Officers’ smell of marijuana justified search, and the fact the officers said that they were searching for officer safety was not material. State v. Jennings, 968 So. 2d 694 (Fla. App. 4DCA 2007):

The officers in this case had probable cause to search the occupants of the vehicle once they smelled the marijuana. That they may have articulated a subjective intent to search for officer safety did not change the fact that the smell of marijuana smoke provided an objectively reasonable basis for the search. See United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (Whren provides broad leeway to officers to conduct searches regardless of their subjective intent so long as there is objective legal justification for their actions).

Defendant’s argument that the police conducted an illegal protective sweep prior to his search incident did not have to be reached because the police had independent probable cause for a search warrant that was later issued. Therefore, there was an independent source permitting the search. United States v. Free, 254 Fed. Appx. 765 (11th Cir. 2007)* (unpublished).

Arrest for violation of an order of protection permitted a search incident, despite a dearth of findings from the district court. Sam v. State, 2008 WY 25, 177 P.3d 1173 (2008) (3-2):

[*P13] Because it is dispositive of this appeal, we will limit our consideration only to that exception which sanctions a search of the automobile for evidence which might relate to the crime for which Sam was arrested. Sam was arrested for multiple reasons, but the record is clear that the initial stop and the initial arrest were for violations of a protection order. Our careful review of the record convinces us that Beck’s search of Sam’s car was reasonable under all of the circumstances detailed above. That the cursory search of the car’s interior uncovered evidence of the possession with intent to deliver proscribed narcotics, rather than evidence of the violation of the protection order, does not negate the admissibility of that evidence under our Vasquez rule. We do not think it is a requirement that a police officer be able to recite a specific list of what sorts of evidence might be relevant in such a circumstance, but some items identified were cell phones (which Sam used to make harassing calls), or writings of any sort that indicated what Sam’s intentions were with respect to the individuals protected by the protection order. Other examples of evidence that might be pertinent would include instrumentalities that might be used to harass, harm or threaten protected individuals. See deShazer v. State, 2003 WY 98, PP5-11, 74 P.3d 1240, 1243-44 (Wyo. 2003).

The dissent found the purported justifications for a search incident speculative:

[*P21] I do not disagree with the proposition that factors such as officer safety and the presence of evidence may justify the search of an arrested person’s vehicle. There simply was no showing in this case, at the suppression hearing, that those or similar factors existed. Article 1, § 4 of the Wyoming Constitution forbids the search of a vehicle incident to the arrest of its driver unless such search is reasonable under all of the circumstances. The car search in this case, being purely a search incident to arrest, without justification under all the circumstances, was unlawful. The motion to suppress should have been granted, and the appellant should have been allowed to withdraw his guilty plea.

Making radio call to check a driver’s license is a stop. The fact defendant was on probation and would had to endure the stop was not the point because it was a fruit of the poisonous tree and not independent of the stop. State v. Tyler, 218 Ore. App. 105, 178 P.3d 282 (2008):

On appeal, the state concedes that, when the officer asked defendant for his identification and contacted the dispatch operator, a stop occurred, and that, because the officer did not have reasonable suspicion that defendant had engaged in (or was about to engage in) unlawful activity, the stop violated defendant’s right to be free from unreasonable search and seizure under Article I, section 9, of the Oregon Constitution. We agree and accept that concession. See State v. Hall, 339 Ore. 7, 19, 115 P.3d 908 (2005) (stop occurs when officer radios dispatch operator). The state argues, however, that any causal connection between that illegality and defendant’s consent is too tenuous to require suppression because defendant consented due to his belief that he was required to do so as a condition of his probation, and not because of any police conduct.

Defendant consented to a patdown, and plain feel supported seizure of a baggie of dope. Dunn v. State, 289 Ga. App. 585, 657 S.E.2d 649 (2008).*

Traffic stop based on two persons in the passenger seat was at least with reasonable suspicion because the driver’s view might have been obstructed by one too many persons in the front seat. State v. Bird, 2008 Ohio 540, 2008 Ohio App. LEXIS 461 (4th Dist. February 4, 2008).*

Defendant called the police because of his girlfriend’s death. They arrived and called paramedics. When it was determined that she was dead, they called the ME. After that a search warrant was sought. There were five entries all together, but the defendant only challenged the last two: the ME bound by statute to attend deaths and the one under the search warrant. As to the ME’s entry, the defendant’s consent to the first three entries by the call to the police required the ME to attend as well, and it was a continuation of the prior entries and with probable cause and exigent circumstances (“the evidence was in danger of degrading”). State v. Ferrara, 218 Ore. App. 57, 178 P.3d 250 (2008):

In this case, it is also obvious that there was probable cause to enter the trailer: defendant had reported a shooting, there was a body in the trailer, the cause of death was unknown, the victim’s scalp contained a wound of uncertain origin, and defendant gave inconsistent explanations about what happened. Here, a shooting had occurred, it was more likely than not that a crime had been committed, and evidence of that crime might still be on the premises.

Unlike in Brothers, however, there were exigent circumstances present that permitted the deputy medical examiner to dispense with the necessity to obtain a warrant. Despite the fact that the scene was secured, the evidence was in danger of degrading, and the medical examiner had a duty to take action in order to “preserve evidence relating to the cause and manner of death,” including taking the temperature of the body. ORS 146.103(3). Furthermore, in this case, the deputy medical examiner testified that his 3:00 a.m. entry was solely for the purpose of investigating the cause of death and that the police officers who accompanied him were there to assist him in that investigation. Unlike in Brothers, the deputy medical examiner’s efforts here were limited to examining the body and investigating the cause of death, and did not involve searching the residence. In sum, we conclude that the 3:00 a.m. entry was lawful because probable cause and exigent circumstances existed to create an exception to the requirement for a search warrant.

