911 call of man with a gun in an argument with a woman required an immediate response, and the officer arrived at the scene finding people matching the description, and that justified action. United States v. Wooden, 2007 U.S. Dist. LEXIS 96208 (N.D. Ind. November 28, 2007):

This 911 caller reported an emergency situation — an argument between a man armed with a gun and a woman, which was taking place in a high-crime area of South Bend. Although the caller didn’t disclose his name, Officers Reynolds and Gibbons promptly responded, confirmed that there was a pay phone within an area where the caller could have observed the man and woman walking towards the 7-11 Store, and observed a man and a woman matching the description provided by the caller in the area described by the caller. Where, as here, a 911 call reports an immediate threat to public safety and provides sufficient details to enable officers to identify the suspects, the court may “presume the reliability” of an eyewitness 911 call for purposes of establishing reasonable suspicion for the police to make a proper stop. “Requiring further indicia of reliability would only jeopardize the usefulness of the 911 system and the ability of officers to prevent further danger to the public.” United States v. Drake, 456 F.3d 771, 775 (7th Cir. 2006).

Officer had not stopped the defendant when he parked near defendant’s car on a parking lot, without lights, and approached defendant’s car to talk to him. At the car, he observed indicia of drug use in plain view, and the rest was justified. United States v. Mays, 2008 U.S. Dist. LEXIS 9202 (N.D. Cal. January 9, 2008).*

The officer saw a car in the parking lot of a school in the early morning hours, and he pulled into the lot, too. The car moved to another, smaller light, and was cornered, and the officer pulled in behind it. He questioned the occupants, and asked about whether they had drugs in the car, with no justification whatsoever, just to see how they answered. One did, and defendant didn’t. Based on the lack of an answer, the officer searched, and it was completely without cause. State v. Rackow, 2008 Ohio 507, 2008 Ohio App. LEXIS 432 (9th Dist. February 11, 2008):

[*P15] In this case, the officer reacted to a suspicion that was aroused only by the fact that Mr. Rackow did not immediately deny having anything illegal in his possession. The officer admitted he had seen nothing suspicious since approaching the vehicle and he had dispelled any suspicion created by the initial report of a car in the school parking lot. The officer never testified that he was concerned about weapons or any threat to his own safety. In fact, he testified that the men in the car did not look dangerous. The officer asked about drugs, “just to see how they would answer” and continued the inquiry directly with Mr. Rackow only because of Mr. Rackow’s failure to immediately answer the question. The officer turned directly toward Mr. Rackow for the first time, shined his flashlight into his face, and asked him: “If I search you, will I find anything illegal?” The form of the question implied that it was the officer who would decide whether Mr. Rackow would be searched. The officer asked: “If I search you, will I find …?” This choice of words by the officer indicated that “compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). Mr. Rackow had already failed to answer the question aimed at the group and, in response, the officer had focused his attention, his flashlight, and his question, directly at him alone. The reasonable person in Mr. Rackow’s position would not feel free to walk away from the officer at that point. Id. Mr. Rackow was sitting in the back seat of a car that was not able to move. Even if the driver had been willing to drive away while the officer was questioning Mr. Rackow, the police cruiser was parked so as to block the car. The interior of the car was lit by the large overhead spotlight the officer trained on the vehicle before approaching it. And the officer was shining a flashlight directly into Mr. Rackow’s face and directing his question at Mr. Rackow specifically. The encounter became an illegal seizure at the moment the officer directly asked Mr. Rackow the question about illegal contraband.

Defendant’s vehicle was going to be impounded because of his lack of driver’s license, and the search of the vehicle was related to that purpose. State v. O’Neal, 2008 Ohio 512, 2008 Ohio App. LEXIS 458 (3d Dist. February 11, 2008). (Comment: There was no claim here that the search did not follow inventory justification for procedures, so that was not addressed.)

The trial court found that the officer had cause for the stop of defendant’s car for a license plate being either excessively dirty or the bulb being out, and that was probable cause for the stop which survives appellate scrutiny. The argument that the police car’s video did not help one way or the other really did not matter. State v. Numbers, 2008 Ohio 513, 2008 Ohio App. LEXIS 447 (3d Dist. February 11, 2008).*

Pro se appellant, whose “brief is often difficult to follow” cited no cases in support of his 14 arguments in five pages. He claimed that the seizure of a credit card receipt from the victim violated the Fourth Amendment, but he obviously had no standing to raise that argument. City of Platteville v. Ambort, 2008 Wisc. App. LEXIS 110 (February 7, 2008).* (Ambort is a frequent filer; 12 hits for him on the Wisconsin appellate website.)

In the next step to eliminating all vestiges of privacy in America, in an effort to create “One Nation, Under Surveillance,” the FBI wants palm prints, eye scans, tattoo mapping, on CNN.com, not just fingerprints. The government is seeking a $1B contract for the database, and it is not limited to criminals. It could be done to anybody in the system for any reason: Bar examination? Airport employee? A carry permit? See the FBI Agent’s interview here.

