Defendant purchased a car for modification and use in drug transportation, but he was careful to have deniability as to ownership because nothing was to be in his name. The police during the investigation of the conspiracy got a warrant for installation of a GPS system in the car. The defendant’s ownership interest in the car was not enough considering the lengths he went to to disassociate himself from the car in case it was seized by the police. People v. Tolliver, 160 Cal. App. 4th 1231, 73 Cal. Rptr. 3d 375 (3d Dist. 2008):

Although cases such as Hawkins are analogous to this case, they are not precisely on point because Villasenor did not verbally disclaim the Concorde before it was searched. What he did, however, was more reprehensible. While in Hawkins, the defendant, acting on the spur of the moment, disclaimed ownership of a suitcase that he knew contained a controlled substance, Villasenor orchestrated an attempt to accomplish the same purpose by careful advanced planning and exploitation of others. As one of the leaders of the conspiracy, he sought to have others take the blame if the illegal acts were detected. Under these circumstances, we agree with the trial court that society does not recognize as legitimate any subjective expectation of privacy that Villasenor had. His expectation of privacy was illegitimate. (California v. Ciraolo, supra, 476 U.S. at pp. 207, 211, 219-220.)

California’s Fourth District holds that it was not error to strike the defendant’s testimony at a suppression hearing where the prosecutor on cross examination went into the merits of the case, not just the search issue, as to how the defendant came to know about the marijuana and what she intended to do with it because it was relevant to her credibility on the suppression motion. Defense counsel invoked the Fifth on cross, so the trial court struck her testimony. No alternative to striking the testimony was offered by the defense. People v. Seminoff, 159 Cal. App. 4th 518, 71 Cal. Rptr. 3d 582 (4th Dist. 2008):

The prosecutor then asked her if she intended to sell the marijuana, and that prompted the same objection from defense counsel. Again, the court overruled the objection. It warned defense counsel that unless Bassett answered the prosecutor’s questions, the court would strike her testimony in its entirety. The court then took a short break to allow defense counsel to converse with Bassett.

When the hearing resumed, defense counsel said Bassett was willing to proceed with cross-examination on a question-by-question basis. He also indicated that, based on the court’s previous rulings, she was willing to answer questions about whether she intended to sell the marijuana. However, when the prosecutor asked her that question, defense counsel objected on both relevancy and Fifth Amendment grounds. In overruling the objections, the court stated “cross-examination should be allowed to reveal whether or not, among other things, [Bassett] has a coherent credible story about the events involved, whether or not she can remember details, whether or not she has an interest in the outcome.” The court also told defense counsel that if Bassett continued to invoke her privilege against self-incrimination, it would have no choice but to strike her testimony. When defense counsel responded that Bassett was not going to answer the prosecutor’s questions about the marijuana, the court did just that.

Comment: This case does not even cite Simmons that a defendant’s testimony at a suppression hearing cannot be used at the trial unless the defendant testifies contrary to it. Here, the trial judge told the defendant that her testimony could be used against her at trial. This case is strange and unsupported under the Fifth and Fourth Amendments, and should be reviewed by the California Supreme Court.

Defendant’s illegal detention did not have to be more aggressive than it was to make the officer’s subsequent actions part of the poisonous tree. People v. Packer, 49 A.D.3d 184, 851 N.Y.S.2d 40 (1st Dept. 2008):

The necessity of rejecting the People’s claim of voluntariness in this situation is not at all diminished by the circumstance that defendant was not more aggressively detained. Contrary to the People’s contention, the conclusion that defendant was illegally seized for Fourth Amendment purposes during his encounter with Jones is not rendered less compelling by the fact that he was not at the time of his consent formally arrested and placed in handcuffs. Nor, given the conceded directly antecedent illegality and the unjustified continued detention of defendant, can it avail the People that Officer Jones’s request for identification was unobjectionable or that his request to search defendant’s backpack might otherwise have elicited a consent that it would be possible to characterize as voluntary. The salient and dispositive circumstance under Hollman and Banks is that defendant’s consent was contemporaneous with, or at the very least immediately followed, his subjection to an illegal frisk and detention.

Search incident was supported by abundant probable cause for an arrest, and, even if not, the search would have been supported by the inventory exception. United States v. Lottie, 2007 U.S. Dist. LEXIS 95999 (N.D. Ind. October 12, 2007).*

Defendant could not be charged with obstruction for not permitting officers entry into his apartment for execution of an arrest warrant on another because he had a right to insist on a search warrant under Steagald if it was his apartment. The charging document had to allege sufficient facts to show that the entry was permitted to support the charge, and this one did not. People v. Rodriquez, 19 Misc. 3d 302, 851 N.Y.S.2d 342 (2008). (Comment: The way this opinion reads, the gap in the proof gives the prosecution the opportunity to allege sufficient facts to at least make the charge stick, if they have them.)