Burden was not shifted to the defendant to prove that the search was illegal; it was merely required to show what his basis for claiming the search was. State v. Stanley, 2007 Ohio 2786, 2007 Ohio App. LEXIS 2538 (10th Dist. June 7, 2007):

[*P24] “[T]he state has the burden of going forward with evidence to show probable cause once the defendant has demonstrated a warrantless search or seizure and has raised lack of probable cause as a ground for attacking the legality of the search or seizure.” Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218, 524 N.E.2d 889. However, “the prosecutor cannot be expected to anticipate the specific legal and factual grounds upon which the defendant challenges the legality of a warrantless search.” Id. at 218. The court in Wallace found that Crim.R. 47 “requires that the prosecution be given notice of the specific legal and factual grounds upon which the validity of the search and seizure is challenged.” Id. at 219. The court further noted that the rule is not solely for the benefit of the prosecution, but also serves to permit the trial court to prepare for a hearing. “[T]he court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits.” Id. Therefore, the court placed the burden upon the defendant in a criminal case to “make clear the grounds upon which he [or she] challenges the submission of evidence pursuant to a warrantless search.” Id. Consequently, the “[f]ailure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal.” Id.

[*P25] In his motion to suppress, defendant did not challenge the accuracy or reliability of the drug-detection dog that sniffed the vehicle. Accordingly, we find that defendant’s arguments regarding the accuracy and reliability of the dog are waived for purposes of appeal. See State v. Bennett, Cuyahoga App. No. 86962, 2006 Ohio 4274 (finding that the defendant, who did not challenge the reliability of the dog or whether it alerted, waived these arguments for purposes of appeal).

[*P26] For the above reasons, we overrule defendant’s first assignment of error.

Defendant being a passenger in a vehicle owned and driven by a relative does not grant the defendant standing. Benitez v. State, 2007 Ark. App. LEXIS 414 (May 30, 2007).*

Officer observed defendant put something in his pants when pulled over. A patdown for weapons produced nothing, so the officer went after what she suspected would be drugs. Motion to suppress granted. People v. Dobson, 2007 NY Slip Op 4846, 2007 N.Y. App. Div. LEXIS 6971 (2d Dept. June 5, 2007).*

Defendant was a passenger in a taxicab stopped for a traffic offense, and the officer developed reasonable suspicion as to the passenger, which justified the detention. State v. Fry, 2007 Ohio 2734, 2007 Ohio App. LEXIS 2532 (9th Dist. June 6, 2007).*

Defendants’ stop lacked any basis in probable cause or reasonable suspicion, so the motion to suppress was properly granted. Even though the car was going slower than the other cars on the road, it was not “impeding” traffic. State v. Hannah, 2007 Tenn. Crim. App. LEXIS 441 (June 6, 2007):

Viewing the totality of the circumstances, Officer Shaw did not have a reasonable suspicion, supported by specific and articulable facts, to believe the defendants had committed a crime or were about to commit a crime when he initiated the traffic stop. Prior to stopping the defendants’ vehicle, the officer did not observe any traffic violations, such as running a stop sign or red light, or weaving across lanes into oncoming traffic. Neither did he witness any equipment failures, such as a non-working headlight or taillight. Nor was there any evidence that the vehicle lacked tags or had expired tags. Officer Shaw did not testify that it was his belief that the individuals in the car were perpetrating a crime or had just committed a crime.

Hot pursuit for fleeing from an obstructing an officer misdemeanor does not justify a warrantless entry in hot pursuit. State v. Sanders, 2007 WI App 174, 304 Wis. 2d 159, 737 N.W.2d 44 (2007):

P22 On appeal, the state relied upon the hot pursuit doctrine to justify the warrantless entry. Id., P12. We held that the entry violated the Fourth Amendment. See id., P17. We explained that in United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), the United States Supreme Court held that a suspect could not defeat an arrest that has been set in motion in a public place by escaping to a private place. We then interpreted Welsh as limiting Santana to the hot pursuit of fleeing felons. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, P17, 647 N.W.2d 421. Because the police pursued Mikkelson for obstructing an officer, a misdemeanor, we determined they were not permitted to enter the residence without a warrant. Id.

P23 We have a strikingly similar fact pattern in this case. As in Mikkelson, we have an uncooperative defendant who engaged in what officers believed was suspicious behavior. We have a defendant who, like Mikkelson, disregarded a police order to stop and proceeded into a residence. Finally, as in Mikkelson, the officers pursued Sanders for obstructing an officer, a misdemeanor offense. Applying Mikkelson and its construction of the post-Welsh exigent circumstances factors, we hold that the officers illegally entered Sanders’ residence.

U.S. spy satellites are soon to start surveilling U.S., according to a story yesterday in the Washington Post: Administration Set to Use New Spy Program in U.S. / Congressional Critics Want More Assurances of Legality.

The Bush administration said yesterday that it plans to start using the nation’s most advanced spy technology for domestic purposes soon, rebuffing challenges by House Democrats over the idea’s legal authority.