The next step will be collection of DNA and brain scans.

Resisting arrest conviction does not collaterally estop an excessive force claim. Lamond v. Maher, 2008 U.S. Dist. LEXIS 9078 n. 1 (S.D. Ind. February 5, 2008):

The defendants also argue that Lamond is collaterally estopped by the outcome of the criminal prosecution–the outcome being that Lamond was convicted based on his plea of guilty–from pressing his civil rights claims here. There is a body of law that addresses how a court in a civil suit is to treat a criminal conviction where the use of excessive force by police officers could have been a defense to a charge of resisting law enforcement. This principle cannot be applied conclusively here, however, for even if a jury had convicted Lamond this would not automatically bar a claim of excessive force in a subsequent civil action. See Hernandez v. City of Los Angeles, 624 F.2d 935, 937-38 (9th Cir. 1980); DuFour-Dowell v. Cogger, 969 F.Supp. 1107, 1117-18 (N.D.Ill. 1997). “Even while resisting an arrest, an arrestee can be subjected to force excessive for the situation.” Id. at 1118. The State’s offer of proof in Lamond’s cases recited Lamond’s actions, not those of any of the police officers. That offer of proof at least does not entirely negate the viability of Lamond’s claims in the present case, and thus the court will not rely on Lamond’s conviction to resolve his claims.

Summary judgment for officer rejected for allegation he entered the wrong residence on a search warrant; the one next door. A reasonable officer would have known. Mendoza v. Whitehouse, 2008 U.S. Dist. LEXIS 8904 (N.D. Cal. January 25, 2008).*

Plaintiff’s losing criminal case where the search in his case was litigated and lost was collateral estoppel, applying Nebraska law to this issue. He argued that the state courts incorrectly decided his claim. James v. City of Omaha, 2008 U.S. Dist. LEXIS 9368 (D. Neb. February 7, 2008):

Based on the foregoing, Plaintiff’s Fourth Amendment claim in this § 1983 action is barred by collateral estoppel. Plaintiff had multiple opportunities at his criminal trial, and in his subsequent civil lawsuit, to litigate the validity of the police officers’ search of his vehicle and seizure of his firearm. After Plaintiff fully litigated the validity of the search and seizure in the criminal proceedings, the county court entered a final judgment in the matter. Plaintiff appealed the county court’s denials of his motions to suppress, and the court’s decisions were not overturned by the appellate courts. Therefore, because Plaintiff’s Fourth Amendment claims were actually litigated and decided on their merits, this subsequent § 1983 action based on those same claims is barred.

Defendant’s claim he could not be speeding because “nobody with drugs in the car would speed” was rejected. “Another problem with the Defendant’s argument is that it is always irrational to commit traffic violations while drugs are in the car, yet this happens all the time. The reporters are filled with such cases.” He argued over what the speed limit was at the spot of the stop, but the officer’s incentive not to lie about what the speed limit is would be the adverse employment consequences. United States v. Moore, 2008 U.S. Dist. LEXIS 9384 (N.D. Ind. February 7, 2008).*

On 2/8 is this post: Customs now entering laptops and cellphones, originating with a Washington Post article. This is being picked up elsewhere on the Internet, and then, today, is a reference to the TSA Blog distancing itself from this story: It’s Customs, not TSA.

Update to the update: The Electronic Frontier Foundation and other civil liberties groups have sued for information from Customs about what they are doing.

We have all heard of backscatter technology, technically known as Z Backscatter, first used at ports and border crossings for essentially x-raying trucks and railroad cars looking for dirty bombs, human cargo, or contraband. But, the manufacturer’s website shows it used for packages and suitcases, “personnel inspection,” and at airport entry points.

Now, instead of a fixed device that something must be run by, the backscatter device can come to you in a van, known as ZBV. The manufacturer even touts its product for drug detection:

A breakthrough in X-ray detection technology, AS&E’s Z Backscatter Van (ZBV) is a low-cost, extremely maneuverable screening system built into a commercially available delivery van. The ZBV allows for immediate deployment in response to security threats, and its high throughput capability facilitates rapid inspections. The system’s unique “drive-by” capability allows one or two operators to conduct X-ray imaging of suspect vehicles and objects while the ZBV drives past.

. . .

The Z Backscatter Van is used in port and border security, force protection, urban surveillance, and other critical security applications. The system is maneuverable, mobile and affordable. Simply put, the ZBV is faster, more effective, and less expensive than any mobile X-ray screening solution in the marketplace today.