Furtive movement of reaching toward one’s back can alone be reasonable suspicion when the officer is alone and outnumbered. State v. McDaniel, 2008 Wisc. App. LEXIS 120 (February 12, 2008).

Strip searches of inmates moving from one part of the jail to another without regard to what the inmate is in for do not violate the Fourth Amendment. Jackson v. Herrington, 2008 U.S. Dist. LEXIS 34677 (W.D. Ky. April 28, 2008):

Finally, in Sutton v. Hopkins County, this Court held that a detention center’s policy of strip-searching all transferred detainees was constitutional because it was reasonable under the circumstances. 2007 U.S. Dist. LEXIS 3150. Specifically, the Court observed:

A detainee who has been incarcerated in another facility has potentially been exposed to contraband, especially if the facility has lenient procedures with respect to court appearances, contact visits, medical programs, and work programs. Additionally, just as in Richerson, detainees that are transported from one facility to another are transported through areas to which the public may have access. Therefore, these contacts outside of the jail provide opportunities for transferees, even those charged with non-violent, non-drug related offenses, to obtain contraband before they enter the…[j]ail.

Sutton, 2007 U.S. Dist. LEXIS 3150 at *15. The Court further noted that “[i]n the case of a transferred detainee, [a] detention facility is unaware of the security practices of the other facility and has absolutely no control over the transporting officer who supervised the detainee during transport.” 2007 U.S. Dist. LEXIS 3150 at *16.

The Court finds no meaningful distinction between the HCDC policy at issue here and the policies upheld by the Sixth Circuit in Watsy and by this Court in Sutton. The objective circumstances surrounding the transfer of every inmate from one detention facility to another give HCDC officials the reasonable suspicion necessary to conduct intake strip-searches on inmates transferred into HCDC. HCDC’s legitimate security interests outweigh the privacy rights of these inmates. Thus, the Court holds that the Defendants are entitled to summary judgment on the Plaintiff’s Fourth Amendment claim.

Not all tribal police officers involved in defendant’s arrest were commissioned officers under tribal ordinance. That does not, however, make the arrest in violation of the Fourth Amendment because his allegations that some were not when some were does not even allege a violation of the Fourth Amendment. United States v. High Wolf, 2008 U.S. Dist. LEXIS 33555 (D. S.D. April 23, 2008). (Compare Virginia v. Moore, posted here, decided the day after this was decided by the USMJ.)

Officer was in warm pursuit of a bank robber and saw suspect go into a residence. The officer knocked on the door of the residence, and the occupant consented to an entry. United States v. Rivers, 2008 U.S. Dist. LEXIS 33613 (E.D. Mich. April 24, 2008).*

Consent to search was found voluntary. Defendant was handcuffed in his own house and Mirandized, and he was normally intelligent. United States v. Wilding, 2008 U.S. Dist. LEXIS 33800 (E.D. Mo. April 24, 2008).*

Photographing defendant’s face to determine what type of “mace” he was sprayed with by the officer was not an illegal search. The photograph put the lie on the defendant’s story, and he was prosecuted for assault on an officer. Williams v. State, 2008 Ala. Crim. App. LEXIS 81 (April 4, 2008):

Professor LaFave cites Commonwealth v. DeWitt, 314 A.2d 27 (1973), as illustrative of those cases in which courts have determined that use of an ultraviolet light in such instances does not constitute a search. In that case, customs agents found hashish hidden in a table with a false top, which had been shipped into the United States from overseas. The agents treated the hashish with fluorescent grease, repackaged it, and allowed it to be delivered. Agents then went to the address where the delivery had been made to execute a warrant for the hashish. While there, they passed an ultraviolet light over the hands of the defendants and learned that they had handled the hashish. Just as in the instant case, the defendants claimed that use of the ultraviolet light constituted an illegal search. The Pennsylvania Superior Court disagreed and wrote as follows:

“[D]efendants had no reasonable expectation of privacy as to the presence of foreign matter on their hands independent of the expectation of the privacy of their premises, which had been legitimately invaded by the police. The grease may be compared to a physical characteristic, such as a fingerprint or one’s voice, which is ‘constantly exposed to the public.’, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed. 2d 67 (1973). The Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public.’ Katz v. United States, [389 U.S. 347] at 351 [(1967)]…. It is true that the grease could not be detected with the naked eye, but then, neither may a fingerprint be examined until there has been an application of ink. Furthermore, the examination was both limited and controlled, affording no opportunity to learn any information other than that specifically sought: Have the person’s hands been in contact with the treated contraband? In this respect, the examination was more circumscribed than any eavesdropping, electronic surveillance, long-distance viewing with binoculars, or even the use of a flashlight. Also, it involved no personal indignities or physical discomfort, and was neither annoying, frightening, or humiliating. Terry v. Ohio, 392 U.S. 1, 25, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968).