Homeland Security Secretary Michael Chertoff said his department will activate his department’s new domestic satellite surveillance office in stages, starting as soon as possible with traditional scientific and homeland security activities — such as tracking hurricane damage, monitoring climate change and creating terrain maps.

Sophisticated overhead sensor data will be used for law enforcement once privacy and civil rights concerns are resolved, he said. The department has previously said the program will not intercept communications.

Read the whole article, if you can, then rent 1998’s “Enemy of the State” and watch it. As Dean’s [Will Smith] character’s wife put it:

Carla Dean: Oh, well there goes the Fourth Amendment… what’s left of it.

And that movie came out a decade ago.

Defendants as overnight guests had standing to challenge the search of the apartment they were staying in, including all rooms within. They did not, however, have standing as to a hidden compartment with cash and drugs since they did not assert any interest in what was found there. United States v. Ontiveros, 2008 U.S. Dist. LEXIS 29610 (S.D. N.Y. April 9, 2008):

However, neither defendant has claimed ownership of the items found in the trap, nor made any showing that they knew of the existence of the trap or its contents. Consequently, defendants have not demonstrated a legitimate expectation of privacy in the items found in the hallway trap. See Cody, 434 F. Supp. 2d at 167 (holding that refusal to claim ownership of an item or place results in a lack of standing to object to a search of that item or place); see also Torres, 949 F.2d at 608 (“Neither possession nor ownership of property established a legitimate expectation of privacy unless the party vigilantly protects the right to exclude others.”); cf. Gudema, 163 F.3d at 722 (collecting cases in which courts held that even an ownership interest is not enough to demonstrate a legitimate expectation of privacy). Because defendants had no legitimate expectation of privacy in the trap or its contents, they cannot suppress the use of such evidence at trial. See Padilla, 508 U.S. at 81; Paynor, 447 U.S. at 731. Accordingly, defendants’ motions to suppress the cocaine and cash found inside the trap are denied.

State court’s ruling on defendant’s suppression motion was not contrary to clearly established law under Supreme Court cases. [Stone v. Powell not even cited in this 2254 habeas case.] Mullins v. Crosby, 2008 U.S. Dist. LEXIS 29595 (M.D. Fla. April 10, 2008).*

In a spinoff from the BALCO case, United States v. Comprehensive Drug Testing, 473 F.3d 915, 936 (9th Cir. 2006), the N.D. Cal. holds that a professional athlete had no reasonable expectation of privacy in urine samples tested by the government’s U.S. Anti-Doping Agency (“USADA”) after she was suspended for doping. The USADA retested the urine, and it led to a perjury indictment. United States v. Thomas, 2008 U.S. Dist. LEXIS 29406 (N.D. Cal. March 3, 2008):

As a threshold matter, defendant lacks so-called Fourth Amendment standing to contest the search of the urine samples. When defendant voluntarily submitted these samples to the USADA, the USADA’s protocols for drug testing, effective during the years 2001 and 2002, clearly stated that “[a]ll samples collected by USADA shall be the property of USADA.” See Finigan Decl. ex. B, P 10 & ex. C, P 10. Defendant argues that the urine samples provided in 2001 and 2002 were not actually the property of the USADA in 2006, when the testing occurred, because by then the protocol for drug testing, effective in August 2004, stated that “[a]ll samples collected by USADA shall be the property of USADA, but shall only be used for purposes outlined in this Protocol.” See Balogh Decl. ex. K, P 11. The Court does not agree with defendant that the August 2004 protocol governs urine samples submitted by defendant in 2001 and 2002. Under the protocols governing at that time, defendant’s urine samples became the property of the USADA once she handed them over. Subsequent amendments to the protocol did not change the ownership of the samples, such as by providing that the previously- submitted samples would revert to being the property of the athlete; indeed, subsequent amendments continued to state that all samples were the property of USADA. See Balogh Decl. ex. K, P 11. Because the USADA, not defendant, owned the urine samples, defendant has no standing to contest the prosecution’s search of the samples. See Pulliam, 405 F.3d at 785-86.

Alternatively, the Court finds that defendant had no objectively reasonable expectation of privacy in the urine samples that were tested by the prosecution. It is true, as a general rule, that athletes “possess strong privacy interests in both their drug test results and the actual specimens.” United States v. Comprehensive Drug Testing, 473 F.3d 915, 936 (9th Cir. 2006); see also United States v. Kincade, 379 F.3d 813, 835-37 (9th Cir. 2004). For purposes of the Fourth Amendment, however, the Court must examine the particular circumstances involved in the prosecution’s search to determine whether a defendant had an objectively reasonable expectation of privacy. See Smith, 442 U.S. at 740. Here, at the time defendant submitted the samples to USADA, she knew or should have known that the samples would become the property of USADA. She also knew that positive test results would be publicly disclosed following a proper hearing. See, e.g., Finigan Decl. ex. B, P 11. In addition, defendant signed forms stating that the information she provided during her urine sample submission was “not provided to USADA pursuant to a doctor/patient relationship” and was “not to be considered a confidential medical record.” See Finigan Decl. ex. A. None of these factors were present in the case of Comprehensive Drug Testing, 1 and they demonstrate that defendant lacked an objectively reasonable expectation of privacy in her urine samples under the circumstances of the USADA process and protocols. Smith, 442 U.S. at 740. Accordingly, the Court DENIES defendant’s motion to suppress evidence.

