Officer had probable cause on the totality to search a case that the defendant tossed into a car, thereby making the car subject to search. United States v. Longmore, 2008 U.S. Dist. LEXIS 3523 (D. Conn. January 17, 2008):

Normally a search requires a warrant but the automobile exception to that rule is relied on here. His tossing the case into the car justified a belief that defendant sought to hide something. That contraband was believed to be found in the car was reasonably reinforced by his drug denial. Given a car’s mobility and one’s diminished expectancy of privacy therein, that belief in the circumstances presented to the officers, warranted the look into the car and the case by Broems. See Pennsylvania v. Labron, 518 U.S. 938, 939, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996)(Per curiam). See also California v. Acevedo, 500 U.S. 565, 570, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991). A stopped vehicle can fall within the exception. United States v. Vassiliou, 820 F.2d 28, 30 (2d. Cir. 1987).

Suspicionless probation search is still valid in California, recognizing that arbitrary or harassing searches would not be. People v. Medina, 158 Cal. App. 4th 1571, 70 Cal. Rptr. 3d 413 (5th Dist. 2007), published January 17, 2008.*

Weaving to support a traffic stop has to be more than a minimal amount, and here it was. State v. Pendergast, 2008 Wisc. App. LEXIS 37 (January 15, 2008).*

Officers believed that the defendant’s wife and son had equal access to defendant’s computer to consent to its search. His wife played only solitaire, but his son was aware of the child porn, so it was reasonable for them to believe they had equal access. United States v. Allen, 250 Fed. Appx. 9 (5th Cir. 2007) (unpublished) (raised as an IAC claim).

Consent to search mooted defendant’s protective sweep argument that the sweep was for a gun and not a person as contemplated by Buie. The consent was not tainted by the prior protective search. United States v. Delancy, 502 F.3d 1297 (11th Cir. 2007):

In Santa, we considered three factors in determining whether a defendant’s consent was tainted by his illegal arrest: “[1] the temporal proximity of the seizure and the consent, [2] the presence of intervening circumstances, and, particularly, [3] the purpose and flagrancy of the official misconduct.” 236 F.3d at 677.

The three factors are not meant to be exhaustive, and commentators have suggested others. See 4 Wayne R. LaFave, Search and Seizure § 8.2(d) (4th ed. 2004) (discussing additional factors such as “whether the seizure brought about police observation of the particular object which they sought consent to search, … whether the consent was volunteered rather than requested by the detaining officers, whether the arrestee was made fully aware of the fact that he could decline to consent and thus prevent an immediate search of the car or residence, whether there has been a significant intervening event such as presentation of the arrestee to a judicial officer, and whether the police purpose underlying the illegality was to obtain the consent” (footnotes omitted)). Moreover, we will not allow a factor-based analysis to obscure the underlying question, which “generally involves a pragmatic evaluation of the extent to which the illegal police conduct caused the defendant’s response.” United States v. Bailey, 691 F.2d 1009, 1013 (11th Cir. 1982). Nevertheless, the factors do provide a useful structure. Applied here, they yield the conclusion that this search was consonant with the Fourth Amendment.

The government moved to dismiss a motion to suppress on standing grounds. Defendant who was half owner of car and a passenger in it had standing to challenge its search. He was on parole, and that issue will be resolved at the next hearing: was the parole search reasonable. United States v. Stanley, 2007 U.S. Dist. LEXIS 73443 (D. Colo. October 2, 2007).*

Plaintiff stated a claim that his stopping and ticketing was based on political motives and lacked probable cause. Gullick v. Ott, 517 F. Supp. 2d 1063 (W.D. Wis. 2007). This is a fascinating opinion, and this is just a tiny part of it:

As a general proposition, the court of appeals has rejected defendant’s argument. Generally, it makes no difference whether the defendant could have taken an adverse action against the plaintiff for a legitimate reason. If the actual reason was the plaintiff’s exercise of a constitutional right, the defendant may be held liable for retaliation under § 1983. Vukadinovich v. Board of School Trustees of North Newton School Corp., 278 F.3d 693, 699 (7th Cir. 2002). See also Crawford-El v. Britton, 523 U.S. 574, 577, 594 (1998) (in First Amendment retaliation case, rejecting “proposal to immunize all officials whose conduct is ‘objectively valid,’ regardless of improper intent”); Balderston v. Fairbanks Morse Engine Division of Coltec Industries, 328 F.3d 309, 323 (7th Cir. 2003) (in discrimination case, refusing to consider alleged deficiencies of plaintiff when there was no evidence that those deficiencies actually influenced decision maker in terminating plaintiff).