The ZBV Reveals Contraband and Threats Undetected by Other Systems:

. Car and truck bombs
. Explosives, plastic weapons, and other organic threats
. Radioactive threats, including nuclear devices and dirty bombs
. Illegal drugs
. Stowaways, such as illegal immigrants and terrorists
. Trade fraud items, such as alcohol, tobacco, and other legal goods smuggled to evade duties

* In Stationary Scan Mode, ZBV operators may elect to scan the occupants of the subject vehicle. For this application, AS&E offers a Personnel Scanning option that may better enable the customer to meet any applicable country-specific regulatory requirements. For more information, please call (978) 262–8832.

At another place on the company’s website, drug detection is listed first:

AS&E’s Cargo and Vehicle inspection systems are engineered to provide security personnel with an effective means of detection without disrupting the flow of commerce.

AS&E uses the most advanced proprietary technologies in the industry to deliver X-ray inspection systems that can detect a multitude of threats and contraband, including:

. Illegal Drugs
. Illegal Immigrants
. Plastic Weapons and Explosives, including car and truck bombs
. Radioactive Threats, including nuclear devices and dirty bombs
. Smuggled goods, such as alcohol, tobacco products, and other legal goods smuggled to evade duties (trade fraud)
. Weapons or other inorganic threats, including metal weapons and shielding to conceal radioactive materials

These systems can inspect cars, vans, and trucks, as well as palletized cargo, and air and sea cargo containers. We offer our systems in a variety of configurations to give customers maximum flexibility, safety, and utility when implementing security solutions.

The cost means that the drug dog will never be replaced. Drug dogs are far easier to use and move around.

Questions immediately arise, and we have to know that law enforcement is already thinking about this: How fast and close must the subject vehicle be moving by (as in a train or tractor trailer) such that the technology must improve to the point that a ZBV van could be parked on a highway or a truck weigh station to scan everything going by? (Trucks creep by at a highway weigh station, so this is already possible, but vehicles likely drive by too fast on a highway to meaningfully register. But what about the future? What about a computer reading the image rather than a person? [This isn’t TSA, you know.])

What about parking in a driveway (a place with a reduced expectation of privacy, but not from this) and scanning a house? How far away is that technology? It would not be useful for small quantities of drugs, but it would for large quantities, or grow operations or meth labs.

If Kyllo applies to thermal images, this is far more intrusive if it ever goes that far. Just look at the human images on the company’s website.

Minor misdemeanor arrest does not justify a search of the person in Ohio. State v. Golly, 2008 Ohio 447, 2008 Ohio App. LEXIS 407 (8th Dist. February 7, 2008):

[*P16] As recognized by one court, “A violation of the open-container statute, R.C. 4301.62, is punishable as a minor misdemeanor. While the protections of the Ohio and the federal constitutions against warrantless and unreasonable seizures and searches are generally coextensive, see State v. Robinette, 80 Ohio St.3d 234, 245, 1997 Ohio 343, 685 N.E.2d 762, in State v. Brown, 99 Ohio St. 3d 323, 2003 Ohio 3931, 792 N.E.2d 175, syllabus, the Ohio Supreme Court held that the Ohio Constitution provides a greater protection than the Fourth Amendment ‘against warrantless arrests for minor misdemeanors.’ Police officers may briefly detain, but may not conduct a custodial arrest, or a search incident to that arrest, for a minor-misdemeanor offense when none of the R.C. 2935.26 exceptions apply. See State v. Brown, at P25. Under the facts of the initial stop, a search of [defendant’s] person was not permissible because none of the statutory exceptions applied.” State v. Riggins, Hamilton App. No. C-030626, 2004 Ohio 4247.

[*P17] Upon the record before us, we do not find any of the exceptions outlined in R.C. 2935.26 existed to justify arresting Golly for the minor misdemeanor offense.

“[*P22] In general, trial counsel’s failure to file a motion to suppress does not per se constitute ineffective assistance of counsel.” Here, it is clear from the record defendant consented so there could be no IAC. State v. Hamilton, 2008 Ohio 455, 2008 Ohio App. LEXIS 413 (8th Dist. February 7, 2008).*

Freezing the premises and a protective sweep pending arrival of a search warrant were valid. Officers found a staircase hidden in a closet, and they went up the stairs and found an open window and things that suggested a gun might have been tossed out the window. Evidence was found outside, and a clip was found in the gutter when the search warrant was executed. United States v. Nguyen, 2008 U.S. Dist. LEXIS 8759 (D. Mass. February 7, 2008).*

N.D. Iowa spends a few paragraphs on probable cause for the place to be searched, and finds that it exists. Turning then to whether the good faith exception applies, the court extensively discusses that and concluded that it would apply, too. United States v. Cote, 2008 U.S. Dist. LEXIS 8860 (N.D. Iowa February 6, 2008). (Comment: Sometimes an elaborate discussion of probable cause is pointless because the question is “fair probability,” which this court found. Also, the court should be credited with resolving the PC question first before going to the good faith exception.)

