Absence of a search provision in defendant’s probation conditions did not permit officers to conduct a probation search of his property. The state’s argument that the good faith exception should apply to warrantless searches was not presented below, but it would be rejected anyway even if it was. State v. Howell, 2008 Tenn. Crim. App. LEXIS 221 (March 18, 2008):

B. Application of the “Good Faith Exception” to the Warrantless Search

The State first raised the argument that the search of Defendant’s body shop/garage and vehicle should be upheld because of the “good faith exception” as enunciated in United States v. Leon, 468 U.S. 897 (1984) in its Motion to Reconsider filed with the trial court following that court’s ruling on Defendant’s Motion to Dismiss and/or Suppress Evidence. On appeal, the State concedes that the instant case is distinguishable from Leon. The ruling in Leon was based upon a search warrant, issued by a neutral and detached magistrate, that was objectively and reasonably relied upon by law enforcement officers even though the affidavit on which the warrant was based did not establish probable cause. The State urges this Court to extend the Leon “good faith exception” to warrantless searches when a magistrate advises law enforcement officers to search without a warrant based upon unsworn statements of the officers.

First, the issue was not presented to the trial court in a timely fashion to even enable the trial court to make a finding of fact as to the existence of “good faith.” Accordingly, we are not willing, in this case, even if inclined to do so, to extend the ruling in Leon to warrantless searches. Second, this Court has held, “adopting a good faith exception under the Tennessee Constitution would unduly reduce the protections contemplated for our citizens by the Tennessee Constitution, the legislature, and the Tennessee Supreme Court.” State v. Husky, 177 S.W.3d 868, 890 (Tenn. Crim. App. 2005). Therefore, the state is not entitled to relief as to this issue.

Defendant’s own testimony gave duffle bags with drugs to another to carry them, and that gave the other the ability to consent to a search. Gamez v. United States, 2008 U.S. Dist. LEXIS 23219 (D. Utah March 21, 2008).*

Defendant consented to a search of his trunk. He was subjected to a patdown because of his excessive nervousness and admitted to having a shotgun in the trunk. “After completing the pat down search, Officer Vennard asked defendant if he could see the shotgun, and defendant responded ‘go ahead. It’s in the trunk.'” He was not under arrest, and, within the context of the totality of circumstances, this was consent. United States v. Derverger, 2008 U.S. Dist. LEXIS 22990 (N.D. N.Y. March 24, 2008).*

“By disclaiming any ownership interest in the vehicle, [the defendant] voluntarily abandoned his ownership interest in the Impala prior to the search, and thus, did not have a reasonable expectation of privacy in the vehicle at the time of the search.” United States v. Ogburn, 2008 U.S. Dist. LEXIS 23338 (S.D. Ind. March 20, 2008).*

While police reports are not admissible at trial, they can form the basis for a defendant filing a suppression motion. Once in, the court may rely on its content. United States v. Stoner, 2008 U.S. Dist. LEXIS 23126 (E.D. Cal. March 12, 2008):

Ordinarily, police reports are inadmissible in criminal actions to prove the facts stated therein. Fed. R. Ev. 803(8). However, defendant Crowley attached Mahaffy’s police report to his suppression motion and relied upon it as the facts upon which the suppression motion should be made. Certainly, Crowley cannot object to use of the police report as the facts to be utilized by the court.

In any event, defendants again misapprehend their production burden on a motion to suppress. Excluding the Mahaffy police report leaves the court with the facts submitted in the Trojanowski declaration which provide: “On November 12, 2006, at about 1400 hours an off duty security forces member (MAHAFFY) telephoned Security Forces Control Center (SFCC) to report that he witnessed two individuals drinking alcohol inside a vehicle [describing the Crowley and Stoner vehicle]…. Defendants cannot simply assert: they do not like these facts; defendants must provide some evidence to materially dispute them so as to call for an evidentiary hearing. Indeed, the suppression motion is over if only the facts asserted in the Trojanowski declaration are considered by the court.

A civilly detained sexually violent predator (SVP) can be subjected to strip searches the same as criminal detainees. The institutional needs are the same. Wolfenbarger v. Black, 2008 U.S. Dist. LEXIS 24439 (E.D. Cal. March 26, 2008):

Plaintiff first claims that he was strip-searched after his court hearing on July 10, 2002, the day of his arrival at the County Jail for his first period of incarceration at issue in this case. Plaintiff had yet to be officially paroled from Folsom State Prison on that date. SUF, P 2. He was still a penal inmate at this time and the right to be free from strip-searches is limited. There simply is no right to privacy in a prison cell, see Hudson v. Palmer, 468 U.S. 517, 526 (1984), and a prisoner may be subjected to strip-searches and body cavity searches conducted in a reasonable manner. See Bell v. Wolfish, 441 U.S. 520, 561 (1979). Here, the challenged practice of strip-searching plaintiff must be evaluated under the standard discussed in Turner v. Safley, 482 U.S. at 89. The practice is valid “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. at 89. An adequate basis for the search has been shown here.