As will be discussed further below, in almost every case involving retaliation, the defendant advances an objective reason for taking the adverse action against the plaintiff. Never has the court of appeals suggested that a defendant may avoid liability simply by identifying a theoretical justification for his conduct. Even in the prison context, where First Amendment rights are at their weakest, the court of appeals has made it clear that motive matters. E.g., Hasan v. United States Dept. of Labor, 400 F.3d 1001, 1006 (7th Cir. 2005). In other words, an official may not take refuge in a pretextual justification that in fact had nothing to do with his actions.

On its face, this rule makes perfect sense. If probable cause acts as an absolute bar for any retaliation claim against a police officer, this would provide immunity for even the most egregious examples of selective enforcement. And yet, more than 120 years ago, the Supreme Court held that even a statute that is valid on its face may not stand if it is enforced in a discriminatory fashion. Yick Wo v. Hopkins, 118 U.S. 356 (1886). Thus, the consequences of accepting defendant’s argument are troubling because it would permit unethical officers to target their enemies or critics with a litany of citations for petty violations that would be ignored if committed by anyone else. Mark A. Edwards, Law and the Parameters of Acceptable Deviance, 97 J. Crim. L. & Criminology 49, 87 (Fall 2006) (arguing that risk of selective enforcement is greatest when conduct is “formally illegal” but within zone of “acceptable deviance,” such as driving several miles an hour over speed limit). If, as the Court has observed, “the Constitution prohibits selective enforcement of the law based on considerations such as race,” Whren v. United States, 517 U.S. 806, 813 (1996), it follows that the Constitution equally prohibits selective enforcement because of an exercise of a constitutional right.

Defendant could not complain that a witness told of conversations between her and the defendant over the jail telephone which led to obtaining the jail tapes. Also, the court assumed he had standing to challenge a search of his girlfriend’s apartment which he was a casual visitor to, but she clearly consented. [He clearly did not have standing.] United States v. Plummer, 2007 U.S. Dist. LEXIS 75258 (W.D. Pa. October 10, 2007).*

Immigration checkpoint stop quickly turned into reasonable suspicion. The first part of the stop lasted only 60-90 seconds. United States v. Hinojosa-Echavarria, 250 Fed. Appx. 109 (5th Cir. 2007)* (unpublished).

Defendant’s arrest led to a spontaneous admission and officers observing a blood trail in his apartment. Defense counsel was not ineffective for not challenging a futile motion to suppress. United States ex rel. Brown v. McCann, 2007 U.S. Dist. LEXIS 74927 (N.D. Ill. October 5, 2007).*

Upon seeing the police, defendant shook hands with the people in the group he was talking to and walked away. This is hardly suspicious behavior and does not amount to flight. This conduct, as testified to by the police, is not objectively reasonable suspicion. United States v. McCrae, 2008 U.S. Dist. LEXIS 2314 (E.D. N.Y. January 11, 2008)*:

While flight upon seeing police officers can give rise to reasonable suspicion if it occurs in a high-crime area, see Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“Headlong flight … is the consummate act of evasion”), it is clear, and I find, that McCrae’s behavior fell well short of this threshold, cf. id. at 125 (“‘[R]efusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.'” (quoting Bostick, 501 U.S. at 437)). Far from running headlong, McCrae calmly walked away from Daughtry, shaking hands with the people he was standing with before leaving and at no time quickening his pace.

Mental health seizure is based on probable cause to believe the person is a danger to self or others, and “[j]ust as actual innocence will not render invalid an arrest that is properly based upon probable cause that criminal activity was occurring, a mental health seizure can rest upon probable cause even when the person seized does not actually suffer from a dangerous mental condition. … Courts evaluate the existence of probable cause from the perspective of a reasonable and objective person in the position of the seizing official. … ‘If the circumstances, viewed objectively, support a finding of probable cause [then] the arresting officer’s actual motives are irrelevant.'” (citations omitted) Ziegler v. Aukerman, 512 F.3d 777, 2008 FED App. 0021P (6th Cir. 2008).*