E.D. N.Y. views a Stone defense to a § 2254 as whether there was “an unconscionable breakdown in the process,” and it found there was not because defendant got his suppression hearing. Hornedo v. Artus, 2008 U.S. Dist. LEXIS 8780 (E.D. N.Y. February 5, 2008).*

An article in yesterday’s Washington Post reveals that Customs is entering citizen’s laptops and cellphones to look for anything that they want. In short, customs searches are no longer confined to luggage, or the person, as the case may be. See Ellen Nakashima, Clarity Sought on Electronics Searches / U.S. Agents Seize Travelers’ Devices:

Nabila Mango, a therapist and a U.S. citizen who has lived in the country since 1965, had just flown in from Jordan last December when, she said, she was detained at customs and her cellphone was taken from her purse. Her daughter, waiting outside San Francisco International Airport, tried repeatedly to call her during the hour and a half she was questioned. But after her phone was returned, Mango saw that records of her daughter’s calls had been erased.

A few months earlier in the same airport, a tech engineer returning from a business trip to London objected when a federal agent asked him to type his password into his laptop computer. “This laptop doesn’t belong to me,” he remembers protesting. “It belongs to my company.” Eventually, he agreed to log on and stood by as the officer copied the Web sites he had visited, said the engineer, a U.S. citizen who spoke on the condition of anonymity for fear of calling attention to himself.

In a rare statement, a U.S. District Court holds that police officers are not universally unbiased witnesses, in the course of finding no probable cause for defendant’s search. United States v. Morse, 2008 U.S. Dist. LEXIS 8485 (E.D. Wis. January 4, 2008):

To the contrary, given human nature, the fact that Cunning had no criminal record and the fact that there is no evidence that Cunning had committed any crime on the evening in question would suggest it to be more likely that Cunning would make certain that he stopped at the intersection, knowing full well that he was being followed by the officers.

As to the government’s contention that as Morse’s friend, Cunning, was a biased witness, the court finds the police officers to have an equal bias in favor of upholding the validity of their stop. Moreover, Cunning had every reason to testify truthfully and not blemish his clean criminal record by risking a charge of perjury or false swearing.

We already see search incident of the contents of cellphones, something that I disagree with, because, once the cellphone is out of the hands of the defendant, there is little that can be done to alter its stored electronic information. Sure, some “early” (pre-2004) phones may have a limited memory for incoming calls (say, 30 numbers), and some later incoming calls may erase the earliest ones in the queue. The police remedy is to turn it off or remove the battery. Then, if there is really probable cause, they can get a search warrant for the contents of the phone. Also, what about a password protected phone? A password protected phone is like a password protected computer, and a search warrant would have to be obtained to get into it. But, case law thus far does not agree with me on access to a cellphone qua cellphone and not small computer.

Technology only expands, and, as it does, cellphones become more like computers, as with the iPhone, Blackberry, and MotoQ, phones that have comparably infinite storage capacity for numbers and text messages and web searching capability. They also have memory cards in an expansion slot for expanding all the memory or downloads, photographs, or anything else the device can do. What about all that information? What about cellphones that are web browsers or small computers? Can a small computer be subject to a search incident? Under the normal rationale, no. But these are not normal times for technology. It is fascinating and scary to consider the ramifications of search incident of the current versions of cellphones.

This is the subject of a forthcoming new article by Prof. Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, available off the SSRN.

The abstract:

Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone’s call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes. This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices.

[Thanks to Prof. Gershowitz for providing a link to the article. SSRN notes over 1,000 downloads of the article.]

Being a probationer alone does not justify a full search of the probationer’s premises without some other justification by regulation or court order. Here, the defendant was arrested and a 45 minute search incident of the entire premises occurred without a warrant. Search suppressed. Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007):

As discussed above, the Supreme Court of the United States has strongly suggested that the Fourth Amendment right not to have one’s home searched without a warrant may only be denied to probationers through a valid law, legally authorized regulation, or sentencing order giving notice of that deprivation of rights. We find such reasoning persuasive because notice is a critical consideration in determining the limits of any reasonable expectation of privacy. The State has pointed out no such law, legally authorized regulation, or sentencing order stripping Jones of his Fourth Amendment right not to have his home searched without a warrant. Accordingly, we hold that Jones’s status as a probationer, standing alone, cannot serve as a substitute for a search warrant.

Exclusionary rule does not apply to a Children in Need of Services petition. The search here was of a digital camera without any apparent reason during a 911 call after a walk through by the police. In re J.V., 875 N.E.2d 395 (Ind. App. 2007).