“In these circumstances the use of the ultraviolet light to examine defendants’ hands did not amount to a search. It may well be that in other circumstances an examination by ultraviolet light would amount to a search.”

DeWitt, 314 A.2d at 30-31. See also United States v. Ukomadu, 236 F.3d 333, 338 (6th Cir. 2001) (citing with approval United States v. Richardson, 388 F.2d 842, 845 (6th Cir. 1968) (holding “[w]e do not regard the examination of appellant’s hands under the ultraviolet light as a search within the meaning of the Fourth Amendment”)); United States v. Williams, 902 F.2d 678, 680-81 (8th Cir. 1990) (an ultraviolet light examination does not constitute a search for purposes of the Fourth Amendment); Williams v. City of Lancaster, 639 F.Supp. 377, 682 (E.D. Pa. 1986); and United States v. DeMarsh, 360 F.Supp. 132, 137 (E.D. Wis. 1973).

Defendant officers failed in their burden of showing that there were exigent circumstances for a warrantless entry into the plaintiff’s home. Kolesnikov v. Sacramento County, 2008 U.S. Dist. LEXIS 33155 (E.D. Cal. April 21, 2008):

Exigent circumstances supporting a warrantless arrest should seldom be found. LaLonde, 204 F.3d at 956 (“Supreme Court and Ninth Circuit cases have strictly limited the exigency exception, especially in the context of warrantless arrests in the home.”). Such circumstances are narrowly construed and limited to emergency situations demanding an immediate response to prevent serious injury to the arresting officers or other persons. Id. “The exigency exception can excuse a warrant for an in-home arrest when probable cause exists and there is a compelling reason for not obtaining a warrant-for example, a need to protect an officer or the public from danger, [a] need to avoid the imminent destruction of evidence, when entry in hot pursuit is necessary to prevent a criminal suspect’s escape, [or a need] to respond to fires or other emergencies.” Fisher, 509 F.3d at 960 (internal quotation marks omitted and alterations in original). Exigent circumstances alone, however, are not enough to establish exigency and thereby excuse the warrant requirement. Id. “Instead, [w]hen an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant.” Id. (internal quotation marks omitted). Consequently, a situation is exigent for purposes of permitting an arrest without a warrant only if a warrant could not be obtained in time to effect the arrest safely-that is, without causing a delay dangerous to the officers or to members of the public. Id. Where exigency is claimed, the government is required to either attempt, in good faith, to obtain a warrant or to present evidence explaining why a telephone warrant was unavailable or impractical. Id. at 961.

Omission of information from the officer that maybe should have been put in the affidavit didn’t detract from the probable cause already shown, so there was no Franks violation, and no hearing was required. United States v. Jones, 2008 U.S. Dist. LEXIS 33337 (S.D. Fla. April 23, 2008).*

Omissions from the affidavit did not detract from the probable cause, so a Franks hearing was not required. United States v. Stephens, 2008 U.S. Dist. LEXIS 33055 (N.D. Ind. April 21, 2008).*

Back in October was this post about Boulder CO school officials searching student cellphones: Colorado school searching students’ cellphones for text messages.

In a press release this week, the ACLU of Colorado announced that the school district agreed to desist:

LOUISVILLE, CO – A spokesperson for the ACLU of Colorado announced today that it welcomes a decision of the Boulder Valley School District (“BVSD”) to limit searches of students’ cell phone text messages, an issue the ACLU raised in a letter made public in October, 2007. In that letter, the ACLU asserted that non-consensual searches of text messages violate a Colorado criminal statute designed to protect the privacy of telephone and electronic communications.

New guidelines state that before searching text messages, BVSD administrators must not only satisfy the minimum federal constitutional standard for conducting a search, but must also obtain the consent of the student or parent. The only exception is an emergency in which there is an imminent threat to public safety.

“I commend the Boulder Valley School District for making a decision that protects students’ privacy and addresses the concerns raised in the ACLU’s letter,” said Mark Silverstein, ACLU Legal Director. “Meetings with the school district’s attorneys and ACLU representatives have been cordial and very productive.”

The Colorado statute makes it a crime to read, copy, or record a telephone or electronic communication without the consent of the sender or receiver. The ACLU’s October letter asserted that administrators at Monarch High School in Louisville had been violating the statute by seizing students cell phones; reading the text messages; transcribing messages administrators regarded as incriminating; and placing some transcriptions in students’ permanent files.