Even assuming a violation of the Fourteenth Amendment for a selective enforcement stop, the exclusionary rule would not apply to it. United States v. Nichols, 512 F.3d 789, 2008 FED App. 0026P (6th Cir. 2008):

Even if the Fourth Amendment were implicated [in Whren], any challenge to a search or seizure based on legitimate probable cause, but in which it is alleged the officer’s subjective motive was discriminatory, is doomed to fail. See Whren, 517 U.S. at 813 (unanimously rejecting such a challenge and holding that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”). Though the Court left open the door to equal protection challenges in the same context, it gave no hint as to what the appropriate remedy would be. See ibid. Since we know from Whren that the evidence against Nichols would not be suppressed under the Fourth Amendment (even if the officers were improperly motivated by race), we are reluctant to graft that Amendment’s traditional remedy into the equal protection context. Indeed, we are aware of no court that has ever applied the exclusionary rule for a violation of the Fourteenth Amendment’s Equal Protection Clause and we decline Nichols’s invitation to do so here. Rather, we believe the proper remedy for any alleged violation is a 42 U.S.C. § 1983 action against the offending officers. See, e.g., Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523 (6th Cir. 2002) (rejecting officer’s qualified immunity defense and affirming partial summary judgment in favor of Hispanic motorists who brought equal protection challenge under § 1983).

The legislature has determined that possession of small quantities of marijuana is a “low social and health hazard” so the mere smell of marijuana found by police during response to a noise complaint is not exigent circumstances. People v. Hua, 158 Cal. App. 4th 1027, 70 Cal. Rptr. 3d 559 (1st Dist. 2008):

Possession of less than 28.5 grams of marijuana is a misdemeanor punishable by a fine of no more than $ 100, which is less than the punishment imposed by Wisconsin in Welsh. Relying on the line clearly drawn between jailable and nonjailable offenses in McArthur and Thompson, we conclude that the crime observed by the Pacifica police officers cannot support a warrantless entry, based on exigent circumstances.

This conclusion is confirmed by certain policy factors considered during the enactment of Senate Bill No. 95, which amended Health and Safety Code section 11357, subdivision (b), to reduce the penalties for simple possession of marijuana. For example, in its analysis, the State Office of Narcotics and Drug Abuse recited as reasons for the amendment: (1) “[U]se of a substance with a comparatively low health and social hazard such as marijuana does not warrant jail or imprisonment;” and (2) “The [personnel] and dollar costs of enforcing present marijuana laws could be better spent for other, more beneficial social purpose.” (State Off. of Narcotics and Drug Abuse, Enrolled Bill Rep. on Sen. Bill No. 95 (1975–1976 Reg. Sess.) July 1, 1975, p. 3.)

The minor nature of this crime is also revealed in its treatment of repeat offenders. If a person who possesses less than 28.5 grams of marijuana “has been previously convicted three or more times of an offense described in this subdivision during the two-year period immediately preceding the date of commission of the violation to be charged” the person must be placed in a drug diversion program pursuant to Penal Code sections 1000.1 and 1000.2. (Health & Saf. Code, § 11357, subd. (b).) And, if not accepted into a diversion program, the person shall be subject to the $ 100 fine. (Ibid.) In addition, a person arrested for a violation of this subdivision is to be cited and released “and shall not be subject to booking.” (Ibid.) This mandatory citation-only procedure appears to be unique among misdemeanor offenses. Finally, the preservation of the records of arrest and conviction for this offense is limited. Health and Safety Code section 11361.5, subdivision (a), expressly provides that records “pertaining to the arrest or conviction of any person for a violation of subdivision (b), (c), (d), or (e) of Section 11357 … shall not be kept beyond two years from the date of the conviction … .”

Plaintiff’s arrest was justified when she made a sarcastic comment about a bomb in her bag after she was bumped from a flight because of her late check-in when she was trying to retrieve her bags. (Apparently plaintiff, a lawyer, did not respond well to stress. “The parties submitted expert psychiatric testimony explaining that plaintiff becomes sarcastic under stress.”) She was strip searched at the jail when booked in. Levin v. United Airlines, 158 Cal. App. 4th 1002, 70 Cal. Rptr. 3d 535 (2d Dist. 2008).*

Defendant was stopped entering a military base which was conducting intense searches for incoming guns and drugs. She did not contest the search, and she was clearly not free to leave when she was asked about a shirt in the car, unMirandized. The motion to suppress is granted. United States v. Hayes, 2007 U.S. Dist. LEXIS 95571 (D. Kan. December 18, 2007):

… In this case, there is a specific question directed to both the driver and the passenger pertaining to the ownership of the shirt in which the officer had already found what she believed to be unlawful controlled substances. Clearly the officer knew that this question was likely to elicit an incriminating response from one of the two individuals in custody.