The Nassau County Strip Search Cases, previously on appeal at In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006), had previously been certified as a class action for liability. Here it was certified for damages as well as the easiest method of resolving the case. In re Nassau County Strip Search Cases, 2008 U.S. Dist. LEXIS 29083 (E.D. N.Y. March 27, 2008).*

Today on the blog Grits for Breakfast: Search warrants for polygamist compound may be invalid.

The blog links to the Salt Lake Tribune: FLDS retorts: Raid violated the sect’s rights. The pdf of the petition that led to the raid is here. A hearing was set for today. The “warrant” authorizes search of what it describes as an entire “city” of hundreds of people.

The men say it is “impossible” that the sealed affidavit that triggered the investigation at the ranch listed sufficient evidence to search “each and every residence, structure, school, vehicle, place of business, other facility.”

The filing describes the ranch as an “unincorporated city or neighborhood of 300 to 400 residents” that includes single and multiple family homes, a doctor’s office, a cheese manufacturing plant, a cement plant and other buildings spread over 1,691 acres.

Sounds like the quintessential general warrant for a wholesale search. One can hypothethically conjure up a potential scenario to authorize a search that broad. Whether it can be justified in court is another matter. And, as posed by Grits for Breakfast, what about the kids taken? You can’t suppress witnesses (Ceccolini), but what about their return to the compound?

It will be interesting to see how this plays out.

(A hat tip to Scott Henson of Grits for Breakfast.)

Probable cause was shown for a search of defendant’s office on Robins Air Force base for evidence of a bribery scheme. Defendant’s reading of the affidavit was hypertechnical and contrary to Ventresca, and the affidavit as a whole showed probable cause. United States v. Deason, 2008 U.S. Dist. LEXIS 28410 (M.D. Ga. April 8, 2008)*:

Therefore, where the “circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.” Id. In cases where the affidavit presents only doubtful or marginal probable cause, “the resolution … should be largely determined by the preference to be accorded to warrants.” Id. Thus, the magistrate judge’s determination of probable cause is given great deference. See id. A court’s determination about whether probable cause supported a warrant involves simply “a practical, commonsense decision whether, given all the circumstances set forth in the affidavit … there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

Summary judgment denied over forced physical examinations of plaintiffs’ children because of a fact dispute over whether they actually or impliedly consented. Plaintiffs contended they were not informed of the alleged voluntary nature of the examinations in a language they could understand. Doe v. Regents of the Univ. of Cal., 2008 U.S. Dist. LEXIS 28510 (E.D. Cal. April 8, 2008).*

The government sought tracking information on a suspected drug trafficker’s cellphone. It had to be supported by probable cause under Rule 41. In the Matter of the Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 534 F. Supp. 2d 585 (W.D. Pa. February 19, 2008) (collecting cases):

For the reasons discussed below, this Court believes that citizens continue to hold a reasonable expectation of privacy in the information the Government seeks regarding their physical movements/locations–even now that such information is routinely produced by their cell phones–and that, therefore, the Government’s investigatory search of such information continues to be protected by the Fourth Amendment’s warrant requirement; i.e., the Government must meet a probable cause background standard.

. . .

Any contention that the Government might obtain cell tower site location information (“CSLI”) solely under the auspices of the PRS appears to have been put to bed. In a series of published Orders and Opinions over the past two years, a significant majority of Courts have also rejected the Government’s contention that real-time, or prospective, movement/location information may be obtained under a hybrid theory which purports to combine the authorities of the PRS and the SCA by seizing upon the term “solely” in a provision of the CALEA. In so holding, many of these Courts have repeatedly opined that real-time cell-phone-derived movement/location information is “tracking” information within § 3117. Few Courts have, however, addressed in published opinion whether the Government may nonetheless covertly obtain a cell phone subscriber’s (or possessor’s) past, or historic, movement/location information by the authority of the SCA. Some have suggested or credited (all but twice in dicta, and with little substantive discussion), that it may; a few have concluded or suggested that it may not.

This Court concurs with those majority opinions holding that real-time CSLI constitutes tracking information and further concludes, after extensive research and careful consideration, that a distinction between real-time (“prospective”) and stored (“historic”) cell-phone-derived movement/location information would be at odds with (a) the plain language and/or natural meaning of the language of § 3117 and §2703, (b) the rule of statutory construction requiring that effect be given to each and every provision, and (c) unambiguous Congressional intent. It would also render the related provisions of the electronic communications legislation constitutionally suspect, at best.

See also footnote 40:

40. See generally Where Are We?, 29 Hastings Comm. & Ent. L.J. at 422-24 (summarizing that 11 of the 15 decisions published on cell phone location tracking within prior two years concluded probable cause is required, while four authorized limited prospective information).