DEA’s use of state officers to make a valid traffic stop as a part of their investigation did not violate the Fourth Amendment. United States v. Williams, 2008 U.S. Dist. LEXIS 24665 (E.D. Ark. March 18, 2008).*

Continual information from CI about defendant’s activities and police corroboration of that information gave reasonable suspicion. United States v. Horn, 2008 U.S. Dist. LEXIS 24596 (E.D. Ky. March 27, 2008).*

A blanket assertion that an affidavit is false for Franks purposes is insufficient–the specific parts that are false needs to be addressed. United States v. Lombardo, 2008 U.S. Dist. LEXIS 24704 (D. Utah March 27, 2008):

Defendant Baron Lombardo claims generally that “[t]he affidavit of Agent Hill is false in its entirety and misrepresents the facts as they occurred on the day in question.” However, this general assertion does not satisfy Defendant Lombardo’s burden to make a substantial preliminary Franks showing. As stated by the Franks Court, the defendant must “point out specifically the portion of the warrant affidavit that is claimed to be false” and offer a “statement of supporting reasons.”

A computer hacker gets three years for hacking into the Orange County 911 system “at first claiming to report a drug overdose and then alleging a possible murder” at a home where nothing happened. The SWAT team descended on the home and pointed guns at and arrested the occupants. Hacker Gets 3 Years for 911 Hoax, on NYTimes.com, posted 30 minutes ago.

SCOTUS granted cert yesterday in Pearson v. Callahan, 07-751, decision below 494 F.3d 891 (10th Cir. 2007), posted here July 17th.

Question Presented: Whether entering the house of an individual pursuant to the “consent once removed” exception to the warrant requirement violates the Fourth Amendment.

From Willamette Law School:

The issue in this case is whether police officers violated respondent’s Fourth Amendment right to protection from unreasonable search and seizure when the officers entered the home of respondent pursuant to a “consent once removed” exception to the warrant requirement.

Officers from the Central Utah Narcotics Task Force (petitioners) received information from a confidential informant that Callahan (respondent) was a methamphetamine dealer. Petitioners met with the informant before the sale, gave him a marked $100 bill, escorted him to respondent’s home, and waited for the signal from the informant that the sale was complete. When the officers heard the signal, they entered respondent’s house through a porch door. Respondent consented to a protective sweep of the house. The officers found evidence of drug sale and possession while in the house, yet they did not have a warrant at any point in the search of the house. Respondent was charged and convicted of possession and distribution of methamphetamine. The trial court determined that the evidence found during the warrantless search was admissible because of the existence of an exigent circumstance. The Utah Court of Appeals reversed, finding that no exigent circumstances existed. Based on this ruling, respondent filed a civil action in the United States Court for the District of Utah, against the individual officers and the task force. The District Court dismissed respondent’s claims, on the ground that (1) respondent’s constitutional rights were not clearly established because the “consent once removed” doctrine applied to the search, and (2) suit against the officers was shielded by qualified immunity. The Court of Appeals reversed, holding that, although the informant had the express permission of the owner to enter the house, this permission does not extend to officers outside of the home, regardless of their collaboration with the informant. Therefore, respondent’s civil suit was valid because this was an unreasonable search and seizure and respondent established a constitutional right. [Summarized by Dorothy Ryan]

The NYTimes article is here.

An administrative investigation of polluting water quickly morphed into a criminal investigation, and investigators even lied about their focus. The fact he was lied to did not change the course of the investigation at all because the outcome would have been the same. United States v. Rosenblum, 2007 U.S. Dist. LEXIS 96607 (D. Minn. December 21, 2007):

Here, Defendants can point to no constitutional right that was prejudiced by MCES’s false statements regarding the nature of the water monitoring conducted in March 2005. This monitoring was authorized by search warrant and therefore the Defendant’s Fourth Amendment rights were in no way compromised. The information acquired by search warrant in this case is different from the information collected in Tweel where the Defendant consented to a search thereby prejudicing his right to be free from unreasonable search and seizure. In this case, there is nothing the Defendants could have done (short of obstructing the investigation) to prevent the monitoring had they known of its true nature, whereas in Tweel, the defendant could have asserted his Fourth Amendment right not to consent to the search had he known the investigation was criminal in nature.

Moreover, unlike the defendant in Stringer, who could have asserted his Fifth Amendment right not to make the statement, there is no right the Defendants here could have exercised that would have changed the course of the investigation. It is true that had the Defendants known that the investigation was criminal in nature, they might have been able to insist on the issuance of a search warrant before allowing the monitoring otherwise used only for civil monitoring purposes, to be collected for criminal enforcement. However, the agents had already secured a search warrant and therefore nothing about the deception impacted the exercise of any constitutional right.

Officers did not have probable cause to believe that the place searched was probationer defendant’s residence. He was a guest in somebody else’s house, the place he was suspected of delivering drugs from. Therefore, the entry without a warrant was unlawful. United States v. McAdoo, 2008 U.S. Dist. LEXIS 22231 (C.D. Cal. March 6, 2008):

In United States v. Howard, the Ninth Circuit surveyed thirty years of relevant caselaw and noted four “patterns” among those cases in which the court found probable cause:

(1) the probationer “gave [the officers] good reason to suspect that the [probationer] was using [the searched home] as his home base”;
(2) the probationer had a key to the searched residence;
(3) the probationer (or someone close to him) admitted that he resided at the searched home; and
(4) the probationer “did not appear to be residing at any address other than the one searched.”