For the above reasons, the Court concludes that Defendant was in custody for purpose of Miranda at the time she was questioned about ownership of the shirt, and that the questions directed to her were an interrogation designed to establish ownership of the shirt, and therefore possession of the controlled substances found “in” the shirt. Because Defendant was not given the required Miranda warnings prior to her questioning, Defendant’s motion to suppress is granted.

Officer had reasonable suspicion based on anonymous 911 call about a break-in when he saw three men who matched the description and they were the only persons on the street at that late hour, and defendant ran when the officer approached. United States v. Ross, 2007 U.S. Dist. LEXIS 95611 (N.D. Ohio December 26, 2007).*

True exigency for a meth lab search without a warrant must be more than just concern for the officer’s safety, which is all they showed here. State v. Leffler, 142 Wn. App. 175, 173 P.3d 293 (2007):

In sum, the emergency exception only applies where there is an imminent threat of substantial injury to persons or property. The evidence demonstrates no such threat here. The initial response team was clearly concerned for their own safety, but that is insufficient to justify a warrantless search under the emergency exception.

Deputy Greger testified that none of the officers entered any of the buildings on the premises before the Team wearing protective gear. Additionally, Deputy Clark testified that had there been an ongoing chemical reaction, he believed that the resulting fumes would have been a danger to the surrounding area. He also pointed out that he had seen such reactions explode, but he did not testify as to the imminence of this danger.

Indiana officers had reasonable suspicion of drug trafficking for trash pulls occurring before Litchfield‘s new trash pull standard was decided, and they were not required to exhaust innocent explanations as a part of reasonable suspicion. Turner v. State, 878 N.E.2d 286 (Ind. App. 2007).*

Defendant’s traffic stop was valid and the lack of driver’s license and other factors indicated reasonable suspicion. State v. Ramsey, 2007 Ohio 6687, 2007 Ohio App. LEXIS 5863 (9th Dist. December 17, 2007).*

Glove compartment was validly searched under search incident. (Defendant also did not provide a transcript of the suppression hearing for appeal, so this was based on the trial record.) State v. Pirpich, 2007 Ohio 6745, 2007 Ohio App. LEXIS 5907 (12th Dist. December 17, 2007).*

Plain feel told officer that a baggie of crack was in defendant’s pocket, and that justified a seizure. State v. Dunson, 2007 Ohio 6681, 2007 Ohio App. LEXIS 5851 (2d Dist. December 14, 2007).*

The question is close, but the court finds that the officer did not unduly extend the stop. This led to a warning from the appellate court. State v. Henry, 2007 Ohio 6732, 2007 Ohio App. LEXIS 5904 (11th Dist. December 14, 2007):

[*P44] Nevertheless, we would be remiss if we did not take this opportunity to remind law enforcement officers of the dangers of engaging in a pretextual stop in which a traffic citation is issued in a dilatory manner. The circumstances of this case present a perilously close set of facts, and we must always be mindful that “[t]he liberties of the American citizen depend upon the existence of established and known rules of law limiting the authority and discretion of men wielding the power of government.” Perry & Cooper, Sources of Our Liberties, (Chicago: American Bar Association, 1959), at 1.

During a search of a home, defendant disclaimed ownership of a suitcase found inside, and it was not an abandonment as a matter of law. Here, the trial court erred in finding abandonment because the expectation of privacy was so high. Commonwealth v. Augello, 71 Mass. App. Ct. 105, 879 N.E.2d 709 (2008):

In essence, the Commonwealth takes the position in this case that an oral disclaimer of ownership is dispositive on the issue of abandonment as a matter of law. We disagree, and the case law states otherwise.fn6 See Commonwealth v. Paszko, supra; Commonwealth v. Straw, supra. Here, as already noted, the place where the suitcase was found was the defendants’ apartment, and the items were in a closed container and not in plain view. Thus, the location was subject to the highest constitutional protection and the expectation of privacy without question legitimate. In short, the objective facts and the actions of the defendants in locating the objects belie any intent to abandon the objects. These factors must be taken into account along with the words of the defendants in determining intent. See Commonwealth v. Paszko, supra.