The school district denied violating the law but said that they wouldn’t do it anymore.

News stories are here (Daily Camera), here (Rocky Mtn. News), and here (Denver Post).

(Thanks to Erik Maulbetsch, of the ACLU of Colorado for the information.)

I was reading a child porn computer search case today, posted elsewhere, that again made me think about how easy it is for police to put in a search warrant application that they want to search for a computer. So, let me go on a little about the need for computer searches just because there is a computer in the placed to be searched:

What is the “nexus” of the computer to the evidence to be sought, practically, realistically, and actually? Is it hypothetical or real? Even if it is hypothetical, is that enough to get over the good faith exception? The case law is not all that helpful. Basic search principles lead to one result, but computer searches almost seem to be in the process of subconsciously trying to divide off into their own little world so they become subject to different rules. If it happens, it is result oriented jurisprudence that fails to adhere to basic Fourth Amendment principles. If Kyllo’s thermal imaging is governed by basic Fourth Amendment rules applied to new technology, then why are not computer searches governed the same way? There is no way that they should not be. (The DOJ computer search manual is listed on the right margin.)

As I have stated here before, I am seeing computer searches added virtually all the time into drug search warrant applications by state officers (not so much by federal), and this has been going on here for about three years. Apparently some police training “CLE” got them on to this, so they uniformly allege that “in affiant’s experience, drug dealers keep records on computers,” as if the run of the mill street dealer uses Quicken or Excel to keep a profit-loss statement. Even the Secret Service touts it on its computer search page: “For example, is a drug dealer maintaining his trafficking records in his computer?”

This I find extremely hard to believe, and ipso facto a virtual Franks false statement that needs to be cross-examined (subpoena records and training materials). My experience as a litigator tells me this is just plain false. In drug cases, once they have the computer local police seldom submit it to a search because the average narc or drug task force either got what they want or they don’t have the time to do a real forensic search of a computer. Besides, a forensic search is not cheap. So, what is the real need for it in any case? I have not had a drug case where drug transaction records were found on the computer. That does not mean it is not true, but, if it uniformly makes it into search warrant applications, why aren’t they actually looking? But, if they don’t look, what is the prejudice of seizing the computer because there was no search? If you ask for it back after the search, however, then they will search it. In their mind, you wouldn’t want it back if it wasn’t incriminating, ignoring the fact that it is worth $2,000 or that the client has plenty of personal or work files on the computer that the client needs.

The case I read today for some reason triggered a thought in my defense lawyer’s cynical mind: In an incidental computer search case (i.e., searches where the computer is only incidental to some other search, like a drug case), a police officer or prosecutor could attempt to make a plausible argument that some information on a computer likely is still kept or is still there because computer information does not easily disappear. The key to child porn cases is the child porn itself, not the computer, because the computer is merely a repository or the mechanism to acquire the child porn in the first place. That makes it likely to be kept. Indeed, in my experience from child porn cases, the material sometimes was quite old. The computer was merely a means to acquire it, but it usually is a repository as well.

We have all seen staleness arguments filtering through computer search cases that talk about the computer as the repository because child porn is kept for a reason. Occasionally it will surface in a non-child porn case, such as a business records case. Again, the business records exist in their own right, and the computer is merely a repository or a device for manipulating or managing data and making the business more efficient.

But, some computer search cases target the suspect’s computer because of its expected or potential use, seeking something that was supposed to be ephemeral and not kept. But, we know now that deleted documents and images can stay on computers for years, as long as the computer hasn’t overwritten the place where that deleted document still sits. Purely random chance determines whether a deleted document is gone. In a new computer or a computer with a new large hard drive that the user is not filling up, however, deleted documents can literally stay for the life of the computer. And don’t think that law enforcement officers don’t know that.

In homicide cases, for example, computers are often seized merely for the internet search history, sometimes striking pay dirt. (In the treatise, the first reported computer search case was over twenty years ago, and it was pre-Internet and acquired a ransom note.) As stated before, I have been seeing computers listed in search warrant affidavits for drug searches because the police are looking for information on buyers and sellers and quantities and money. None of those have produced anything in my cases. But, there will be a case someday where the seizing of the computer in a drug case was really an ulterior motive of the police in the search because the computer is what they really wanted. The drug allegations were just the easy way into the premises, and the computer is the real target of the search.