447 F.3d at 1266. These patterns are not required elements, but cases upholding a search typically contain at least three of the Howard patterns.

Comment: This case is an intriguing explanation of the four factors finding them all deficient or weak in this case.

Actions of state officials undertaken in a reasonable belief of suspected child abuse that even interfere with family rights are protected by qualified immunity. Fletcher v. Brown County, 2008 U.S. Dist. LEXIS 21882 (D. Neb. March 18, 2008):

However, the right to family integrity, that is, a parent’s right to the care, custody and management of their children, is not absolute and is limited by the compelling governmental interest in the protection of minor children. Manzano, 60 F.3d at 509-510. Indeed, the right to family integrity has been characterized by the First Circuit as “a parent’s right to custody in the absence of a case worker’s reasonable suspicion of child abuse.” Hatch v. Department for Children, Youth and Their Families, 274 F.3d 12 (1st Cir. 2001). The need to balance these competing interests to determine the legality of the investigator’s conduct usually means that the parent’s asserted right cannot be considered clearly established in the context of a child abuse investigation. See, e.g., Foy v. Holston, 94 F.3d at 1535 n.8 (11th Cir. 1996) (“When the law contemplates some kind of balancing test to determine the ultimate question of lawfulness or unlawfulness of an act, qualified immunity almost always applies to shield the public servant defendant.”). Thus, whatever rights a parent has to be free from an alleged unreasonably conducted investigation regarding suspected child abuse, such rights are not clearly established. As set forth in Foy, “state officials who act to investigate or to protect children where there are allegations of abuse almost never act within the contours of ‘clearly established law.'” Id. at 1537.

The Eighth Circuit has stated the rule regarding qualified immunity in child abuse investigation cases simply:

[W]hen a state official pursuing a child abuse investigation takes an action which would otherwise unconstitutionally disrupt familial integrity, he or she is entitled to qualified immunity, if such action is properly founded upon a reasonable suspicion of child abuse.

Dornheim v. Sholes, 430 F.3d 919, 926 (8th Cir. 2005) (citations omitted). As long as police officers “were within the confines of” the child abuse investigations, qualified immunity will apply. Id.

On March 12th, there is this post about computer searches in private litigation sanctioned by F.R.C.P. 34(a). In a bizarre assault and false imprisonment case from an incident in 2006 in court in my hometown is this, from the Watertown Daily Times: Defendants must produce computers in skinny-dipping case.

Skinny dipping in the St. Lawrence River, always 20º colder than Lake Ontario, was always fun. When I did it, it was in the late 1960s at Alexandria Bay. Nobody stole my clothes, either, because there were too many of us in on it.

On a state’s appeal from dismissal of charges against City Council members because of a defective arrest warrant, a defective warrant does not deprive the court of jurisdiction to try the defendant. A defective warrant might require suppressing a statement obtained under the defective arrest warrant, but that was not an issue here. State v. Richardson, CR07-610 (Ark. March 13, 2008):

An illegal arrest, without more, has never been viewed as either a bar to subsequent prosecution or an absolute argument against a valid conviction. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994) (citing United States v. Crews, 445 U.S. 463 (1980)); see also Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). While an invalid arrest may call for the suppression of a confession or other evidence, it does not entitle a defendant to be discharged from responsibility for the offense. Biggers, supra; Wallace, supra; O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984). “The court’s jurisdiction to try the accused does not depend upon the validity of the arrest.” Singleton v. State, 256 Ark. 756, 757, 510 S.W.2d 283, 284 (1974).

There were multiple other cases, all involving city council members, reversed citing back to Richardson decided the same day, one by each member of the court: Holden, Ashwood, Joshaway, Weaver, and Lee.

Comment: Why they weren’t decided as one case seems pointless, unless they are building statistics for the AOC.

Defendant’s flight from an unreasonable stop led to him abandoning drugs in flight. Here, the flight was not attenuated from the unlawful activity and the motion to suppress is granted. United States v. Harris, 2008 U.S. Dist. LEXIS 3846 (D. Colo. January 3, 2008):

For the same reasons, I decline to adopt the government’s argument that Defendant’s flight was an intervening event that dissipated the taint of the initial unlawful search and seizure. It may well be that flight or resisting arrest constitutes an intervening cause in other circumstances but not under the facts of this case where there was never a break in the causal chain following the unlawful search and detention.

Defendant’s failure to report was sufficient reason for a parole search. United States v. Lajuan, 2008 U.S. Dist. LEXIS 3811 (S.D. Ohio January 2, 2008).