The affidavit for the search warrant of defendant’s house, as opposed to his office, was stale and it was speculative even as to extending good faith to it. United States v. Paymon, 523 F. Supp. 2d 584 (E.D. Mich. 2007):

The government points to a line of cases that rely on the abstraction that if someone is involved in drug trafficking, there is probable cause to search his residence because drug dealers tend to keep contraband or evidence of crimes in their residence. In Newton, the Sixth Circuit Court of Appeals found that the searches of the defendant’s four listed addresses were supported by probable cause despite the lack of a nexus because detailed evidence of Newton’s drug operations was provided to the state judge. 389 F.3d at 636. In Miggins, the finding of probable cause to search defendant’s actual residence was upheld by the Sixth Circuit even though defendant signed for a controlled shipment of drugs at a separate residence. 302 F.3d at 393. In Jones, the search warrant used to search defendant’s residence was upheld despite the fact that the control buys only took place in the driveway as opposed to inside the house. 159 F.3d at 975. In Caicedo, after being arrested for possessing blocks of cocaine, a search warrant was properly issued to search defendant’s residence despite the fact that there was no evidence linking the residence to drug trafficking. 85 F.3d at 1192-93.

Although it may be argued that the supporting affidavit included detailed evidence involving Paymon’s alleged drug trafficking, there is a key difference between this case and the line of cases cited by the government. In each of the cases, there was direct evidence prior to the search warrants issuing that the suspect was trafficking in drugs that directly led to the defendant’s arrest. In Newton, the defendant was arrested for driving to a rural residence and loading thirty-three bundles of marijuana into his car, afterwards the search took place. In Miggins, the defendant accepted a controlled package of cocaine delivered from a police officer posing as a Federal Express driver. In Jones, the defendant sold drugs to a confidential informant at least six times in the driveway of the residence. In Caicedo, the defendant was arrested after a legal search of his backpack turned up bricks of cocaine.

. . .

Unlike these cases, Paymon was not arrested for drug possession nor was their sufficient evidence to arrest Paymon on drug charges prior to the searches. Moreover, the only evidence contained within the affidavit placing Paymon in the presence of drugs was stale. Had the Government established through fresh evidence that Paymon had direct contact with drug trafficking, the lack of a nexus between his Riverfront Towers and the probability of finding contraband would not be at issue. Here the supporting affidavit was defective because the lack of a nexus was not alleviated by fresh information that Defendant was a drug trafficker. Under the totality of the circumstances test, this Court finds that the affidavit failed to provide a sufficient basis to find probable cause for a warrant to search Paymon’s Riverfront Towers residence.

. . .

Similar to Laughton the application simply listed the address of Paymon’s premises to be searched, a summary of the Special Agent’s professional experience, and the speculation that Paymon used the dock, not even his home, to launch his boat to illegally enter Canada. There is no modicum of evidence to connect the alleged criminal activity described in the affidavit to Paymon’s Riverfront Towers other than mere speculation that Paymon may have used the dock at the apartment complex to make his illegal entries into Canada. The affidavit, although detailed in terms of criminality and connections to the Southfield home, lacked the required nexus between criminality and the Riverfront address to such a degree to make a well trained officer would not be able to objectively and reasonably believe that the warrant was sufficient. Thus, Leon’s good faith exception does not apply.

Pretrial electronic monitoring is not a violation of the Fourth Amendment. United States v. Gardner, 523 F. Supp. 2d 1025 (N.D. Cal. 2007):

In the instant case, the sole condition of electronic monitoring does not implicate any such interest. It does not violate a reasonable expectation of privacy under the Fourth Amendment. Electronic monitoring simply alerts law enforcement officials when Ms. Gardner has traveled 100-300 feet away from her home in violation of her curfew restriction. It does not reveal where she is within the home. The system functions as a virtual monitor standing watch outside of Ms. Gardner’s home to ensure she complies with her curfew. Thus, electronic monitoring itself does not invade Ms. Gardner’s reasonable expectation of privacy since the system monitors only what would be readily observable to the public eye. See United States v. Knotts, 460 U.S. 276, 281-82 (1983) (concluding that no reasonable expectation of privacy exists where a person travels in public); Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Cf. United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) (“[T]here is no reasonable expectation of privacy in the exterior of a car because the exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a search.” (quoting New York v. Class, 475 U.S. 106 (1986))).

Nor does electronic monitoring implicate any identifiable common law right to privacy and thus a fortiori does not establish a liberty interest under Paul. The common law tort of intrusion upon seclusion requires that a plaintiff show an intentional intrusion into the solitude or seclusion of another or his private affairs or concerns that is highly offensive to a reasonable person. Restatement (Second) Torts § 652B (1977). Here, similar to the Fourth Amendment analysis, electronic monitoring would not trigger liability since it only provides information that is readily gleaned by the public eye. See id. cmt. c (“[T]here is no liability … for observing [the plaintiff] or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye.”).