Those drafting search warrants should never assume that the mere presence of a computer gives license to seize and search it. Because of the ubiquity of computers, something more has to be articulated to justify seizing the computer other than its mere possible presence at a house where other evidence might be found. The odds of finding a computer in a house are great, but that tells us nothing. What are the odds of finding evidence of the crime under investigation on the computer? Can it realistically be articulated for the issuing magistrate? Is it just a hunch? Most of the time it will be merely a hunch that the computer will have evidence of a crime. If so, isn’t seizure of the computer without probable cause? But, there is also the “soft standard” of probable cause from Gates and the admonition from Ventresca that courts will strive harder to support a seizure based on a warrant than one without. With that, the government is more than half way to application of the good faith exception, notwithstanding the speculation in the warrant application. So, the attack must be that that part of the warrant application is totally lacking in probable cause under Leon.

As for the defense, do not assume that a court will sustain a search of a computer. Officers draft search warrants, not the issuing magistrate, so assume that they want to take as much as possible, whether there is a valid justification or not. Always probe at the suppression hearing what information there was to believe that, first, a computer would be found in the home, and, second, that it would be used in a crime or to hold evidence of a crime. Moreover, a computer can be completely benign in appearance, yet we all know that a computer and internet search history are windows into the mind of the owner, and that fact is what scares me about computer searches. I have seen both in the reported cases for this website a month ago and a year ago and some of my own that send chills up my spine as to what was found.

Take the most notorious example: The search of Scott Peterson’s computer that helped lead to his indictment and conviction for double murder because he searched for tide data where his wife’s body was found. A Google search will reveal other cases that haven’t even appeared in the reported cases.

My realistic fear is that, now computers and the Internet have come of age, the ability of law enforcement officers to search for and then seize and search computers will become far easier because courts do not always apply the same principled analysis for “nexus” to a crime to a computer search that they do to other things, as Kyllo teaches. This problem likely is also result driven: What was found was so significant (as in the case of Peterson’s computer), that it is consciously or unconsciously hard for a suppression judge to ignore. It is like a relevancy or 404(b) objection—part of the analysis is whether the prosecution needs the evidence to help it prove its case. And this begs a question: Why should it be admissible if the case is slim? If it is admitted, it is more likely to prejudice the accused and bring about a conviction. That should counsel against admission. But, that is not how trials work.

Incidental computer searches are just another example of Anthony Amsterdam’s famous admonition that “a sliding scale approach could only produce more slide than scale.” Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 393-94 (1974).

So, what is the purported “nexus” to the “things to be seized” under the Fourth Amendment? It has to be realistic and justifiable, or computer searches will simply devolve into 21st Century general warrants, something I have warned about before.

Pulling a gun on the defendant for parking in a red zone (fire lane) in California was unreasonable because there was no reason to do so, thereby making the arrest unlawful. [Somehow,] Neverthless, the impoundment of the car was still valid. United States v. Zacarias, 2008 U.S. Dist. LEXIS 31444 (C.D. Cal. April 15, 2008):

“[I]f the police draw their guns it greatly increases the seriousness of the stop.” Washington v. Lambert, 98 F.3d 1181, 1188 (9th Cir. 1996); see also United States v. Serna-Barreto, 842 F.2d 965, 967 (7th Cir. 1988) (“The significance of the pointed gun is that it makes the encounter far more frightening than if the officer’s gun remains holstered, or even drawn but pointed down at his side; and certainly where the danger of the encounter to the officer, though potentially serious, is not clear and present, the deliberate pointing of a gun at the suspect is problematic.”). Whether the drawing and pointing of a gun transforms a permissible stop into an arrest turns on an examination of the reasonableness of the police conduct in light of a number of factors:

[O]ur cases make clear that we have only allowed the use of especially intrusive means of effecting a stop in special circumstances, such as (1) where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight; (2) where the police have information that the suspect is currently armed; (3) where the stop closely follows a violent crime; and (4) where the police have information that a crime that may involve violence is about to occur. Clearly, some combination of these factors may also justify the use of aggressive police action without causing an investigatory stop to turn into an arrest.

Lambert, 98 F.3d at 1189.

Here, Groenow states that he pulled his gun for his safety, but fails to establish why it was reasonable to do so under the circumstances. There is no evidence that Zacarias was uncooperative or prone to flight. Nor is there any evidence of recent or impending violent criminal activity in the area. The only facts in Groenow’s favor are that it was “dark outside” and Zacarias “seemed to be trying to conceal something in one of his hands.” However, there is no evidence as to the time of day or night, or whether there were street or other artificial lights illuminating the scene. Additionally, Groenow does not state that he believed Zacarias was or might have been armed, only that he was trying to conceal something. In light of the scant evidence on the record supporting the existence of a legitimate personal safety concern, the Court finds that Groenow’s pointing of his gun at Zacarias was unreasonable under the circumstances and constituted an arrest. See United States v. Delgadillo-Velasquez, 856 F.2d 1292 (9th Cir. 1988) (finding that a stop was an arrest because “[t]he show of force and detention techniques used in this context are indistinguishable from police conduct in an arrest”).