Among the decisions denying the Government’s requests for CSLI under a hybrid theory are: In re the Applications of the United States for Orders Authorizing the Disclosure of Cell Cite Information, 2005 WL 3658531 (D.D.C. Oct. 26, 2005) (hereafter “Robinson Joint Magistrates’ DDC 2005 Order“); Facciola DDC 2006 Opinion, 407 F.Supp.2d 134; Lee ND Ind. 2006 Opinion, 2006 WL 1876847 (affirming Magistrate Judge’s denial of application); Application of the United States for an Order Authorizing the Installation and Use of a Pen Register and a Caller Identification System on Telephone Numbers (Sealed) and Production of Real Time Cell Site Information, 402 F.Supp.2d 597 (D.Md. 2005); In re Application of the United States for Orders Authorizing Installation and Use of Pen Registers and Call Identification Devices, 416 F.Supp.2d 390 (D.Md. 2006); In re Application for an Order Authorizing the Installation and Use of a Pen Register and Directing the Disclosure of Telecomm. Records, 439 F.Supp.2d 456 (D.Md. 2006); Orenstein EDNY Aug. 2005 Order, 384 F.Supp.2d 562, on reconsideration, Orenstein EDNY Oct. 2005 Opinion, 396 F.Supp.2d 294; In re Application of the United States for an Order for Prospective Cell Site Location Information, 2006 WL 468300 (S.D.N.Y. Feb. 28, 2006); In re United States Application for an Order Authorizing Installation and Use of a Pen Register, 415 F.Supp.2d 211, 2006 WL 354289 (W.D.N.Y. Feb. 15, 2006) (hereafter “Feldman WDNY 2006 Opinion“); McGiverin PR 2007 Opinion, 497 F. Supp.2d 301; Smith SD Tex 2005 Opinion, 396 F.Supp.2d 747; Smith SD Tex. 2006 Opinion, 441 F.Supp.2d 816, 827-37; Adelman ED Wis. 2006 Opinion, 2006 WL 2871743, *3-4 (affirming Magistrate Judge’s denial of application); In re Application of the United States for an Order Authorizing the Disclosure of Prospective Cell Site Information, 412 F.Supp.2d 947, 950 (E.D. Wis. 2006) (hereafter “Callahan ED Wis. 2006 Opinion”).

But see In re Application for an Order Authorizing the Extension and Use of a Pen Register Device, 2007 WL 397129 (E.D. Cal. Feb. 1, 2007) (granting request for limited prospective CSLI); In re Application of United States for an Order, 411 F.Supp.2d 678 (W.D. La. 2006); In re Application of the United States of America for an Order for Disclosure of Telecommunications Records and Authorizing the Use of a Pen Register and Trap and Trace, 405 F.Supp.2d 435 (S.D.N.Y. 2005) (hereafter “Gorenstein SDNY 2005 Opinion“); In re Application of United States for an Order for Prospective Cell Location Information, 460 F.Supp.2d 448 (S.D.N.Y. 2006); In re Application of the United States, 433 F.Supp.2d 804 (S.D. Tex. 2006) (hereafter “Rosenthal SD Tex. 2006 Opinion“); In re Application of the United States for an Order (1) Authorizing Installation of a Pen Register and Trap and Trace Device and (2) Authorizing Release of Subscriber and Other Information, 2007 WL 3036849 (SD Tex. Oct. 17, 2007) (hereafter “Rosenthal SD Tex. 2007 Opinion“) (reversing Magistrate Judge Smith’s denial of application for historic and prospective CSLI).

Defendant had an expectation of privacy in a closed bag hidden in the closet of a house he was visiting. The owner had apparent authority over common areas to consent to a search, but not the bag. By closing the bag, the defendant exhibited a reasonable expectation of privacy from government intrusion. United States v. Childs, 2008 U.S. Dist. LEXIS 27525 (D. Mass. April 4, 2008):

In this case, the pertinent inquiry is whether Tubbs had mutual use of and joint access to the bag. This case is similar to United States v. Botchway, where Judge Saylor found that a third party lacked actual authority to consent to a search of defendant’s locked, soft-sided briefcase that was in the trunk of a car the third party was riding in. The third party in Botchway lacked authority because “the briefcase and its contents belonged to [the defendant],” there was “no evidence that [the defendant] shared access or control over the briefcase with any other person,” and the defendant “did not abandon the briefcase, entrust it to another, or otherwise relinquish authority over it in any respect.” Id. at 170.

Analogously, in this case, the bag belonged to Childs, there was no evidence he shared control of the bag with Tubbs, and Childs did not abandon the briefcase, entrust it to another, or otherwise relinquish authority over it. These facts satisfy me that Tubbs lacked actual authority to consent to the search. United States v. Waller, 426 F.3d at 845-46. Additionally, Tubbs did not know what Childs kept in the bag, ask him what he kept in the bag, or take any other affirmative steps to determine the contents of the bag. When pressed by my questioning, Tubbs suggested that she thought she had authority to look in the bag if she wanted to. I find this post-hoc assertion of authority to be unpersuasive in light of her earlier testimony. When I originally asked her the same question, she testified that she thought she had the right to look in the bag because “had [she] looked in it, we probably wouldn’t be here today.”

This case also bears resemblances to a situation Justice O’Connor described in United States v. Karo, 468 U.S. 705, 726, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984) (O’Connor, J., concurring). She observed that when a “guest in a private home has a private container to which the homeowner has no right of access[, t]he homeowner who permits entry into his home of such a container effectively surrenders a segment of the privacy of his home to the privacy of the owner of the container.” Id. In these situations, “the homeowner … lacks the power to give effective consent to the search of the closed container.” Id. While her testimony was not entirely consistent regarding Childs and the bag, Tubbs did consistently state that she gave Childs permission to store his bag in her daughter’s closet. This too suggests that Tubbs did not have joint access to or mutual use of the bag. Because Tubbs did not have mutual use of or joint access to the bag for most purposes, she lacked actual authority to consent to the search.