6. As a general matter, we are not prepared to say that, as matter of law, disclaiming ownership in property always negates any possibility of thereafter asserting a privacy interest with respect to that property. The question whether a reasonable expectation of privacy exists in any particular case is necessarily fact-dependent and must take into consideration all of the attendant circumstances. If any one factor does predominate, it is not what a defendant says about his relation to seized property, but rather the place in which the property is found and the defendant’s relation to that place. See Commonwealth v. Montanez, 410 Mass. at 301; Commonwealth v. Straw, 422 Mass. at 758-762. As the motion judge found here, there may be good reason to discredit a disclaimer of ownership where to assert the contrary would be strongly inculpatory.

We note, in addition, that we also arguably rejected the Commonwealth’s position that words alone determine the issue in Commonwealth v. Small, 28 Mass. App. Ct. 533, 536 (1990). In Small, police officers, acting on a tip, searched the defendant’s checked airline luggage without a warrant and discovered a cache of illegal drugs. When the defendant subsequently claimed his suitcases, officers confronted him. He dropped the bags and denied they were his. In justifying the search, the Commonwealth claimed in effect that the defendant had abandoned the bags. The court rejected the claim of abandonment based upon the defendant’s dropping of the bags and disclaimer of ownership, because the search had preceded the alleged abandonment; the court also indicated that a “verbal disclaimer” standing alone would not support an inference of abandonment absent “other acts by the defendant to support an inference of disclaimer or abandonment.” Id. at 536.

This view that a mere verbal disclaimer is insufficient to constitute abandonment for Fourth Amendment purposes has wide support in the law of other jurisdictions. …

Accord: United States v. Curry, 2008 U.S. Dist. LEXIS 5438 (D. Me. January 23, 2008), posted today above, finding no abandonment where the disclaimer of ownership came after the search.

While the court is convinced that the stop was pretextual but with a factual basis, the Fourth Amendment provides no protection. United States v. Kellam, 2008 U.S. Dist. LEXIS 14164 (D. Del. February 26, 2008):

In the Court’s opinion, the vehicle being driven by the Government’s Informant was stopped because the Task Force officers believed Mr. Kellam had engaged in some activity related to drug trafficking during the trip to New York. The Court is convinced that the violations asserted as grounds for the stop of the vehicle existed, but the vehicle was stopped so as to permit the officers to search the vehicle for evidence of drug trafficking offenses Mr. Kellam was suspected of committing.

Because the existing case law does not allow the Court to consider subjective or pretextual reasons for a Terry stop, Mr. Kellam’s Motion must be denied.

“‘[A] damages claim that “necessarily demonstrates the invalidity of [a] conviction,” may not be brought while the conviction stands.’ Gonzalez v. Entress, 133 F.3d 551, 553 (7th Cir. 1998) (citing Heck, 512 U.S. at 481-82).” White v. Madison County, 2008 U.S. Dist. LEXIS 14145 (S.D. Ill. February 26, 2008).*

Younger bars litigating a search issue in federal court that is already pending in state court. Palacios v. City of Chicago, 2008 U.S. Dist. LEXIS 13985 (N.D. Ill. February 20, 2008).*

In the Washington Post last week: Bill Would Require Some to Pass Drug Test to Get Aid:

Some welfare applicants and beneficiaries would be required to pass a drug test and receive counseling to receive public assistance under a controversial bill being considered by the Virginia General Assembly.

Under the proposal, which has been approved by the Senate, people applying for or in the state’s job-training program, which is required to receive welfare, would be questioned about substance abuse. Those thought to be abusing drugs could be required to take a drug test.

. . .

Several states, including Arizona and Kentucky, have moved recently to restrict the benefits of those who test positive for drugs, said Elizabeth Lower-Basch, a senior policy analyst for the Center for Law and Social Policy, a Washington-based think tank. An effort to randomly test all Michigan welfare recipients for drugs was ruled unconstitutional five years ago.

Linda Greenhouse To Take N.Y. Times Buyout, on ABAJournal.com today. She won the Pulitizer Prize for reporting about the Court. See AP, too.