The government satifies its discovery obligation by disclosing materials obtained by search that it intends to use at trial sufficiently in advance that defendant can file a motion to suppress. United States v. Lujan, 530 F. Supp. 2d 1224 (D. N.M. 2008).*

Reasonable suspicion supported defendant’s stop with an out of state temporary registration that was in the back window and barely visible. City of Grand Forks v. Mitchell, 2008 ND 5, 743 N.W.2d 800 (2008).*

There were two searches incident to an arrest, the first being contemporaneous with the arrest and second occurring after plaintiff was taken away. The second was invalid, and the officer had no qualified immunity. Brown v. Fisher, 251 Fed. Appx. 527 (10th Cir. 2007) (unpublished):

Here, the district court cited Belton and Thornton, but not Lugo. Of more concern, the district court did not distinguish between Fisher’s search of Brown’s vehicle and Weber’s search of Brown’s vehicle. The court stated: “Fisher had probable cause to arrest plaintiff, who was a recent occupant of the vehicle. It was therefore reasonable for the officers to search the passenger compartment.” (R. Vol. I, Doc. 40 at 11.) The court’s conclusion in this regard glosses over the fact that the two searches were not contemporaneous. Fisher searched Brown’s vehicle immediately after placing Brown in his patrol car, in order to retrieve Brown’s billfold. Weber, on the other hand, did not search Brown’s vehicle until after Fisher and Brown had left the scene. Thus, viewing the disputed facts in the light most favorable to Brown, Fisher’s search was incident to a lawful arrest, under Brothers, while Weber’s was not, under Lugo.

Record supports that consent was voluntary despite drawn weapons at first. United States v. Arreola, 250 Fed. Appx. 765 (8th Cir. 2007) (unpublished):

Eduardo argues that his consent was nonetheless coerced because numerous law enforcement officers were present when he consented, and because they all drew their weapons when they entered the apartment. We disagree. The mere presence of multiple officers and weapons does not compel a finding that consent is involuntary. … The officers here never used their weapons to coerce Eduardo to give consent. They drew their weapons only when they first entered the apartment, and holstered them once the scene was secure. Eduardo has not identified any behavior by the officers designed to intimidate him or to force him to cooperate, and he signed a written form that granted them permission to search. The district court did not clearly err in finding that Eduardo’s consent was voluntary.

The Major League Baseball steroid record search warrant case finally, 26 months after submission, comes out of the Ninth Circuit; all 112 pages of it; three consolidated appeals United States v. Comprehensive Drug Testing, 513 F.3d 1085 (9th Cir. 2008) (omitting some procedural arguments). The summary of the holding is from page 86:

VII

To summarize the resolution of these consolidated appeals:

1) We have no jurisdiction to address the legal foundation for the grant of the Rule 41(g) motion in the Central District of California, although we recognize that our authoritative interpretation of Tamura conflicts with the vision of Tamura upon which that order was based. The government cannot obtain redress for any alleged errors or impropriety in that order, where it failed to object in a timely manner. The government’s appeal of the grant of the Rule 41(g) motion is DISMISSED for lack of jurisdiction; the order of the Central District of California denying the government’s motion for reconsideration is AFFIRMED.

2) The government’s seizures at the Quest facility in Las Vegas were reasonable under the Fourth Amendment. The order of the District of Nevada granting the Rule 41(g) motion is REVERSED.

3) The record, illuminated by caselaw, reveals that the subpoenas to CDT and Quest, which covered the same evidence as the contemporaneous search warrants, were not unreasonable and did not constitute harassment. The order of the Northern District of California quashing the May 6 subpoenas is REVERSED.

There was a partial concurrence and a partial dissent from one judge.

First, the Players’ Association had standing to challenge the searches on behalf of its members.

Second, the standard for Players’ Association’s motion for return of property under Rule 41(g) is:

1) whether the Government displayed a callous disregard for the constitutional rights of the movant; 2) whether the movant has an individual interest in and need for the property he wants returned; 3) whether the movant would be irreparably injured by denying return of the property; and 4) whether the movant has an adequate remedy at law for the redress of his grievance.

The second and fourth standards were treated as a given. The first was not met because there was probable cause, and the third was met, so:

Although we conclude that the district court erred in finding callous disregard of Fourth Amendment rights, the three other equitable jurisdiction factors weigh in favor of hearing the motions by the Players Association. See Ramsden, 2 F.3d at 326 (holding that where three of the four factors favored an exercise of equitable jurisdiction, the court had power to hear a Rule 41(g) motion). As such, we cannot say that Judge Mahan’s initial choice to hear the motion constituted an abuse of discretion.

Third, on a massive search of documents and computer files, the Tamura test is still followed and quite valid, despite its age, particularly in the computer age, that the government can take what reasonably appears to be covered by the warrant and search it elsewhere:

In the comparatively rare instances where documents are so intermingled that they cannot feasibly be sorted on site, we suggest that the Government and law enforcement officials generally can avoid violating fourth amendment rights by sealing and holding the documents pending approval by a magistrate of a further search, in accordance with the procedures set forth in the American Law Institute’s Model Code of Pre-Arraignment Procedure.fn45 Tamura, 694 F.2d at 595-96 (footnote omitted).

45. The Tamura court pointed to the American Law Institute’s Model Code of Pre-Arraignment Procedure as a guide that would help agents avoid constitutional violations in situations where intermingled documents needed to be seized but where the search warrant lacked a protocol for such seizures. 694 F.2d at 595-96. The Tamura court found that the agents had violated Fourth Amendment rights by making a “wholesale seizure,” rendering the post-search alternative approach to be advisory dicta. See id. at 595; see also United States v. Hill, 322 F. Supp. 2d 1081, 1090 (C.D. Cal. 2004) (noting that after the Tamura court “held that the government’s wholesale seizure of company documents was illegal because the agents intentionally seized materials they knew were not covered by the warrant … the Tamura court suggested, albeit in dicta, that [for such seizure of all records] a warrant would be appropriate” (emphasis added)).