Defendant had a reasonable expectation of privacy in his desk at work, and the state did not show that the work area was shared with others to show that there was no expectation of privacy. Harper v. State, 283 Ga. 102, 657 S.E.2d 213 (2008):

The trial court made an alternative finding that no warrant was required for the search of Harper’s desk at work, because it was unlocked and was in a workspace shared by numerous coworkers. The trial court cited Mancusi v. DeForte, 392 U. S. 364 (88 SC 2120, 20 LE2d 1154) (1968), but it failed to recognize that that case controls this issue favorably to Harper. In DeForte, officials conducted a warrantless search of an office owned by a union. The Court held that the defendant had standing to insist that evidence seized during the search be suppressed despite the fact that the union held title to the office and despite the fact that he shared the office with several other union officials. Contrary to the trial court’s reasoning here, the Supreme Court stated as follows:

It seems to us that the situation was not fundamentally changed because DeForte shared an office with other union officers. DeForte still could reasonably have expected that only those persons and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups.

Mancusi v. DeForte, supra at 369 (II). Because there was no evidence that any of Harper’s coworkers or supervisors gave valid consent to the search of his desk, we conclude, in light of DeForte, that a warrant was required for its search. The trial court’s conclusion regarding Harper’s desk is also contrary to O’Connor v. Ortega, 480 U. S. 709 (107 SC 1492, 94 LE2d 714) (1987). In Ortega, a plurality of the Court suggested that some office desks, filing cabinets, and similar items may be so open to the public or be subject to such general use that no one person has any reasonable expectation of privacy in them. However, the Court concluded that the desk and file cabinet in question were used exclusively by the defendant, that he regularly kept personal items in them, and that the defendant’s employer did not have any regulation or policy discouraging employees from storing personal items in their desks and file cabinets. Furthermore, a review of the concurring and dissenting opinions in Ortega reveals that the plurality opinion represented the most restrictive view of the defendant’s privacy interest and that a majority of the Court believed that the defendant plainly had a reasonable expectation of privacy, not only in his desk and file cabinet, but also in the whole of his office. See O’Connor v. Ortega, supra at 729-732 (732-748 (II) (Blackmun, J., dissenting). In light of the foregoing and our review of the evidence in the record, we conclude that the search of Harper’s desk at work invaded a reasonable expectation of privacy and, therefore, that the warrant requirement applied.

After a lawful execution of a search warrant for child porn, the defendant’s computer may be examined later without a separate warrant. State v. Grenning, 142 Wn. App. 518, 174 P.3d 706 (2008):

This is an issue of first impression in Washington. There are no Washington cases dealing directly with the constitutionality of an ongoing forensic examination of information stored on copies of a hard drive that extends beyond the 10-day deadline specified in CrR 2.3(c). However, it is generally understood that a lawful seizure of apparent evidence of a crime using a valid search warrant includes a right to test or examine the seized materials to ascertain their evidentiary value. 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 4.10(e), at 771 (4th ed. 2004).

Paramedic who got defendant to pull over and park the car was not a “state actor,” and the stop was not governed by the Fourth Amendment. Commonwealth v. Demor, 2008 PA Super 11, 942 A.2d 898 (2008). (Comment: There was probable cause anyway, so what’s the point?)

Listing a Fourth Amendment issue in a brief but not briefing it is a waiver of the issue. State v. Rivers, 2008 Tenn. Crim. App. LEXIS 7 n. 1 (January 7, 2008).*

The ubiquity of school resources officers led the Tennessee Supreme Court to remand a case for a determination of just what the officer’s role was at this school: school official or cop? [In school search cases in general, this case might prove to be significant because it asks the right questions.] R.D.S. v. State, 245 S.W.3d 356 (Tenn. 2008):

Increasingly, SROs and other law enforcement officers are becoming more involved in searches on school premises. The majority of jurisdictions which have faced the issue of what standard to apply to SROs or law enforcement officers assigned to schools have applied the reasonable suspicion standard. See, e.g., People v. Dilworth, 169 Ill. 2d 195, 661 N.E.2d 310, 317, 214 Ill. Dec. 456 (Ill. 1996) (holding that reasonable suspicion applies to liaison officer searching on own initiative); Commonwealth v. J.B., 719 A.2d 1058, 1062 (Pa. Super. Ct. 1998) (holding that searches of public school students conducted by school police officers are subject to reasonable suspicion standard); Russell v. State, 74 S.W.3d 887, 891 (Tex. App. 2002) (applying reasonableness standard to officer assigned to school); In re Angelia D.B., 211 Wis. 2d 140, 564 N.W.2d 682, 690 (Wis. 1997) (holding that the reasonable grounds standard applied to search conducted by officer at request of and in conjunction with school officials). But see A.J.M. v. State, 617 So. 2d 1137, 1138 (Fla. Dist. Ct. App. 1993) (holding that a school resource officer employed by sheriff’s office must have probable cause to search); Patman v. State, 244 Ga. App. 833, 537 S.E.2d 118, 120 (Ga. Ct. App. 2000) (holding that a police officer working special duty at a high school must have probable cause).