Her book Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey is marvelous, and poignant.

SCOTUS granted cert today in Arizona v. Gant, 07-542, a search incident case where the Arizona Supreme Court held that Gant was not a “recent occupant” when he was locked up and in a police car at the time of the search incident.

From SCOTUSBlog:

In the police search case (Gant), the Court said its review would be limited to the following issue: “Does the Fourth Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless search incident to arrest conducted after the vehicle’s recent occupants have been arrested and secured?” The state of Arizona contended in its appeal that the Arizona Supreme Court had undercut the Supreme Court’s 1981 decision in New York v. Belton, which the state said laid down a bright-line rule allowing police to search a vehicle without a warrant following an arrest of the occupant.

Also from SCOTUSBlog, the cert petition is here and the brief in opposition is here.

Comment and Update: I have always viewed Belton as a bright-line rule with such unique facts that it was a bad case for adoption of such a rule. The NY Times on Tuesday tucked Gant into a story about Monday’s oral arguments with not much of an explanation. Thornton was better on the facts, and then the court wrote a sloppy opinion leaving a vagary that gives the defense plenty to argue, but no guidance to the courts or the police, which pretty much ignored it. Ever since studying criminal procedure in law school, it was obvious to me that search incident has been a justification in search of a rationale with cases all over the lot. See Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring): “The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth.” So, Gant can shape up to be a better vehicle for resolving search incident cases, and we can expect it to favor the government, and Arizona will get the case back and follow the original decision under state law.

Defendant showed that omissions were made from the officer’s affidavit for the search warrant, but defendant failed to show that they were material under Franks. United States v. Jebory, 2008 U.S. Dist. LEXIS 11723 (D. Minn. February 14, 2008):

Second, the Court comments on Agent Robinson’s reference to Ismail as a first-time citizen informant and the Agent’s omission of Ismail’s criminal background, previous drug dealings, and payment arrangement. Agent Robinson referenced Ismail as a first-time citizen informant after observing Ismail deliver drugs during two controlled buys. In addition, Agent Robinson failed to include certain details regarding Ismail’s criminal record, previous drug dealings, and payment arrangement. The characterization of Ismail as a first-time informant was misleading and the Court rejects Agent Robinson’s contention that he so described Ismail for Ismail’s protection. In addition, the Court is troubled by the omission of Ismail’s criminal record, previous drug dealings, and payment arrangement. However, the Court agrees with the Magistrate Judge that the misleading representation and omissions were not clearly critical to the finding of probable cause and therefore did not rise to the level of a Franks violation.

Three month old information was not stale in child porn case involving downloading of 247 images. United States v. Tanner, 2008 U.S. Dist. LEXIS 11641 (W.D. Ky. February 14, 2008).*

Defendant’s wife had a friend remove the hard drive from her husband’s computer after he told her he was gay and moving out and in with a man. She turned it over to the police when it was found to have child porn, and it was found by a private search. United States v. Crewe, 2008 U.S. Dist. LEXIS 11654 (E.D. Wis. February 4, 2008).*

Video surveillance of defendant’s premises from a telephone pole across the street did not implicate any Fourth Amendment interest. United States v. Urbina, 2007 U.S. Dist. LEXIS 96345 (E.D. Wis. November 6, 2007). Noting that this was an issue of first impression in the Seventh Circuit, after surveying numerous cases, the court finds no Fourth Amendment interest involved here.

There are many legitimate reasons for this court and the general public to be concerned about indiscriminate law enforcement video surveillance, particularly if it is aimed at private homes. Turning to the specific facts of this case, those valid privacy concerns are not implicated. The court finds that the fact that law enforcement chose to install a surveillance camera, as opposed to utilizing more traditional surveillance techniques, does not change the result from a Fourth Amendment perspective. Unlike the surveillance in Cuevas-Sanchez, the agents in the present case were not surveilling anything that was not otherwise visible using traditional street-level surveillance techniques. Here, the camera which was installed on a utility pole, was unable to view any area where a person may have a reasonable expectation of privacy. Certainly, video cameras installed upon utility poles have the potential to invade a person’s reasonable expectation of privacy, as the facts in Cuevas-Sanchez demonstrate, but that was not the situation in the present case. The video camera captured nothing more than persons coming and going from the defendant’s residence who were otherwise exposed to public view. As such, Brijido Aguilera had no reasonable expectation of privacy in the end of his driveway, and thus the Fourth Amendment was not implicated by the agents’ surveillance. Therefore, the court shall recommend that Brijido Aguilera’s motion to suppress, (Docket No. 278), be denied.