It is true that Tamura‘s two methods of a pre-search protocol or post-search review were advised in dicta and represented pragmatic approaches rather than constitutional rules. We recognize that some courts in other circuits have questioned the procedures advised in Tamura. One district court in Michigan explained: “The Court declines to follow Tamura, at least in this case, because Tamura did not involve computer files and therefore did not consider the specific problems associated with conducting a search for computerized records.” United States v. Scott-Emuakpor, 2000 WL 288443, at *8 (W.D. Mich.). Although declining to apply Tamura’s pragmatic approach to computer searches, Judge Quist stated: “This is not to suggest that seizure of all computer disks is permissible whenever the warrant authorizes the seizure of computer records.” Id. Another court, also referencing Tamura, noted that in the modern computer context a “‘suggestion’ by a panel of the Ninth Circuit in a 20-plus year old case is not persuasive.” United States v. Kaufman, 2005 WL 2304345, at *4 n.3 (D. Kan).

Like these district courts from other circuits, we recognize that the computer era adds new complexity to the test of reasonableness under the Fourth Amendment. Precisely for this reason, we view Tamura as especially significant in the computer context.

Recently, we applied Tamura to uphold seizures of intermingled documents in the computer context. In United States v. Adjani, 452 F.3d 1140 (9th Cir. 2006), investigating agents obtained a search warrant to seize evidence of the defendant Adjani’s extortion activities. Id. at 1142. The search warrant contained a detailed protocol for the seizure of intermingled evidence. Id. at 1149 (“The Adjani warrant ‘describe[d] in great[] detail the items one commonly expects to find on premises used for the criminal activities in question ….'” (alterations in original)). ….

. . .

In light of these concerns, we concluded [in another case] that it was “reasonable under the Fourth Amendment for the police to take all of [the defendant’s] computer storage media from his home (they did not find his computer) so they could conduct their search offsite in a police laboratory, rather than carrying out the search onsite and taking only whatever evidence of [targeted material] they might find.” Id. at 968. “[T]he warrant was not fatally defective in failing to require an onsite search and isolation of child pornography before removing storage media wholesale.” Id. at 975.

We then addressed whether the warrant was invalid because it lacked a specific protocol for seizures of electronic data. Although we made clear that a specific protocol was not mandatory, we stated that a “warrant[] authorizing blanket removal of all computer storage media for later examination,” must be premised upon an “affidavit giving a reasonable explanation … why a wholesale seizure is necessary.” Id. at 976 (citing Tamura, 694 F.2d at 595). “A warrant describing a category of items is not invalid if a more specific description is impossible,” id. at 973, as long as the affidavit explains why “the officers could not reasonably describe the objects of their search with more specificity,” id. at 976.

The court found Tamura complied with:

Furthermore, the record reveals that the government complied with the protocol in the warrant. Agent Abboud, a computer analyst, determined that on-site review would not be feasible in a reasonable amount of time. The agents then copied several intermingled documents, including the Tracey directory. They did not seize the actual computer, although the search warrant authorized full seizure of the hardware if computer analysts determined that neither on-site searching nor copying were feasible. The government thereby enabled CDT to continue its business operations.

Although the Players Association contends that the government behaved unreasonably by copying the entire Tracey directory, an analysis of the difficulty of segregating intermingled electronic data reveals the opposite.

. . .

“The government should not be required to trust the suspect’s self-labeling when executing a warrant.” Adjani, 452 F.3d at 1150. Agents had no duty to rely on CDT personnel to point out the files seizable under the warrant. Like most searched parties, CDT had an incentive to avoid giving over documents of which the government might be unaware and to read the search warrant as narrowly as possible. Moreover, the government had no reason to confine its search to “key words” such as the names of the baseball players. “Computer files are easy to disguise or rename, and were we to limit the warrant to such a specific search protocol, much evidence could escape discovery simply because of [the defendants’] labeling of the files.” Id. Such a limited search could easily have overlooked documents crucial to the investigation, such as the specimens at Quest, which were identified only by number. See supra pp. 1086-90.

We do not discern a violation of the Fourth Amendment’s requirements simply because the agents determined, upon the review and recommendation of a computer specialist, that certain intermingled files could not be feasibly sorted on-site. As we explained in Tamura, and reiterated in Adjani and Hill, the seizure of electronic evidence can entail complex sifting efforts. By obtaining from a neutral magistrate permission to seize intermingled documents under a specific protocol, the government respected privacy interests while pursuing the law enforcement. The agents’ ultimate decision to remove relevant data for off-site review stemmed not from disregard of privacy rights, but from sensitivity to the ongoing disruption caused by the search to CDT–an innocent third party in the underlying investigation.

. . .

The government’s seizures were neither unreasonable nor exceeded the four corners of the warrants. Our technologically advancing world combines in novel forms the kind of data that in a previous age might have been segregated. Parties are not immunized from law enforcement simply because they choose to store data in complex or integrated formats. We conclude that the district court abused its discretion by granting the Rule 41(g) motion based upon its contrary, and erroneous, view of the law.fn50

50. We do not hold that the government enjoys a right to “wholesale” seizure of evidence without judicial authorization; indeed, our decision stands for the opposite. See supra Section IV; see also Tamura, 694 F.2d at 594-96.