The federal government intends to start DNA testing of arrestees, under a proposal to be published in the Federal Register shortly. See WashPo’s U.S. to Expand Collection Of Crime Suspects’ DNA / Policy Adds People Arrested but Not Convicted from April 17th:

The U.S. government will soon begin collecting DNA samples from all citizens arrested in connection with any federal crime and from many immigrants detained by federal authorities, adding genetic identifiers from more than 1 million individuals a year to the swiftly growing federal law enforcement DNA database.

The policy will substantially expand the current practice of routinely collecting DNA samples from only those convicted of federal crimes, and it will build on a growing policy among states to collect DNA from many people who are arrested. Thirteen states do so now and turn their data over to the federal government.

The initiative, to be published as a proposed rule in the Federal Register in coming days, reflects a congressional directive that DNA from arrestees be collected to help catch a range of domestic criminals. But it also requires, for the first time, the collection of DNA samples from people other than U.S. citizens and legal permanent residents who are detained by U.S. authorities.

Although fingerprints have long been collected for virtually every arrestee, privacy advocates say the new policy expands the DNA database, run by the FBI, beyond its initial aim of storing information on the perpetrators of violent crimes.

They also worry that people could be detained erroneously and swept into the database without cause, and that DNA samples from those who are never convicted of a crime, because of acquittal or a withdrawal of charges, might nonetheless be permanently retained by the FBI.

“Innocent people don’t belong in a so-called criminal database,” said Tania Simoncelli, science adviser for the American Civil Liberties Union. “We’re crossing a line.”

. . .

U.S. officials said that when the measure is fully implemented, roughly 1.2 million people a year could be added to the national database. About 140,000 of those would be people arrested for federal crimes. Many of the rest would be foreigners detained for being in the United States illegally.

From today’s WashPo: From DNA of Family, a Tool to Make Arrests / Privacy Advocates Say the Emerging Practice Turns Relatives Into Genetic Informants.

Consent to search a house immediately after a drug deal there permitted a search of a large handbag of a guest on the premises. Normally, consent does not extend to the persons of guests not shown to be linked to the crime under investigation, but here the search of the bag was reasonably related to officer safety because it was clearly large enough to hold a gun. Commonwealth v. Grahame, 2008 PA Super 73, 2008 Pa. Super. LEXIS 581 (April 18, 2008).*

Defense counsel was not ineffective for not moving to suppress evidence taken from a storage unit by police that turned out to have been stolen property because the issue was not properly developed by putting the search warrant into evidence at the post-conviction hearing. State v. Lloyd, 2008 Ohio 1874, 2008 Ohio App. LEXIS 1603 (2d Dist. April 18, 2008).*

Taking the defendant’s statements in a motion to suppress as true, that his mother-in-law was the CI and she had a deep hatred for the defendant, did not rise to the level of a Franks violation because even including that information would not nullify the probable cause otherwise show. United States v. Hernandez-Montez, 2008 U.S. Dist. LEXIS 31986 (D. Ore. April 15, 2008).*

Probable cause in this child pornography case was circumstantial and based on comments by a child molestation victim about defendant’s concern about his computer and the officer’s general knowledge that child molesters often have child porn. People v. Nicholls, 159 Cal. App. 4th 703, 71 Cal. Rptr. 3d 621 (3d Dist. 2008).*

Officer had probable cause to arrest from traffic violation, smell of alcohol, slurred speech, and failed HGN test. Sultan v. State, 289 Ga. App. 405, 657 S.E.2d 311 (2008).*

Traffic stop was based on unsafe tires, and that permitted further questions about the ownership of the vehicle. Woodard v. State, 289 Ga. App. 643, 658 S.E.2d 129 (2008).*

Random license check showed license to belong to a different color vehicle, so officer pulled car over to check on validity of the license plate. The officer fairly quickly learned that he was mistaken, but he had the defendant’s DL in hand, and it was expired. Questions about the occupant’s trip led to more questions, and the officer brought out his drug dog. Because the dog was already there, the delay was minimal. Andrews v. State, 289 Ga. App. 679, 658 S.E.2d 126 (2008).*

Georgia implied consent statute requires notice of right to refuse and consequences. Here, there was no probable cause for a blood test, just a triggering effect of an accident with death. State v. Morgan, 289 Ga. App. 706, 658 S.E.2d 237 (2008):

The implied consent statute affords a suspect the opportunity to refuse to submit to a state-administered test of his blood, urine or other bodily substances. The right of refusal is reinforced by the express language of OCGA § 40-5-67.1(d), which provides in relevant part that if a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given. An officer’s failure to so advise a suspect renders the results of the test inadmissible in evidence. This is true even though our state Constitution generally does not protect citizens from the compelled testing of certain bodily substances and the use at trial of the results of such compelled testing, and even though a suspect may otherwise consent to testing.