These courts have considered such facts as whether the law enforcement officer was in uniform, had an office on the school’s campus, and how long each day the officer remained at the school. See T.S. v. State, 863 N.E.2d 362, 369 (Ind. App. 2007); In re William V., 111 Cal. App. 4th 1464, 4 Cal.Rptr. 3d 695, 697 (Cal. Ct. App. 2003). The Indiana Supreme Court in Dilworth relied in part upon a school handbook that delineated the duties of the school liaison officer. 661 N.E.2d at 320. Additionally, the Florida District Court of Appeals cited a Florida statute outlining the duties of law enforcement officers assigned to the schools. See State v. N.G.B., 806 So. 2d 567, 568 (Fla. Dist. Ct. App. 2002) (citing Fla. Stat. § 1006.12 (2001) replaced by Fla. Stat. § 1006.12 (2003)). Another important consideration is whether the law enforcement officer is employed by the school system or an independent law enforcement agency. See T.S., 863 N.E.2d at 369 (noting that the school liaison officer was employed by the Indianapolis Public School Police); State v. D.S., 685 So. 2d 41, 43 (Fla. Dist. Ct. App. 1996) (noting that the law enforcement officer conducting the challenged search was employed by the local school system and not by an independent municipal or county law enforcement agency).

In contrast, where law enforcement officers, not associated with the school system, initiate a search, or where school officials act at the behest of law enforcement agencies, the probable cause standard is generally applied. See, e.g., F.P. v. State, 528 So. 2d 1253, 1254 (Fla. Dist. Ct. App. 1988) (holding that the “school official exception” to the probable cause requirement does not apply when search is carried out at direction of police); State v. Tywayne H., 1997 NMCA 15, 123 N.M. 42, 933 P.2d 251, 254 (N.M. Ct. App. 1997) (holding that probable cause was required when a search was conducted completely at the discretion of the police officers); In re Thomas B.D., 326 S.C. 614, 486 S.E.2d 498, 499-500 (S.C. Ct. App. 1997) (holding that probable cause was required when police conducted a search in furtherance of law enforcement objective, rather than on behalf of school).

School officials and law enforcement officers play fundamentally different roles in our society. A school official’s basic task is to educate students in a safe environment, whereas a law enforcement officer’s primary duty is to detect and deter crime. Law enforcement officers must generally satisfy the higher probable cause standard in order to conduct a search, because they stand in an adversarial role to citizens and the punishment for violating a criminal statute is more severe than the consequences of violating a school regulation.

In turning to the case at bar, Deputy Lambert initiated and conducted a search of R.D.S.’s truck on the grounds of Page High School. Mr. Brown accompanied Deputy Lambert to R.D.S.’s truck and was present during the search, but did not participate. After balancing the competing interests between R.D.S.’s legitimate expectations of privacy and the State’s need for effectively investigating breaches of public order, we hold that the reasonable suspicion standard is the appropriate standard to apply to searches conducted by a law enforcement officer assigned to a school on a regular basis and assigned duties at the school beyond those of an ordinary law enforcement officer such that he or she may be considered a school official as well as a law enforcement officer, whether labeled an “SRO” or not. However, if a law enforcement officer not associated with the school system searches a student in a school setting, that officer should be held to the probable cause standard.

Officers had sufficient justification for a protective sweep of a building after following a truck loaded with marijuana in pottery from the Mexican border to Illinois. When the officers moved in to the commercial property, there were 7-10 men outside, and that was sufficient justification to fear that there might have been others inside the office building. Also, when the truck was starting to leave the scene, the officers were justified in moving in. This was not police created exigency. United States v. Mata, 517 F.3d 279 (5th Cir. 2008).

The defendant contended that the officers lacked probable cause for issuance of a search warrant for fraud. Without getting to the merits of that issue, the court just decided that the good faith exception applies and that’s that. United States v. Levy, 2008 U.S. Dist. LEXIS 9547 (E.D. Va. February 8, 2008). (Comment: The vice of this judicial laziness is that the question of probable cause for the future goes undecided. Leon has dicta that suggests this can be done, but it shouldn’t be.)

Defense counsel was not ineffective for not moving to suppress a second search in his case for which defendant had no standing. Woodard v. United States, 2008 U.S. Dist. LEXIS 9585 (W.D. Mo. February 8, 2008).*

Stop based on BOLO entitled officer to qualified immunity for that. Pulling a gun on plaintiffs during the stop was a mistake under the circumstances, but not a disqualifier for qualified immunity because it was still in good faith. Dorsey v. Barber, 517 F.3d 389, 2008 FED App. 0086P (6th Cir. 2008)*:

Applying these standards, we have no trouble concluding that Begin made a mistake. Considering that the suspects were wanted in connection with an auto theft investigation, and that plaintiffs did not manifestly pose an immediate threat to anyone’s safety or a risk of flight, Begin should have been able to “stop and hold” them without brandishing his firearm and ordering them to lie face-down on the pavement. Begin’s response to the apparent demands of the situation seems to have been exaggerated and the resultant seizure, though supported by reasonable suspicion, was, due to the unnecessarily intrusive means employed by Begin, at least arguably unreasonable.

Yet, it does not follow that Begin’s mistake necessarily disqualifies him from qualified immunity. Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Humphrey, 482 F.3d at 847. There is no support for the notion that Begin knowingly and deliberately violated plaintiffs’ right to be free from unreasonable seizure. Nor can his mistake be fairly characterized as so egregious as to suggest outright incompetence. At worst, Begin made an error of judgment, erring on the side of public safety. Not knowing the seriousness of the criminal activity for which the suspects were wanted, but knowing that the persons before him, who matched the BOLO description, had first disregarded and then resisted his orders to stop, Begin chose to stabilize the situation by acting with a preemptive show of authority. This approach turned out to be unnecessary, but cannot be said to have been plainly incompetent or objectively unreasonable. See Maryland v. Wilson, 519 U.S. 408, 414, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (recognizing that risk of harm to police and others during a traffic stop is minimized if officers routinely exercise unquestioned command of the situation). When Begin confronted plaintiffs, they were among a crowd of people. Had he equivocated in response to their challenge to his authority, tensions might quickly have escalated into a confrontation difficult to manage without the use of force, as opposed to a mere show of force. By acting firmly and without hesitation, Begin appears to have acted in the good faith belief that he was minimizing the risk of harm.