We do not doubt that a different case might present facts under which the seizure of intermingled documents would constitute an “unreasonable search[ ] and seizure[ ].” U.S. Const. amend. IV. But that case is not presented here.

A judge issued a search warrant for an apartment in a multiple unit structure but required that the police further investigate which of two apartments was allegedly involved in criminality; he did not require that the police return with this additional, necessary information, but instead issued the warrant on the condition that it not be executed until that additional information was obtained. The appellate court concluded that this process violated the constitutional requirement of the Fourth Amendment and N.J. Const. art. I, ¶ 7, that a search warrant be issued by a “neutral and detached magistrate” because the judge ceded his authority to the discretion of the police. State v. Marshall, 398 N.J. Super. 92, 939 A.2d 813 (2008):

Based upon what was presented at that time, and based upon the issuing judge’s implicit determination that the police had failed to identify the particular apartment within 105 Wayne Avenue that was being used by Daniels, the warrant should not have issued. Therefore, the information obtained from the interrogation of Daniels, gathered after the search warrant issued, was constitutionally irrelevant, and so too are the fact findings made by the trial judge at the suppression hearing about the credibility of Daniels and the State’s witness.

In this same vein, the process established by the judge in the warrant itself–that the police thereafter obtain additional information and evaluate it for probable cause before executing the warrant–starkly violated the “detached and neutral magistrate” requirement of the Fourth Amendment and Article I, paragraph 7 of our state constitution. Only a neutral judge is permitted to issue a warrant, Coolidge v. New Hampshire, 403 U.S. 443, 450, 91 S. Ct. 2022, 2030-31, 29 L. Ed. 2d 564, 573 (1971) (holding that “the whole point of the basic rule … is that prosecutors and policemen cannot be asked to maintain the requisite neutrality with regard to their own investigations”), and only after assessing the information contained within the four corners of the affidavit or other sworn information provided at the time of the application, Schneider, supra, 163 N.J. at 363, 749 A.2d 336. Justice Jackson’s eloquent summary is worth repeating:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement officers the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

[Johnson, supra, 333 U.S. at 13-14, 68 S. Ct. at 369, 92 L. Ed. at 440 (footnotes omitted).]

These fundamental concepts were breached here when the issuing judge turned his obligation to find the existence of probable cause over to the discretion of the police.

What should have occurred here–to conform the issuance of the warrant to constitutional principles–was for the judge to decline to issue the warrant when the affiant concededly failed to provide sufficient certainty about the identity of the apartment to be searched. Probable cause would have appeared to have been established to search Daniels and the other premises utilized by Daniels and, if what occurred after Daniels was apprehended was accurately stated at the suppression hearing, the police would have then learned of the particular apartment at 105 Wayne Avenue that held their interest. A return to the judge with a new affidavit–or, assuming time was an issue, through the presentation to the judge of sworn information through the more expeditious modes permitted by court rule–describing in sufficient detail what was learned from their continuing investigation could then have been reviewed by the judge, and the judge could then have determined whether probable cause to search the first floor apartment at 105 Wayne Avenue had been established. If satisfied, the warrant would then have issued, been executed, and the evidence obtained would not have been rendered vulnerable to the exclusionary rule. As is readily apparent, this additional process would have placed no undue burden on law enforcement or on the issuing judge.

Officer’s “use of take down lights to illuminate the area before approaching the vehicle did not constitute a seizure. To hold otherwise would discourage officers from using such lights when necessary for their safety or the safety of others. See Commonwealth v. Cavanaugh, 366 Mass. 277, 282 (1974) (flashlight).” Commonwealth v. Briand, 71 Mass. App. Ct. 160, 879 N.E.2d 1270 (2008). The court then, however, miscites LaFave for the proposition that use of a flashlight is not a seizure when LaFave says it is not a search:

Cases elsewhere indicate that the use of artificial light, without more, does not effect a seizure. For a collection of cases, involving mostly spotlights, permitting such use and finding no seizure, see Campbell v. State, 841 N.E.2d 624, 628 (Ind. Ct. App. 2006). See generally 1 LaFave, Search and Seizure § 2.2(b), at 461 (4th ed. 2004).

Comment: Use of blue lights is a seizure so why isn’t the use of “take down lights”? This is just wrong, and a perfect example of result oriented jurisprudence: If the law doesn’t fit, well, then, just bend it and say it fits.

