRL v. Moore, 384 F.3d 1105 (9th Cir. 2004):

Thus, when analyzing Hall’s role pursuant to the January 13 warrant, it is most useful to ask the question posed in Saucier: “whether it would be clear to a reasonable officer [in Hall’s position] that his conduct was unlawful in the situation he confronted.” 533 U.S. at 202. Given his leadership role in the overall investigation, Hall acted unreasonably when he relied on the January 13 warrant without first ensuring that the warrant was facially valid. As we previously concluded, any reasonable officer making such an inquiry would conclude that the discovery of a ledger and several checks predating the allegedly fraudulent activity by five years did not provide sufficient probable cause to search for documents dating back to 1990. See KRL, 384 F.3d at 1117.

Officers hung outside a house that the neighbors were complaining about because of crime and too many people congregating there. They encountered the defendant outside and asked for his identification, and he backed up. Defendant’s furtive movements gave reasonable suspicion for a patdown. State v. Green, 2008 Iowa App. LEXIS 170 (March 14, 2008):

Further, the officers here were aware this was a high-crime area because they had received many complaints from the neighbors regarding drug dealing activity, dog fighting, drinking, and general disorderly conduct. In addition to these general complaints, there had been approximately three calls where police actually had to go to the address in question on formal complaints. Although an “individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime”, “the fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570, 576 (2000) (citation omitted).

Accordingly, we conclude that based on Green’s furtive movements, the officer’s experience and knowledge that the area in question was a high-crime area, and all other surrounding circumstances, Officer McGeough had a reasonable, articulable suspicion that his safety or that of others was in danger. He thus was warranted in proceeding with a Terry protective weapons pat-down of Green at that point in time.

During the pat-down, Officer McGeough felt a bulge in the back pocket Green had been reaching toward repeatedly. Upon lifting the tail of Green’s shirt to look at the bulge McGeough saw a plastic baggie sticking out of Green’s pocket. Based on his training and experience, as well as all of the other surrounding circumstances, McGeough believed that type of baggie likely contained narcotics. Accordingly, McGeough had probable cause to remove the baggie from Green’s pocket because he believed it to contain contraband. See Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334, 340 (1993) (holding an officer may conduct a protective weapons search or pat-down of a suspect’s outer clothing and may seize an object if its incriminating nature is immediately apparent through size or shape); State v. Harriman, 737 N.W.2d 318, 320-21 (Iowa Ct. App. 2007) (finding that because officer was immediately certain item was contraband without manipulating it the item was properly discovered under “plain-feel” exception to warrant requirement). Upon confirming the contents of the baggie McGeough had probable cause to arrest Green on suspicion of drug possession. McGeough then arrested Green, placed him in handcuffs, read him his Miranda rights, and put him in the squad car. For purposes of this appeal we conclude Green was in custody from the point when he was arrested and handcuffed by Officer McGeough.

Just because the officer could not see defendant’s license plate at 100′ did not mean that he could not see it at 50′, and the court would not make that assumption. The stop was invalid. State v. Reisetter, 747 N.W.2d 792 (Iowa App. 2008).*

Defendant’s lane changes justified his stop. State v. Mann, 2008 Iowa App. LEXIS 143 (March 14, 2008).

An arrest on a failure to appear warrant permitted a search incident. “It is not the reason for the arrest, but that an arrest must be made that creates risk of harm to the arresting officer.” The court notes it expressly disagrees with State v. Bradshaw, 99 S.W.3d 73 (Mo. App. 2003) [inviting SCOTUS review]. People v. Mungo, 277 Mich. App. 577, 747 N.W.2d 875 (2008):

It is not the reason for the arrest, but that an arrest must be made that creates risk of harm to the arresting officer. Upon discovering that at least one warrant was issued for Dixon’s arrest, Deputy Stuck was obligated by statute to arrest Dixon. MCL 764.9e; MCL 764.1b. We conclude that in carrying out his statutory duty, Deputy Stuck was not constitutionally precluded from searching the area Dixon occupied just prior to his arrest.

Belton and Thornton support the adoption and implementation of the bright line rule in this case. The rule of Belton was originally based on a concern for the safety of law enforcement officials and the need to preserve any evidence that may be in the car. Belton, supra. The rule has since been interpreted to permit a full search of the interior of an automobile even when the arrestee has been removed from the car, handcuffed, and placed in a secure area, thus alleviating concerns of officer safety and preservation of any evidence contained in the car. United States v Karlin, 852 F2d 968 (CA 7, 1988). This plain interpretation of Belton is warranted by the need for a bright line rule that allows police officers to make accurate and quick decisions in the field. Id. Fourth Amendment jurisprudence thus supports the constitutionality of the search at issue in this case.