Defendant was taken in, but not arrested, for indecent liberties with a child, and he consented to his car being towed to the police station. After they were there, he was asked for consent to search the car, but he did not want the officers to let his wife know what was in it. The officer assured the defendant he would not tell the wife, so the defendant consented. The consent was valid. Commonwealth v. Wallace, 70 Mass. App. Ct. 757 (2007).*

Police had reasonable suspicion based on defendant’s description, proximity to a robbery call, and then flight when he saw the police. The search of his duffle bag at the time of detention was waived. People v. Quinones, 2007 NY Slip Op 9431, 45 A.D.3d 874, 847 N.Y.S.2d 145 (2d Dept. 2007):

The police had a founded suspicion that criminal activity was afoot when they observed the defendant, who matched the general description of a robbery suspect in a radio call, in the stairwell of the building where the reported robbery occurred …. The defendant’s attempted flight, combined with the temporal proximity between the reported robbery and the officers’ arrival on the scene, gave the police reasonable suspicion to detain the defendant. …

The defendant’s contention that the search of his duffel bag without a warrant constituted an unreasonable search and seizure, was not raised at the suppression hearing, and thus, it is unpreserved for appellate review … and, in any event, is without merit ….

Officers’ reliance on an apparently invalid under state law, but facially valid, “violation of court order” (VCO) arrest was saved by the good faith exception. The officers used the order to make an arrest by getting defendant to open his front door, not enter the house. None of the exceptions to the good faith exception applied to this arrest. The factual basis for the VCO was explored at the hearing to show its basis. The issuing state judge did not abandon his judicial role, and it was not so facially deficient that it could not be relied upon. The VCO was treated like an arrest warrant, and it was not used as a search warrant. United States v. Floyd, 247 Fed. Appx. 161 (11th Cir. 2007) (unpublished):

Here, Floyd’s assertion that the officers violated his Fourth Amendment rights by inducing McCray to open the front door without consent is meritless. It is noteworthy that Floyd is not arguing that the officers gained non-consensual entry into his home, but rather that they induced a non-consensual opening of his front door. However, it is not unconstitutional for an officer to approach an individual’s home and knock on the door when the officer has an arrest warrant for that individual. See, e.g., United States v. Bervaldi, 226 F.3d 1256, 1263, 1267 (11th Cir. 2000) (holding that police officers did not violate a person’s Fourth Amendment rights by entering the person’s home where the officers had an arrest warrant for a suspect, went to the address that they believed was the suspect’s home, believed the suspect was inside the home, knocked on the door, and later entered the house); see also Payton v. New York, 445 U.S. 573, 602-03, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980) (holding that, once an arrest warrant has been issued, it is constitutionally reasonable to require the suspect to open the doors of his home to police officers because “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within”). …

Alaska again avoids having to decide whether to follow Whren on pretext stops because this stop was not pretextual. Morgan v. State, 162 P.3d 636 (Alas. App. 2007):

We did not have to resolve this issue in Nease, and we conclude that we need not resolve this issue in Morgan’s case either. Even if we were to adopt a “pretext stop” limitation on traffic stops, that doctrine would not apply to the facts of Morgan’s case.

We reach this conclusion mainly because we disagree with Morgan’s contention that DUI enforcement was an “improper motivation” for the stop of Morgan’s vehicle.

In a § 1983 case, plaintiff was fleeing from the police and got stuck in the snow. When the police approached, he shot himself in the chest, and then the officers shot him five times. [Apparently concerned that his suicide attempt might fail?] The claim was to be viewed under the Fourth Amendment and not substantive due process under Albright. The case was removed from the state court system that was a fact pleading jurisdiction to the notice pleading federal court, but the court granted a motion for a more definite statement so the defendants could at least attempt a qualified immunity defense. Barr v. City of Beaver Falls, 2007 U.S. Dist. LEXIS 79614 (W.D. Pa. October 26, 2007). (Comment: In related news, ABC’s Good Morning America today had a story about a gun and taser cam already in use in Orange County, NY, which may become the norm someday, assuming police departments will also buy all the new holsters for the modified guns. The story is not online at the time of this posting.)

The trial court’s finding that defendant consented to an entry and interview at her day care center for allegedly doping kids (apparently to calm them down) was not clearly erroneous and is supported by the record. State v. Bieber, 2007 MT 262, 339 Mont. 309, 170 P.3d 444 (2007).*

Ohio’s implied consent law is constitutional, but a defendant cannot be separately punished for withdrawing consent. State v. Hoover, 2007 Ohio 5773, 173 Ohio App. 3d 487, 878 N.E.2d 1116 (3d Dist. 2007).*

Two interesting DNA cases from Massachusetts and North Carolina:

The police obtained defendant’s DNA from defendant’s used cigarette butts and a water bottle abandoned in trash. This was a valid seizure. The defense characterization “that the police effectively performed an oral cavity search by preparing and deploying the cigarettes and water bottle” was unpersuasive [putting it mildly]. Commonwealth v. Bly, 448 Mass. 473 (March 7, 2007).