In a classic example of a scope of search being limited to that which is being sought, an officer who was permitted to enter to search for a person for whom he had an arrest warrant looked under a bed and pulled out a case and looked inside. That exceeded the scope of search. Looking in the closet was permissible, and the officer found guns. When defendant came home, the officer determined that defendant was a felon, so the seizure of the guns from the closet was valid. He pulled them out for his own safety until the search for the warranted person was complete. State v. Giamarco, 2007 Ohio 6794, 2007 Ohio App. LEXIS 5950 (5th Dist. December 3, 2007).*

Defendant’s mere denial he was in possession of drugs found in his car was not “opening the door” to the state’s offering evidence of his refusal of consent. He had a right to refuse consent, and this was not “opening the door” to anything. And, the state is caught parsing a quotation in its brief to leave out the part that benefits the defendant. State v. Moller, 217 Ore. App. 49, 174 P.3d 1063 (2007):

In this case, defendant exercised his constitutional right to refuse consent to a warrantless search of his car. And, the admission of evidence of that refusal invited inferences prejudicial to his defense. It would seem necessarily to follow that the trial court erred in admitting the evidence of defendant’s refusal. As we have noted, the state concedes that ordinarily it is erroneous to admit evidence of a defendant’s refusal to consent to a search. The state nevertheless insists that no reversible error occurred in this case because defendant, by insisting that he knew nothing of the contents of the car, invited the state to disprove the assertion with evidence of his refusal. Quoting Green, the state contends that evidence of defendant’s refusal to consent to the search “is relevant in that it shows that he believed that the results [of a search] would tend to incriminate him and thus shows that he believed that he was guilty.” 68 Ore. App. at 522.

The state does not explain, however, and we do not understand, how a defendant “opens the door” to testimony about a decision to invoke his constitutional rights merely by denying that he committed the crime charged. The state’s reliance on Green certainly does not provide the answer to that question. The portion of the decision that it quotes is taken from this court’s explanation of why evidence of a defendant’s exercise of constitutional rights cannot be admitted, i.e., precisely because it may give rise to an inference that the defendant believes that he or she had something to hide. It is, we explained in the balance of the paragraph from which the state derives its quotation,

“testimony concerning the defendant’s belief in the central issue of the case. For him to reveal his inner thoughts [by electing, in that case, to refuse to take a field sobriety test] is necessarily to make a communication, whether by words or by actions. For the state to compel a defendant to reveal those thoughts is to require him to testify against himself and thus to violate Article I, section 12, of the Oregon Constitution.”

Id. at 522-23.

Changing the argument on appeal from the one presented to the trial court is a waiver of the argument not presented to the trial court. State v. Jones, 217 Ore. App. 110, 174 P.3d 1037 (2007).*

Defendant’s house was about to be searched with a search warrant when he drove off, and a marked car was used to stop him and bring him back to the scene of the search where he gave up the combination to a safe that the officers would have broken open if he didn’t give it up. The search was lawful. Rochon v. State, 2008 OK CR 1, 176 P.3d 362 (2008). (Comment: To me, it is hardly a violation of the defendant’s Fourth Amendment rights to get the combination to the safe from the defendant to avoid having to break it open. The alternative for him is worse, but he can always disavow the safe and let them break in. The defendant would be entitled to a Miranda warning before giving up the combination, however, because it would be an admission of knowledge of the contents of the safe.)

Officers arrived in two cars in “full code” for a “fight in progress” based on a 911 call but found a crowd and no fight. Defendant was in a car parked nearby, and he got out of his car and walked over to see what was going on. The officers turned their questioning to him and he was not free to leave while the questioning was going on, and there was no reasonable suspicion for continued questioning. State v. Willoughby, 2008 Ida. App. LEXIS 5 (January 8, 2008).*

Search incident and exigent circumstances justified taking of blood sample from defendant at the scene of an accident where he struck an officer who was on foot. His behavior at the scene justified his arrest. Vaughn v. State, 972 So. 2d 56 (Miss. App. 2008).* (Comment: The Mississippi courts website still has no 2008 cases online.)

Wisconsin holds that, “in kidnapping cases, the emergency doctrine permits a search not only for the kidnap victim, but also for evidence that might lead to the victim’s location.” The searches here were lawful. State v. Larsen, 2007 WI App 147, 302 Wis. 2d 718, 736 N.W.2d 211 (2007).

Game wardens were investigating illegal use of ATVs on state protected lands and came upon the defendants. The defendants were armed and the officers asked about other weapons, and the defendants validly consented to a search of their trucks that revealed drug paraphernalia. One defendant actually assisted in the search of his vehicle, and that indicated voluntariness. State v. Hartwig, 2007 WI App 160, 302 Wis. 2d 678, 735 N.W.2d 597 (2007).

Traffic stop in a “criminal hot spot” that led to seeing a gun justified a search of the car. United States v. Kimber, 2007 U.S. Dist. LEXIS 31978 (S.D. Ohio May 1, 2007).*

Defendant passenger had standing to challenge the stop of the vehicle he was riding in [the issue pending in Brendlin v. California, argued April 23d]. The use of a drug dog while waiting for the computer check to come back was reasonable. United States v. Garcia-Medina, 2007 U.S. Dist. LEXIS 32073 (D. Kan. April 30, 2007).*

Defendant was a cashier at a National Park store and she was arrested without a warrant after computer surveillance of her making sales but pocketing the money. She was charged with theft and felony conspiracy. Due to a family emergency, the Park Magistrate was unavailable for 28 hours, so she was late being presented to a magistrate. This was not a deliberate or egregious delay justifying dismissal of the charges. United States v. Guthrie, 2007 U.S. Dist. LEXIS 32329 (E.D. Cal. April 18, 2007).