A Canadian wiretap that assisted a prosecution here was not subject to a motion to suppress in the United States under Verdugo-Urquidez. United States v. Smida, 2008 U.S. Dist. LEXIS 42417 (C.D. Cal. May 1, 2008).*

Probable cause existed for defendant’s arrest. Because he premised his search incident of the cellphone on lack of probable cause for arrest, the question is left open. United States v. Gutierrez, 2008 U.S. Dist. LEXIS 42322 (D. N.M. January 4, 2008):

The federal district court in United States v. Parada has reasoned that an officer’s search of the cellular telephone memory for the numbers of incoming phone calls was a separate question supportable by exigent circumstances because the agent in that case was concerned about subsequent incoming calls erasing earlier stored numbers. See United States v. Parada, 289 F.Supp.2d at 1303-1304. The United States bears the burden of proving exigency. See Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003). One federal district court has found that the United States did not carry its burden to demonstrate exigency by a preponderance of the evidence where “[o]fficers did not search the [cellular] phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence … [where] the purpose was purely investigatory.” United States v. Park, 2007 WL 15211573 at * 8. Because Gutierrez relied upon a lack of probable cause for his suppression motion, the Court need not address the issue of whether the warrantless search of Gutierrez’ cellular telephone was justified. Gutierrez did not specifically request that the information obtained from his cellular telephone be suppressed or be suppressed for some reasons other than the lack of probable cause.

This website was listed as one of the top 100 criminal justice blogs this week. So was my other blog, lawofcriminaldefense.com.

Whether it qualifies as a blog, I don’t know, considering the breadth of the definition, it apparently is. Never thought about it.

Affidavit for search of computer for child porn was sufficient where it alleged nonsexual pictures of a young woman along with defendant’s acts toward her which showed a fair probability that child porn would be found. “[A] search warrant for child pornography stored on a computer need not be restricted to the images that authorities have already seen or know to exist.” The search warrant was overbroad as to some things not child porn since probable cause was lacking as to them. United States v. Ogden, 2008 U.S. Dist. LEXIS 42216 (W.D. Tenn. May 28, 2008).*

Plaintiff’s rights as a father were not violated by an alleged Fourth and Fourteenth Amendment violation against his son who was put into foster care when the mother was found to have tested positive for methamphetamine. McHugh v. Ind. Family & Soc. Servs. Admin., 2008 U.S. Dist. LEXIS 42268 (S.D. Ind. May 27, 2008).*

Fellow officer rule applies between DEA with PC and a local officer when they had PC to stop and search defendant’s car based on a CI’s statement. Even if there was no probable cause, there was at least reasonable suspicion, and the rest lawfully followed. United States v. Sellers, 2008 U.S. Dist. LEXIS 42260 (N.D. Ind. May 20, 2008).*

Officer saw a cocked gun in defendant’s yard by looking over the fence, and there was a 7 year old child in the yard. The entry into the yard was justified by exigent circumstances. People v. Chavez, 161 Cal. App. 4th 1493, 75 Cal. Rptr. 3d 376 (3d Dist. March 27, 2008), ordered published April 17, 2008:

The People first contend that no search occurred because Officer Leahy observed the revolver in plain sight while lawfully positioned in defendant’s front yard in an area open to the public. Secondly, the People contend that the subsequent warrantless entry into defendant’s side yard was justified by the exigency of a cocked revolver at a residence with a seven-year-old child. We agree with the People that Officer Leahy’s observations of the gun from over the fence did not amount to a search and his subsequent entry into defendant’s yard was justified by exigent circumstances. Therefore, the trial court erred in granting defendant’s motion to suppress. Accordingly, we will reverse the judgment of dismissal.

Officers had a tip that a fugitive was at defendant’s house. When they arrived they saw two men enter, one with a gun, and they got to the door and saw a gun on the floor. That was sufficient exigency for an entry to secure the weapon. United States v. Scott, 2008 U.S. Dist. LEXIS 31076 (M.D. Fla. April 15, 2008)* (“The Court finds this case analogous to the circumstances in United States v. McCoy, 2007 WL 4393973 (11th Cir. 2007).”).

IRS summons enforcement action does not require that the IRS show probable cause to believe that it will find anything. All that is needed under Powell is a legitimate purpose. United States v. Schlabach, 2008 U.S. Dist. LEXIS 41353 (E.D. Wash. April 18, 2008).*

The justifiable extension of the detention was reasonable when it was caused by the language barrier between the officer and the defendant. United States v. Martinez, 2008 U.S. App. LEXIS 11267 (5th Cir. May 27, 2008) (unpublished).*

Temporary tag in the window was properly displayed and the videotape showed it, so the stop based on its being improperly displayed was invalid. United States v. Ontiveros-Salazar, 2008 U.S. Dist. LEXIS 41248 (D. Utah May 22, 2008).*