Government’s motion for production of palm prints of the defendant ordered. This is not a Fourth or Fifth Amendment issue. United States v. Brewer, 2008 U.S. Dist. LEXIS 13023 (N.D. Ind. February 19, 2008).*

Defendant succeeded in suppressing evidence for lack of consent in his federal criminal case, and then he sued the officers involved. The court found the search unjustified, but granted qualified immunity to the officers for believing that he consented. Nixon v. Derrick, 2008 U.S. Dist. LEXIS 13016 (D. S.C. February 19, 2008).*

Plaintiff’s complaint that the FBI planted surveillance equipment in his body and “teeths” was dismissed as fantasy. Lacy v. FBI, 2008 U.S. Dist. LEXIS 12648 (E.D. Wis. February 11, 2008).*

Plaintiff called a suicide hotline and said he would probably go to work at the fire department and take out others before shooting himself. Police were dispatched to his house and found him loading his car. They approached him with guns drawn and handcuffed him without incident. They searched his house and found a gun safe and every interior door locked and survivalist literature everywhere inside but the bathroom. They pressured him for keys and the combination and seized lots of guns. He was taken to a psychiatric hospital and left. He was not arrested, but his weapons were confiscated. Two years later, he sought return of the guns, and he did not get them back. He sued for the guns, but not over his own detention, and the officers were found to have acted reasonably. Mora v. City of Gaithersburg, 519 F.3d 216 (4th Cir. 2008). The first two paragraphs of the opinion give its tenor:

At Columbine High School in Littleton, in Blacksburg, Omaha, and Oklahoma City, America has had to learn how many victims the violence of just one or two outcasts can claim. These new predators are not terrorists in the ordinary sense; they are [*2] not linked to foreign powers or international organizations hostile to the United States. They are often isolated but heavily armed, filled to the brim with rage and anguish, and bent not just on murder, but on indiscriminate slaughter followed, frequently, by suicide. Violent derangement is nothing new, of course, but the atrocities seem to be growing at once more shocking and more commonplace.

This case presents the question of what emergency preventive action police may take, consistent with the Fourth and Fourteenth Amendments, when they learn of an individual who may well intend a similar slaughter, but who has neither committed nor attempted any crime. The legal issues are somewhat novel, and so we proceed with two values in mind: the need to prevent massacres whose human costs are beyond comprehension, and the need to preserve civil liberty for those who may be angry and depressed but not ultimately violent, and who cannot under our constitutional traditions be treated like criminals when they have committed no crime.

The content of the 911 call in this case showed its basis of knowledge. State v. Posey, 2008 Ohio App. LEXIS 766 (10th Dist. March 4, 2008):

P16 As set forth above, in this case, the 911 caller’s basis of knowledge lends to her credibility. “Typically, a personal observation by an informant is due greater reliability than a secondhand description.” Weisner, at 302, citing Gates at 233-234; State v. Livengood, Lake App. No. 2002-L-044, 2003 Ohio 1208, at P11 (“A citizen-informant who is the victim of or witness to a crime is presumed reliable.”). (Citation omitted.) We also note that courts have afforded additional reliability to tips when the caller is requesting immediate police assistance “within minutes of being threatened” and able to describe the suspect, as was the case here. See U.S. v. Terry-Crespo (C.A.9, 2004), 356 F.3d 1170, 1177, discussing U.S. v. Valentine (C.A.3, 2000), 232 F.3d 350, 354 (greater reliability may be ascribed to a tip, even an anonymous one, where tipster “was reporting what he had observed moments ago”); see, also, U.S. v. Brown (C.A.10, 2007), 496 F.3d 1070.

Game warden had reasonable suspicion for stop of defendant’s vehicle for night hunting when he heard a gunshot and he followed fresh tracks in direction of the gunshot and came upon one vehicle. Cox v. State, 975 So. 2d 1163 (1 DCA 2008).*

Speeding stop led to officer smelling burnt marijuana, and state Supreme Court already has determined that is probable cause. City of Strongsville v. Carr, 2008 Ohio 907, 2008 Ohio App. LEXIS 789 (8th Dist. March 6, 2008).*

Applying Ceccolini, the Florida Fourth District Court of Appeals refuses to suppress the testimony of a witness found as a result of an arguably illegal search. Wells v. State, 975 So. 2d 1235 (4th DCA 2008).