Officer was justified by exigent circumstances in shining a flashlight into defendant’s window looking for him after finding his car with blood in it after an accident and nobody was with the car. The officer went to the house of the registered owner looking for the driver. State v. Simpson, 2008 Ohio 632, 2008 Ohio App. LEXIS 563 (5th Dist. February 13, 2008).*

“Defendant attempts to refute the facts found by the trial court that tend to support a finding of reasonable suspicion, to wit: (1) proximity to the alleged burglary; (2) time of day; and (3) the absence of any other persons in the area.” Facts are not taken in isolation. Proximity is relative: here, there was nobody else within half a mile of the scene of an immediate burglary call at night, and that supported reasonable suspicion. State v. Campbell, 2008 N.C. App. LEXIS 280 (February 19, 2008).*

Weaving is indicative of either being fatigued or intoxicated, and either justifies a stop. State v. Andrews, 2008 Ohio 625, 2008 Ohio App. LEXIS 556 (3d Dist. February 19, 2008).*

Defendant revoked his consent to the search and seizure of his computer, and he merely acquiesced in officers taking his computer anyway. However, the trial judge did not err in denying the motion to suppress because the child porn on his computer would have been inevitably found by a search warrant. United States v. Wallace, 2008 CAAF LEXIS 226 (C.A. A.F. February 13, 2008):

In this case, the images of child pornography on Appellant’s computer hard drive would similarly have inevitably been discovered. As the military judge correctly concluded, had Appellant not ultimately consented to the seizure of the computer, the AFOSI investigators would have sought and obtained a search authorization based on probable cause. After all, during his interrogation, Appellant admitted to a sexual relationship with a young girl with whom he communicated mostly via e-mail and instant messenger. This alone encouraged investigators to focus on the computer as a source of evidence and created sufficient probable cause to allow AFOSI to obtain an authorization to search for, and seize e-mails and messages between Appellant and TND. Though the authorization would have been limited to e-mails and messages, one of the AFOSI investigators testified that the forensic software employed would have skimmed the computer’s hard drive, recovering all saved data. As the military judge concluded, investigators would have had to sift through all the captured data to find relevant e-mail traffic. As such, the files containing child pornography would have been inevitably discovered through this valid search. It should also be noted that although we have ultimately concluded that the initial consent to seize had been terminated as a matter of law, the fact that the law enforcement officers proceeded on the belief that they had consent underscores that this is not a case involving a deliberate intent to evade the warrant requirement.

Defendant was in a VA hospital for treatment for diabetes, and he was a suspect in a rape. Defendant was subject to blood draws for treatment, and NCIS requested an additional blood draw for criminal purposes. That search violated the Fourth Amendment and M.R.E. 312(f) because it was not for military preparedness. United States v. Stevenson, 2008 CAAF LEXIS 230 (C.A. A.F. February 14, 2008):

In fairness to the military judge, the lower court and the parties, the clarity of this conclusion was not forecast by this Court’s discussion of Fitten in Stevenson II. In Fitten, the appellant–admitted to the emergency room because of erratic behavior apparently due to drug use–underwent an involuntary catheterization in order to determine the cause of his condition, so as to inform subsequent treatment. 42 M.J. at 180. The appellant’s command requested that, during the procedure, an additional sample of the urine be collected, and given to the command. Id. This Court upheld the admission of the urine test under M.R.E. 312, finding among other things that the catheterization caused only a de minimis intrusion, which did not “shock the conscience.” Id. at 182. The de minimis nature of the search was one of a totality of circumstances relied on by the Court. Id. However, in Stevenson II the de minimis nature of the search was referenced as the conclusion of the Court. 53 M.J. at 260. In turn, the Court of Criminal Appeals on remand referred to this conclusion as the holding in Fitten. Stevenson II, 65 M.J. at 644-45.