“The transcript of the motion to suppress in Davenport’s case bears witness to Davenport having had ‘both the incentive and the, opportunity to fully and fairly litigate the issues in the criminal proceeding,’ Pattershall v. Jenness, 485 A.2d 980, 983 (Me. 1984), and under these circumstances, it would be fair to preclude Davenport from raising his probable cause for arrest argument as well as his investigatory stop claim.” Davenport v. City of Caribou, 2008 U.S. Dist. LEXIS 41448 (D. Me. May 22, 2008).*

A landlord could not claim a privacy interest in the requirements of a local ordinance that required disclosure of the names of tenants. Lopez v. City of Oil City, 2008 U.S. Dist. LEXIS 25684 (W.D. Pa. March 31, 2008).*

Defendant lacked standing to challenge physical manipulation and search of the duffle bags in the van that defendant did not claim. If he did claim them, he likely would have had standing. United States v. Worthon, 520 F.3d 1173 (10th Cir. 2008).*

Forcing a suspect to the ground during a Terry stop is not always unreasonable. “‘[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.’ Graham v. Connor, 490 U.S. 386, 396 (1989).” Cotton v. D.C., 541 F. Supp. 2d 195 (D. D.C. 2008).*

Seatbelt violation justified defendant’s stop, and the court finds that he consented to the search. United States v. Taylor, 2008 U.S. Dist. LEXIS 25805 (C.D. Ill. March 31, 2008).*

Massive document and computer search of sub S business was justified. The affidavit detailed allegations of embezzlement by the owner of the company from the employee benefit plan. United States v. Dougherty, 541 F. Supp. 2d 734 (E.D. Pa. 2008):

The warrant in this case is markedly different from the warrant in Leary. Instead of a single paragraph with a generic statutory reference appended, the warrant here breaks the items to be seized down into 24 particularized categories of documentary evidence and 7 categories of computer-related evidence. See Affidavit, Attachment B.

Dougherty has not pointed to a single paragraph in the list of items seized that is deficient in a manner similar to the generic items listed in Leary. To the contrary, each paragraph of the warrant here is highly specific and particularized. Three representative examples are set forth below:

All documents relating to communications concerning International Brotherhood of Electrical Workers [“IBEW”] Local Union 98 Pension Plan (“the Plan”) and Collective Bargaining Agreement, including, but not limited to communications concerning the Plan between, or among, [Dougherty Electric] or any of its agents or representatives and any, of the following: any trustee of the Plan, any official of [Dougherty Electric], any plan official, fiduciary, or service provider.

. . .

All records relative to the personal use of any business asset, including cash or its equivalent, of [Dougherty Electric] by [Dougherty], his family, and/or any non-employee.

. . .

Any and all tax returns and supporting tax documentation including Federal, state or local individual and business tax returns, filed and unfiled, all Forms W-2, W-3, W-4 and 1099, filed and unfiled; and any supporting work papers, financial statements, audit/review/compilation reports, summary sheets, and analyses used in the preparation of the individual and business tax returns and Forms W-2, W-3, W-4 and 1099 relating to [Dougherty] and [Dougherty Electric], for the period January 2000 through the present.

Affidavit, Attachment B, PP 1.B, 1.R, 1.W.

The warrant contains no generic and unspecified references to records that any business might have; rather the categories of items are tailored to specific and relevant aspects of Dougherty Electric’s business. Dougherty’s argument that the warrant had no limitations on the items to be seized is belied by the specificity of the warrant’s language. The warrant was limited in at least three respects: 1) it specifically delineated the type (and sub-type) of document or item sought, 2) it limited the relevant time period from January 2000 to January 27, 2006, and 3) it generally limited the items to those relating to Dougherty, Dougherty Electric, and the IBEW union.

The Ninth Circuit reversed a holding of the District Court that a customs search of defendant’s laptop at LAX Customs was unreasonable. A laptop is no different than luggage, and applying a higher standard to it, the same standard as a search of the person, is not justified. United States v. Arnold, 523 F.3d 941 (9th Cir. 2008):

Courts have long held that searches of closed containers and their contents can be conducted at the border without particularized suspicion under the Fourth Amendment. Searches of the following specific items have been upheld without particularized suspicion: (1) the contents of a traveler’s briefcase and luggage, United States v. Tsai, 282 F.3d 690, 696 (9th Cir. 2002); (2) a traveler’s “purse, wallet, or pockets,” Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967); (3) papers found in containers such as pockets, see United States v. Grayson, 597 F.2d 1225, 1228-29 (9th Cir. 1979) (allowing search without particularized suspicion of papers found in a shirt pocket); and (4) pictures, films and other graphic materials. See United States v. Thirty-Seven Photographs, 402 U.S. 363, 376, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971); see also 12,200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 124-25, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973) (“Import restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations.”).