Furtive movement to the glove compartment, although subject to innocent explanation, can be reasonable suspicion. United States v. Thomas, 2008 U.S. Dist. LEXIS 18856 (S.D. Ohio February 26, 2008):

Defendant argues that his gestures toward the glove compartment could have been innocent, such as to retrieve the vehicle’s registration information. While this is true, “[a] determination that reasonable suspicion exists … need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2002). The issue is not whether each factor in isolation is susceptible of an innocent explanation, but rather whether taken as a whole the factors are sufficient to form a particularized and objective basis for concluding that reasonable suspicion existed. Id. at 277-78. As the Court continues to explain further, the totality of the circumstances, including the Defendant’s behavior inside the vehicle, established a reasonable suspicion that he was armed and dangerous.

Accordingly, in this case, the Defendant’s furtive movements within the interior of the vehicle properly factored into Officer Winter’s suspicion that the Defendant was armed and dangerous.

Defendant lived with his aunt, and she was cleaning his room and found marijuana which she put in the nightstand. She consented to a police entry, and it was with apparent authority. State v. Putnam, 2008 Wisc. App. LEXIS 190 (March 11, 2008).*

An excessive force case that could have been settled for $50,000 and an apology was contested by the City, which finally lost. The total tab now: about $500,000, including interest and attorney’s fees, according to the San Jose Mercury News.

Plaintiff was charged, tried, and acquitted in the accidental death of her child. After the acquittal, she sued the police. “The existence of probable cause to support Plaintiff’s arrest necessarily precludes her entire action”, including collateral estoppel from the finding of probable cause in the underlying criminal action. Garner v. Grant, 2008 U.S. Dist. LEXIS 9649 (E.D. Mich. February 8, 2008).* (Comment: As defense lawyers, we see clients who want to sue the police after they win their criminal case (and a lot who want to sue as soon as they are charged). They should be thankful they got out of the criminal case and get on with life. This case was different because of the nature of the underlying case, but that only explains the plaintiffs’ desire to sue, not that it will ever be successful.)

On a motion to return property under Rule 41(g), the government is ordered to file, in camera, if necessary, a response as to why it needs the evidence. United States v. 515 Concord Ave., 2008 U.S. Dist. LEXIS 9658 (W.D. N.C. January 29, 2008).*

Officer had probable cause to stop and detain the defendant who was suspected of having broken into a car which was reported by a security guard at an apartment complex. When the defendant was seen, there was probable cause for a search, and the search of his car was justified by the automobile exception. Commonwealth v. Bostock, 450 Mass. 616, 880 N.E.2d 759 (2008).*

Plaintiffs showed sufficient evidence to survive summary judgment that the officer had no reasonable suspicion based on an anonymous, completely uncorroborated tip. Likewise, there was no basis for an entry into their house, either. Holloway v. Vargas, 535 F. Supp. 2d 1219 (D. Kan. 2008).*

Conviction for battery on a police officer did not preclude a claim that the officer used excessive force on the plaintiff. Wells v. Brigman, 2008 U.S. Dist. LEXIS 13939 (E.D. Ark. February 25, 2008).*

Federal court declines to reach merits of a search claim that would be pending within a state criminal case. Dillard v. Sanchez, 2008 U.S. Dist. LEXIS 13687 (D. Ore. February 22, 2008).*

Defendant’s consent was found to have been given in an atmosphere of relative calm, not badgering him as he claimed. The police were called to his property by a utility worker who found trip wires at the entrance to his property, and the worker had encountered a trip wire that set off an explosion once before. United States v. Zaleski, 2008 U.S. Dist. LEXIS 13709 (D. Conn. February 22, 2008).*

A motorcycle lawfully parked was still subject to impoundment. Also, failure to scrupulously follow the impoundment policy does not make the impoundment or search thereafter unconstitutional. United States v. Sanchez, 535 F. Supp. 2d 216 (D. Mass. 2008).*

Reasonable suspicion can be based on public intoxication. A patdown became justified. United States v. Salter, 255 Fed. Appx. 355 (11th Cir. 2007)* (unpublished).

Helicopter flyover saw several marijuana plants in open fields around defendant’s property, and that supported a search warrant. United States v. Nichols, 248 Fed. Appx. 105 (11th Cir. 2007)* (unpublished).

Officer’s testimony credited that he had probable cause to believe that defendant’s window tinting was too dark under state law. The officer asked for consent and got it. United States v. Russo, 2007 U.S. Dist. LEXIS 67678 (S.D. Fla. September 13, 2007):

Here, the defendant argues that Trooper Volk’s question, “You don’t have a problem if I search, do you?” was somehow more coercive than a straightforward request for permission to search. The undersigned does not believe that the form of the question was coercive in any way. Moreover, it was clear from the DVD that the trooper was polite and the defendant immediately agreed to the search and signed the consent to form.