However, while the degree of an intrusion may inform whether an objectively reasonable expectation of privacy exists, the Supreme Court has not adopted a de minimis exception to the Fourth Amendment’s warrant requirement. To the contrary, the Supreme Court has held that the need for a warrant is not relieved by the use of advanced search methods that are imperceptible to the subject of the search. See, e.g., Kyllo v. United States, 533 U.S. 27, 34, 40 (2001) (the use of infrared cameras to determine the heat of a house where federal agents suspected marijuana was being grown). Thus, to the extent that Fitten and Stevenson II stand for the proposition that there is a de minimis exception to the Fourth Amendment or to M.R.E. 312, they are overruled.

The Fourth Amendment problem in this case was that the vial of blood taken from Appellant and provided to NCIS represented a distinct search and seizure from that undertaken incident to Appellant’s treatment for diabetes. Whatever might be said of Appellant’s expectation of privacy with regard to the blood draw itself, a search for DNA was not incident to his treatment for diabetes and was not otherwise authorized by warrant or warrant exception.

Note: This is the first noteworthy military search case in a while, and the military courts often have studious and interesting opinions. Later today, we’ll add the military courts to the links on the right side. Say what you will about military justice,* my one experience in a court martial was great because the trial judge was one of the best I have ever seen, and the prosecutor was consummately professional.

* “Military justice is to justice what military music is to music.”
— Groucho Marx

SCOTUSblog lists Arizona v. Gant, conferenced Friday, as a “cert petition to watch.” Gant is posted here on this website. The opinion below is here.

The question presented from the cert petition:

In New York v. Belton, 453 U.S. 454 (1981), this Court held that the risks to officer safety and to the preservation of evidence inherent in the arrest of a vehicle’s recent occupant justify a contemporaneous warrantless search of the automobile’s passenger compartment incident to the arrest. The question presented is:

Did the Arizona Supreme Court effectively “overrule” this Court’s bright-line rule in Belton by requiring in each case that the State prove after the fact that those inherent dangers actually existed at the time of the search?

The Arizona court held that Gant was not a “recent occupant” under Thornton because he was handcuffed and in a police car.

(Note: This was carried over from Saturday to Sunday to Monday to stay at the top.)

Defendant had no standing to contest a search of an apartment that he walked into when he saw a police car in the apartment complex. He was outside having his hair braided when he abruptly went inside. Neither of the occupants admitted to knowing him, and one consented to a search of the premises for drugs. He had no expectation of privacy in the premises, and there was reasonable suspicion for his search based on his conduct. United States v. Frazier, 249 Fed. Appx. 396, 2007 FED App. 0699N (6th Cir. 2007) (unpublished):

Mallery also had reasonable suspicion to search Frazier for weapons based upon the totality of the circumstances. As the district court found, Frazier was in an area known for drug trafficking, and he showed an intent to evade police, a belief confirmed by the owner of the apartment. See Illinois v. Wardlow, 528 U.S. 119, 123-25, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (holding that an individual’s presence in a high crime area, when coupled with unprovoked flight and nervousness, viewed together, gave officers reasonable suspicion). Furthermore, once inside the apartment, Mallery observed that Frazier was not in the bathroom, but sitting on a couch in the living room, acting nervous. And as the district court further found, Mallery observed in plain view a set of digital scales, which, like firearms, this Court has long recognized as tools of the drug trade. See United States v. Marino, 658 F.2d 1120, 1123 (6th Cir. 1981); …. For this reason, it was also reasonable for Mallery to believe Frazier might be armed. See United States v. Bohannon, 225 F.3d 615, 617-18 (6th Cir. 2000) (holding that it was reasonable for officers to believe that the suspect was armed and dangerous given his apparent familiarity with a residence suspected of being a laboratory for an illegal drug operation). Although Frazier disputes this version of events, we cannot say that the district court’s factual findings were clearly erroneous.

Probable cause existed for plaintiff’s arrest. The affidavit was also run by an assistant prosecutor before it was approved [incidentally, what happened in Leon]. The alleged falsity in the affidavit, if disregarded, still left sufficient probable cause for arrest. Cummisky v. Mines, 2007 U.S. App. LEXIS 22983 (10th Cir. September 28, 2007).*

Complaint about an illegal arrest must explain the status of the arrest as a criminal case because of abstention from getting involved in criminal cases (Younger) or closed criminal cases (Heck). On its own, the court finds a pending criminal case on the local court website. Larry v. McKeithen, 2007 U.S. Dist. LEXIS 72676 (N.D. Fla. September 28, 2007).*