Nevertheless, the Supreme Court has drawn some limits on the border search power. Specifically, the Supreme Court has held that reasonable suspicion is required to search a traveler’s “alimentary canal,” United States v. Montoya de Hernandez, 473 U.S. 531, 541, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985), because “‘[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusion [beyond the body’s surface] on the mere chance that desired evidence might be obtained.'” Id. at 540 n.3 (quoting Schmerber v. California, 384 U.S. 757, 769, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)). However, it has expressly declined to decide “what level of suspicion, if any, is required for nonroutine border searches such as strip, body cavity, or involuntary x-ray searches.” Id. at 541 n.4 (emphasis added). Furthermore, the Supreme Court has rejected creating a balancing test based on a “routine” and “nonroutine” search framework, and has treated the terms as purely descriptive. See United States v. Cortez-Rocha, 394 F.3d 1115, 1122 (9th Cir. 2005).

Other than when “intrusive searches of the person” are at issue, Flores-Montano, 541 U.S. at 152 (emphasis added), the Supreme Court has held open the possibility, “that some searches of property are so destructive as to require” particularized suspicion. Id. at 155-56 (emphasis added) (holding that complete disassembly and reassembly of a car gas tank did not require particularized suspicion). Indeed, the Supreme Court has left open the question of “‘whether, and under what circumstances, a border search might be deemed ‘unreasonable’ because of the particularly offensive manner in which it is carried out.'” Id. at 155 n.2 (quoting Ramsey, 431 U.S. at 618 n.13).

C

In any event, the district court’s holding that particularized suspicion is required to search a laptop, based on cases involving the search of the person, was erroneous. Its reliance on such cases as United States v. Vance, 62 F.3d 1152, 1156 (9th Cir. 1995) (holding that “[a]s the search becomes more intrusive, more suspicion is needed” in the context of a search of the human body), to support its use of a sliding intrusiveness scale to determine when reasonable suspicion is needed to search property at the border is misplaced. United States v. Arnold, 454 F. Supp. 2d 999, 1002-04 (C.D. Cal. 2006).

The Supreme Court has stated that “[c]omplex balancing tests to determine what is a ‘routine’ search of a vehicle, as opposed to a more ‘intrusive’ search of a person, have no place in border searches of vehicles.” Flores-Montano, 541 U.S. at 152. Arnold argues that the district court was correct to apply an intrusiveness analysis to a laptop search despite the Supreme Court’s holding in Flores-Montano, by distinguishing between one’s privacy interest in a vehicle compared to a laptop. However, this attempt to distinguish Flores-Montano is off the mark. The Supreme Court’s analysis determining what protection to give a vehicle was not based on the unique characteristics of vehicles with respect to other property, but was based on the fact that a vehicle, as a piece of property, simply does not implicate the same “dignity and privacy” concerns as “highly intrusive searches of the person.” Flores-Montano, 541 U.S. at 152.

Furthermore, we have expressly repudiated this type of “least restrictive means test” in the border search context. See Cortez-Rocha, 394 F.3d at 1123 (refusing to fashion a “least restrictive means test for border control vehicular searches, and … refus[ing] to tie the hands of border control inspectors in such a fashion”). Moreover, in both United States v. Chaudhry, 424 F.3d 1051, 1054 (9th Cir. 2005) (finding the distinction between “routine” and “non-routine” inapplicable to searches of property) and Cortez-Rocha, 394 F.3d at 1122-23, we have recognized that Flores-Montano rejected our prior approach of using an intrusiveness analysis to determine the reasonableness of property searches at the international border.

Comment: These laptop border search cases have generated blog entries showing the concern of business travelers, even those without child porn, noted here and here back in February.

It readily became apparent that plaintiff was not the person wanted on the arrest warrant when processing at the jail began and she had no tattoos or moles as described in their paperwork. Nonetheless, they processed her, strip searched her, and mocked her when she was standing there naked and began lactating. She satisfied overcoming qualified immunity. Her initial arrest was for having too many of her nine children in the car with her. Archuleta v. Wagner, 523 F.3d 1278 (10th Cir. 2008):

Deputy Mandelko also could not have had reasonable suspicion that Ms. Archuleta had a weapon under these circumstances. Reasonable suspicion for a search is a minimum level of objective justification “based on the totality of the circumstances, taking into account an officer’s reasonable inferences based on training, experience, and common sense.” United States v. Rice, 483 F.3d 1079, 1083 (10th Cir. 2007). “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that [her] safety or that of others was in danger.” Id. at 1082-83 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). In this case, based upon the clothing Ms. Archuleta was wearing, the three “pat downs” she endured prior to being booked, and the absence of any tattoos or moles indicating she was the culprit, Deputy Mandelko could not reasonably suspect that Ms. Archuleta had a weapon on her person. See Foote, 118 F.3d at 1425.