The police were talking to the defendant in his backyard and he shredded a cigarette butt and put it in his pocket saying that he watched “CSI.” He smoked another cigarette and flicked the butt at a trash pile, but it rolled down near his feet. He forgot about it, and turned and left, and the officer took it. The seizure off the curtilage was invalid. State v. Reed, 641 S.E.2d 320 (N.C. App. 2007):

The fact that the cigarette butt was removed from the curtilage when one of the detectives kicked the butt off of the patio fails to defeat defendant’s reasonable expectation of privacy. Additionally, the furtive nature of the seizure raises a suspicion that the detective was aware that defendant would not consent to his taking the butt and that the detective knew that a seizure of the butt would be illegal so long as it was on the patio. It is possible that had defendant placed the cigarette butt in the common area, he may have lost his reasonable expectation of privacy; the police may not, however, by removing evidence from the curtilage, proceed as if the evidence had been left open to the public by defendant.

A BOLO for “a brownish or maroonish Mercury Topaz, Ford Taurus” being driven by a white male with a baseball cap did not support stop of defendant. State v. Dias, 284 Ga. App. 10, 642 S.E.2d 925 (2007):

Although the State’s brief contends the BOLO described the suspect as wearing a white cap and the trial court found that the suspect was described as wearing a baseball cap, neither officer who testified said that this information was in the BOLO. The only support that we have found for that contention is that during his testimony Dias stated that one officer said that he was pulled over because of the white hat he was wearing. Later, the officers asked him where the white hat was, and it appears that no white hat was found in Dias’s car. In any event, the officer testified that when he was stopped Dias was wearing a “black do rag.”

The trial court found that the car described in the BOLO, either a maroon Mercury Topaz or a Ford Taurus is not a particularized description because the cars are two different makes and models, that describing the driver as a white male in a baseball cap was insufficient to particularly identify a suspect, and that Dias was stopped two miles from the burglary.

Further, we note that the Ford Taurus was one of the most popular cars manufactured in this country and that from their testimony the descriptions provided to the officer were not as specific as the trial court credited to the State. The officer testified it was either a maroonish or a brownish Ford Taurus, or Ford Tempo, or Mercury Topaz, “or something like that, the caller was not real sure.” (Emphasis supplied.) Further, the evidence is uncontradicted that Dias was not wearing a white baseball cap.

No year or body style, information about the condition, or number of doors was provided about the suspect car and no details were provided about the driver or his dress other than his skin color and gender and perhaps he was wearing a white baseball cap. The effect of the description was that the officers should look for some sort of brown or maroon automobile manufactured by the Ford Motor Company driven by a white male who might be wearing a baseball cap. This description would cover a staggering number of vehicles and drivers in the State of Georgia.

In his treatise on Search and Seizure, Professor LaFave identified six factors to be considered when courts determine whether reasonable suspicion to conduct an investigatory detention existed:

“(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.”

4 LaFave, Search and Seizure, A Treatise on the Fourth Amendment (4 th ed.), § 9.5(g). In considering these factors we find (1) that for the reasons stated above the description of the vehicle and the suspect were inadequate. (2) We have no idea of the size of the area in which the offender might be found because no information was provided about the lapse of time between the crime occurring and Dias being stopped. We only know that the officer stopped Dias two minutes after he heard the BOLO, but we have no information about the time elapsed between the crime and the stop. (3) No information was provided about the number of persons about in the area. (4) The known or probable direction of the offender’s flight was provided. (5) Dias was not engaged in any activity which would have otherwise authorized a traffic stop. (6) The officers had no knowledge or suspicion that the person or vehicle stopped had been involved in other criminality of the type presently under investigation. Therefore, even applying Professor LaFave’s factors we find that no reasonable suspicion existed sufficient to warrant a stop and investigatory detention of Dias.

We find that the cases the State relies upon are distinguishable from this case because the descriptions contained more detailed information about the vehicles stopped. Compare, e.g., Thomason v. State, 268 Ga. 298, 301-302 (2) (a) (486 SE2d 861) (1997) (the officer “knew the color of both the car and its top, the manufacturer, model, and model year of the car, and the driver’s gender and race.”); Burnham v. State, 277 Ga. App. 310, 311 (1) (626 SE2d 525) (2006) (the officer knew “the description, make and model of the car. He knew that it was suspected that Burnham would return to his house soon. And, he observed a car matching the description drive directly into the cul-de-sac and stop in front of the Burnham home.”); Hestley v. State, 216 Ga. App. 573, 574 (1) (455 SE2d 333) (1995) (a white panel van that “didn’t have a lot of windows,” in the same general vicinity as reported by a concerned citizen.”)

Accordingly, we find that the trial court did not err in granting Dias’s motion to suppress.