Defendant abandoned property for expectation of privacy purposes by leaving it on a telephone pole when police approached. It was in a public place and away from his person. The burden of proof is not beyond all doubt. People v. Henry, 477 Mich. 1123, 730 N.W.2d 248 (2007).*

Similarly, in a Texas case, defendant saw a police car approach and he obviously threw something into a car that was not his. When the officer approached the defendant, he was excessively nervous, and the officer’s reaching into the car and opening the package was not unreasonable because there was no evidence that would render defendant’s claim of privacy objectively reasonable. Jimenez v. State, 2006 Tex. App. LEXIS 11278 (Tex App. — San Antonio September 27, 2006, released for publication April 13, 2007).*

Defendant’s close proximity to where drugs were found during a search was a factor in determining constructive possession. Reynosa v. State, 2006 Tex. App. LEXIS 8941 (Tex. App. — San Antonio October 18, 2006, released for publication April 23, 2007).*

Eighth Circuit (2-1) expresses doubt as to the “single purpose container” rule in light of Arizona v. Hicks but doesn’t have to decide it. United States v. Banks, 514 F.3d 769 (8th Cir. 2008) (Loken, C.J. disagrees with the following, but, if you litigate in the Eighth Circuit, you can’t be surprised anytime he agrees with the government; he’s that predictable because he never saw a search he didn’t like):

Police may seize, without a warrant, an item that is 1) in plain view 2) when it is observed from a lawful vantage point, 3) where the incriminating character of the item is immediately apparent. Horton v. California, 496 U.S. 128, 136-37 (1990). The first requirement, that the objects be in plain view, “is often considered an exception to the general rule that warrantless searches are presumptively unreasonable. …” Id. at 133-34. The third requirement, that the incriminating character of an item be immediately apparent, is satisfied when police have “probable cause to associate the property with criminal activity.” United States v. Raines, 243 F.3d 419, 422 (8th Cir. 2001) (internal quotation marks omitted). Probable cause is required to justify the seizure of an item that police observe in plain view. Arizona v. Hicks, 480 U.S. 321, 326-27 (1987). Ultimately, the standard by which a warrantless search and seizure is reviewed under the Fourth Amendment is reasonableness. Id.

First, we consider whether police should have obtained a warrant before they opened the Phoenix Arms container. Observing objects in plain view violates no reasonable expectation of privacy, which obviates the need for a search warrant. Horton v. California, 496 U.S. 128, 133 (1990) (stating that no invasion of privacy occurs when an item is observed in plain view). Ordinarily, a warrant is necessary before police may open a closed container because by concealing the contents from plain view, the possessor creates a reasonable expectation of privacy. Robbins v. California, 453 U.S. 420, 427 (1981), overruled on other grounds by United States v. Ross, 456 U.S. 798 (1982). However, like objects that sit out in the open, the contents of some containers are treated similarly to objects in plain view. In Arkansas v. Sanders, the Court suggested that no warrant is required to open such containers: “some containers (for example … a gun case by their very nature cannot support a reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13 (1979) (emphasis added), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991). We previously followed the Sanders dictum when we affirmed a district court’s determination that no warrant was necessary to search a “bag [whose] size and shape suggested it contained a gun.” United States v. Miller, 929 F.2d 364, 364-65 (8th Cir. 1991). This exception is limited to those rare containers that are designed for a single purpose, Texas v. Brown, 460 U.S. 730, 750-51 (1983) (Stevens, J., concurring in the judgment), because the “distinctive configuration of [such] container[s] proclaims [their] contents; [consequently,] the contents cannot fairly be said to have been removed from a searching officer’s view,” Robbins, 453 U.S. at 427. Individuals, therefore, possess a lesser expectation of privacy in the contents of such containers when the container is observed from a lawful vantage point.

Exigent circumstances were not shown for a warrantless entry into a home looking for fatigued illegals who had crossed the border. United States v. Troop, 514 F.3d 405 (5th Cir. 2008):

As noted above, the Government points to the fact that the aliens walked some distance in ninety-degree heat and showed signs of fatigue at the end of their journey as evidence of physical distress. This alone is insufficient to demonstrate exigent circumstances requiring an immediate entry into the house. To hold otherwise would permit warrantless entries into homes in which an occupant had recently taken a long walk in the Texas summer and become tired as a result. The Fourth Amendment requires more. See Mincey v. Arizona, 437 U.S. 385, 392 (1978) (noting that the exigent circumstances exception to the warrant requirement applies when officers “reasonably believe that a person … is in need of immediate aid” (emphasis added)). In this case, there was no evidence of medical distress requiring immediate aid, such as loss of blood, signs of physical illness, or evidence that an individual had to be carried or dragged. The Government also did not present any evidence of what type of medical distress is typically produced by a four-mile walk in the heat at night, which might have indicated that it was probable that the suspected aliens needed aid. Absent any such evidence, it was unreasonable for the agents to conclude that the suspected aliens likely needed immediate aid based solely on the fact that the aliens showed fatigue.

Without any objective evidence of physical distress, the failure of anyone to respond to the agents’ knocking at the front and back doors of Troop’s house also becomes insufficient to create exigent circumstances. Indeed, it is hardly surprising that the aliens chose not to answer the door, given that Border Patrol agents were waiting to arrest them on the other side.