Plaintiffs’ arrest was justified. When their son was arrested, they made a move toward him, and the officer could justifiably believe that they were going to interfere with the arrest. Bradford v. Wiggins, 516 F.3d 1189 (10th Cir. 2008)*:

In this case, the governmental interest at stake was the successful arrest of Michael Bradford. When the Bradfords rushed toward their son upon his arrest, it was reasonable of the officers to make the split-second decision that the Bradfords’ actions could possibly interfere with the arrest. Therefore the brief seizure of the Bradfords was reasonable. While the Bradfords’ concern for their son’s well-being may be understandable — given how aggressively he was tackled — we hold that the deputies’ actions were reasonable in light of the totality of the circumstances, and the circumstances were unquestionably escalated by Debra and Michael’s behavior.

Officers entered and seized a package after a controlled delivery where a dog alerted to the box but it had never been opened. After a search warrant was issued for the box, it was “conspicuously devoid of narcotics, containing only sandals, two packages of underwear, two boxes of cold compresses for injuries, a figurine, a white visor, and women’s shirts wrapped in a towel.” The district court erred in granting summary judgment to the officers on both liability and qualified immunity for their conduct. Moreover, the officer’s alternative arguments on appeal were rejected because they were never presented to the district court. Demayo v. Nugent, 517 F.3d 11 (1st Cir. 2008). Comment: This is just the kind of case the Supreme Court was talking about in Malley v. Briggs: “As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” This was incompetence afoot: a dog alert but no opening the package? This only proves that police officers are blindly ignorant to false alerts by police dogs.

Ohio’s DNA collection statute is constitutional. Wilson v. Collins, 517 F.3d 421, 2008 FED App. 0088P (6th Cir. 2008). Comment: No court has yet disagreed, so why publish this?

When defendant said that he had a knife as a Terry frisk was about to start, a pill bottle could be removed from his pocket. Searching the pill bottle, however, was another matter, and Terry did not justify that. Harris v. State, 878 N.E.2d 534 (Ind. App. 2007):

Officer Hood testified he removed the items from Harris’ pocket because he “needed to know what it was to ensure it wasn’t a weapon.” (Tr. at 102.) In order to preserve officer safety, police may remove an item whose identity is not immediately discernable by touch and that might be used as a weapon. See Owens v. State, 497 N.E.2d 230, 232 (Ind. 1986). Harris told Officer Hood he had a pocketknife, and after placing Harris in handcuffs, Officer Hood needed to ensure he removed all potentially dangerous items. Accordingly, the removal of the pill bottle was permissible under Terry.

. . .

However, Officer Hood’s warrantless search inside the pill bottle went beyond the scope permitted by Terry. Officer Hood testified he told Harris during this search “[he] was not under arrest…[and was] being placed in handcuffs for his and my protection.” (Tr. at 121.) Harris was handcuffed, frisked, and all unknown items were taken from him. Once all unknown items were removed from Harris’ pocket, Officer Hood’s safety fears should have diminished, especially in light of the fact Harris was cooperating with the officer.

Denial of ownership of a knapsack during an alleged unlawful detention, which it wasn’t, was an abandonment, and the trial court properly found it abandoned. State v. Carey, 975 So. 2d 27 (La. App. 5th Cir. 2007).*

The defendant’s patdown revealed capsules in the defendant’s pocket, which could have just as easily been Tylenol or Motrin tablets. Defendant’s slightly evasive actions during the patdown did not give probable cause to believe it was contraband for a search. Cost v. Commonwealth, 275 Va. 246, 657 S.E.2d 505 (2008), revg Cost v. Commonwealth, 49 Va. App. 215, 638 S.E.2d 714 (2006):

Here, the character of the capsules seized from Cost’s pants pocket could not have been immediately apparent to Officer Davis as a result of the pat-down search. Cost’s movements and his failure to respond to the officer’s questions supported a well-educated “hunch,” but were insufficient to establish probable cause required to permit a warrantless seizure of the capsules from inside Cost’s pants pocket. See e.g., Graham v. State, 893 S.W.2d 4, 6 (Tex. Ct. App. 1994). Accordingly, we hold that the Court of Appeals erred in affirming the judgment of the circuit court overruling Cost’s motion to suppress the evidence illegally seized from his person under the Fourth Amendment of the United States Constitution.

In Ohio, a similar case suppressed crack cocaine that had to be manipulated in the pocket to determine what it was. State v. Blandon, 2008 Ohio 1064, 2008 Ohio App. LEXIS 922 (7th Dist. March 7, 2008).*

Ability of other inmates in a jail to see a body search of an incoming inmate did not make out a Fourth Amendment violation. Quansah v. Kern County Jail Commander, 2008 U.S. Dist. LEXIS 18325 (E.D. Cal. February 25, 2008).*

Reasonable suspicion developed for defendant’s continued detention from his nervousness and implausible answers, and he consented three times to the search of the car. United States v. Angulo, 2008 U.S. Dist. LEXIS 18394 (D. Colo. February 25, 2008).*