A state search warrant issued for federal licensed firearms protected from self-incrimination under 26 U.S.C. § 5848 was suppressed and the good faith exception did not apply. People v. Sun, 148 Cal. App. 4th 374, 55 Cal. Rptr. 3d 696 (4th Dist. 2007):

The trial court also granted the defense motion to suppress all evidence seized under the warrant. It stated in its ruling that it found “suppression of the evidence obtained by the State of California is required by 26 U.S.C. section 5848. The search was based on evidence obtained from the defendant’s compliance with the National Firearms Act [NFA].” The District Attorney appeals from this order, contending there was nothing in the affidavit lifted from any records Sun filed or kept as required by the NFA; and, even if there was such evidence, there is no authority that a warrant issued by a magistrate should be suppressed notwithstanding any arguable violation of title 26 United States Code section 5848(a). Lastly, the District Attorney contends, the fruits of an executed search warrant are admissible under the “good faith” exception of United States v. Leon (1984) 468 U.S. 897, irrespective of errors made prior to its issuance. Because suppression of evidence is only possible if mandated by federal law (see Cal. Const. art. I, § 28, subd. (d)), suppression was, he argues, unauthorized in this situation.

. . .

On the other hand, the officer’s reliance in objective good faith is the crux of the rule. In People v. Jackson (2005) 129 Cal.App.4th 129, the fruits from the search permitted by warrant were suppressed because the information establishing probable cause for that warrant was obtained from an illegal wiretap. As the wiretap authority, 18 United States Code sections 2510 et seq., was established long before the judicially created “good faith exception,” its bar was prevailing over the exception crafted by the Supreme Court after its passage. Moreover, Congress had never attempted to provide–although given the opportunity–such a loophole in the intervening years. “Moreover, the policy reasons that led to the adoption of a good faith exception to the judicial exclusionary rule in cases involving search warrants do not apply to the statutory exclusionary rule in cases involving wiretap orders. In a case involving a search warrant, the true check on law enforcement’s abuse of power was ‘the detached scrutiny of a neutral magistrate.’ To obtain a wiretap, the person seeking the order must first obtain the approval for the wiretap from the United States Attorney General or an authorized designee. [Citation.] Hence, ‘if an appellate court determines wiretap evidence was gathered under a legally erroneous order, the government cannot place the blame on the magistrate who issued the order.’ [Citation.]” (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2006 Supp.) Illegally Obtained Evidence § 12, pp. 120-121 [italics added].)

By analogy, the same thing occurred here. Local law enforcement obtained information from another jurisdiction’s law enforcement agent who under the authority which granted him the power to inspect, also was ordered to keep confidential and privileged all information obtained from the entity he inspected. Nonetheless, the local agents presented the information to a magistrate and then blanketed themselves under the sanitizing “robe” of that unknowing magistrate once the warrant was signed. Such manipulation of a magistrate will be repeated if we permit one police agency to use information that another police agency is barred from using. Police reliance cannot be deemed in “objective good faith” when the original agent is aware the incriminating information was obtained by less than legal means. As the state’s reliance on the authority of the magistrate issuing the warrant was not in objective good faith, suppression of the fruits of the search was proper.

The E.D. Cal., in a forfeiture case based on a search warrant, determines the question of probable cause first, and then finds the good faith exception applicable as an alternative basis. United States v. Approximately $15,630.00 in United States Currency, 2007 U.S. Dist. LEXIS 66298 (E.D. Cal. September 7, 2007):

In sum, claimants’ argument is an attempt to engage the court in a technical review of the affidavit, rather than the practical, common-sense approach mandated by Gates. Because the court concludes that the search of Wahidi’s residence did not violate the Fourth Amendment in that the search warrant showed probable cause for the seizure of the items from Wahidi’s residence, or in the alternative, that the good faith exception to the exclusionary rule applies, claimants’ motion to suppress is DENIED.

A failure to file a motion to suppress under F.R.Crim.P. 12 is a waiver of the issue. That is sufficient to resolve the appeal, and it saves for later whether a failure to file a suppression motion deprives the appellate court of jurisdiction to decide the question on appeal. United States v. Collier, 246 Fed. Appx. 321, 2007 FED App. 0631N (6th Cir. 2007)*(unpublished).

Reasonable suspicion existed: “The specific, articulable facts indicated that Johnson had committed at least one of the above crimes. Moreover, the time of day, the high-crime area, and the suspicious actions and condition of Johnson, support the finding that the officers had reasonable suspicion that criminal activity had occurred.” United States v. Johnson, 246 Fed. Appx. 982, 2007 FED App. 0653N (6th Cir. 2007)* (unpublished).

Defense counsel’s failure to appeal denial of suppression motion was hardly prejudicial in light of the facts developed at the hearing which showed defendant would not prevail on appeal. Middleton v. Quarterman, 2007 U.S. Dist. LEXIS 66276 (W.D. Tex. September 7, 2007).*