Warrant issued under the Stored Communications Act held unconstitutional in the Sixth Circuit in Warshak v. United States, 490 F.3d 455 (6th Cir. 2007), did not mean that a warrant issued prior to that should be suppressed. The exclusionary rule will not be applied. United States v. Ferguson, 508 F. Supp. 2d 7 (D. D.C. 2007):

The Fourth Amendment’s exclusionary rule does not apply where the challenged evidence was obtained by an officer acting in objectively reasonable reliance on a statute even if that statute was later determined to be unconstitutional. Illinois v. Krull, 480 U.S. 340, 349 (1987). It has long been established that the primary purpose of the exclusionary rule “‘is to deter future unlawful police conduct and therefore effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.'” Id. at 347 (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)). It is not intended to cure the violation of a defendant’s constitutional rights. Id.

The deterrence of unlawful police conduct is not advanced when an officer acts in objectively reasonable reliance on a statute. Id. at 349. [It was not clearly unconstitutional at the time.]

Probation search for defendant residing in an unapproved residence was valid because of reasonable suspicion. [Court also questions defendant’s standing to contest the search, but the government did not raise it.] United States v. Manuel, 2007 U.S. Dist. LEXIS 66556 (E.D. Pa. September 7, 2007).*

San Diego’s Sheriff cannot get summary judgment to get out of a strip search case from the jail because plaintiff has a claim that the jail is implementing the policies of the Sheriff. Bacon v. Kolender, 2007 U.S. Dist. LEXIS 66274 (S.D. Cal. September 6, 2007).*

Defendant was subjected to a private search by somebody acting without the encouragement of law enforcement, so the motion to suppress was denied. United States v. Sheridan, 2007 U.S. Dist. LEXIS 66460 (N.D. Iowa September 7, 2007).*

Officer provided a deficient description of what evidence they had accumulated that defendant was involved in fires, and the search warrant was not supported by probable cause, and it was so deficient that reliance on it was unreasonable, so the good faith exception did not apply. Child porn was found on his computer. United States v. Carney, 2007 U.S. Dist. LEXIS 46640 (W.D. Pa. June 27, 2007):

Defendant’s position is that any reasonable officer would have realized that an uncorroborated, anonymous telephone tip cannot provide probable cause for a search warrant. Defendant cites to numerous federal court decisions which have held that the need to corroborate an anonymous tip with independent police work is so well-established that the failure to do so falls below the standard for the Leon exception to apply. See e.g., United States v. Helton, 314 F.3d 812 (6th Cir. 2003) (reasonable officer, as affiant applying for search warrant, would not have believed that anonymous tipster’s statements were trustworthy and reliable, consequently, good faith exception to exclusionary rule did not apply); United States v. Wilhelm, 80 F.3d 116, 120 (4th Cir. 1996) (search warrant which was based on affidavit providing information from anonymous informant was not supported by probable cause where affidavit provided no indication of informant’s truthfulness or reliability other than officer’s conclusory description of informant as “concerned citizen” and “mature person” and police only corroborated that directions which informant gave to defendant’s home were correct); United States v. Barrington, 806 F.2d 529, 532 (5th Cir. 1986) (probable cause affidavit which stated that police officer received information from confidential informant who was known to officer and who had provided information in past leading to arrest and convictions, did not justify police officer’s good-faith reliance on warrant in his search of hotel room).

As acknowledged by the government, Trooper Frew, who drafted the warrant affidavit, “could have and should have included more direct evidence that he and Trooper Valyo had gathered in the course of their investigation.” As it was, the only information in the warrant affidavit to link defendant to the arsons in the Armagh area was the uncorroborated, anonymous telephone tip. Beyond that, there was no information in the affidavit to connect defendant or his computer to the arsons.

Illegal search that produced additional drugs did not affect the defendant’s sentencing guideline range. United States v. Jock, 239 Fed. Appx. 126, 2007 FED App. 0437N (6th Cir. 2007)* (unpublished).

Defendant had no standing, so his attorney could not be ineffective for not challenging the search. Hayden v. United States, 2007 U.S. Dist. LEXIS 46447 (E.D. Mich. June 27, 2007).*

Defendant was convicted of resisting a law enforcement officer, and it was based on his refusal to respond to the officers’ requirement that he stop in his own home. Defendant’s roommate brought police on a “standby” to defendant’s home to get his stuff. Defendant let them in and walked back to his room, and officers tried to stop him because of a hunch [no reason to believe] he had a gun back there. Their grabbing him was constitutionally unjustified in this case. Briggs v. State, 873 N.E.2d 129 (Ind. App. 2007):

The State does not dispute Briggs’s contention that when the officers entered his apartment, he “was not under arrest, [in] custody, or under suspicion for a crime.” Appellant’s Br. at 14. As such, their encounter was consensual, and Briggs remained free to disregard the officers, walk away, or even order them to leave his home. At trial, Officer Evans testified that he asked Briggs to stop walking toward the back bedroom because, “you know, it’s America. People have the right to keep and bear arms and I [didn’t] know what’s in that dark apartment.” Id. at 26. Officer Evans got it half right: not only do Americans enjoy a constitutional right to keep and bear arms, but they also enjoy a constitutional right to be secure in their persons and private dwellings against unreasonable intrusions by government agents. Here, the officers detained Briggs based solely on a hunch that he could have a weapon in his bedroom. This amounted to an unreasonable seizure in violation of the Fourth Amendment. See State v. Atkins, 834 N.E.2d 1028, 1033 (Ind. Ct. App. 2005) (“Officer safety is always a legitimate concern, but standing alone officer safety cannot form the basis for a valid investigatory stop.”), trans. denied. Therefore, we conclude that the officers were not lawfully engaged in the execution of their duties and reverse Briggs’s resisting law enforcement conviction for insufficient evidence.

A credible report that defendant had pointed a gun from his car made the car a virtual crime scene, and that justified a protective search of the car. (Alternatively, it was justified as a search incident.) State v. Glenn, 140 Wn. App. 627, 166 P.3d 1235 (2007):

¶12 Importantly, in each case, a “determination of the reasonableness of an officer’s intrusion depends in some degree on the seriousness of the apprehended criminal conduct. An officer may do far more if the suspected misconduct endangers life or personal safety than if it does not.” State v. Rice, 59 Wn. App. 23, 27, 795 P.2d 739 (1990) (citing State v. McCord, 19 Wn. App. 250, 253, 576 P.2d 892 (1978)). Additionally, “[t]here is no constitutional violation in allowing a police officer to assume a citizen’s report has some basis when he is conducting an initial investigation of that complaint.” State v. Rice, 59 Wn. App. at 28.

¶13 A stop based on a report of a weapon sighting is markedly different from investigative stops based on reports of drug-related activities or traffic infractions. The latter were held lawful based on the suspects’ furtive movements and the presence of a passenger or the need to return to the vehicle to facilitate the investigation. But here, because the police received a legitimate citizen’s report that a driver had pointed a gun from his vehicle, no furtive movements were necessary to justify the belief that Glenn’s suspected misconduct endangered the safety of the officers. …

Search warrant for property for child pornography directed at defendant’s roommate, but covering all computers on the property, permitted a search of defendant’s computer, too. United States v. Umgelder, 2007 U.S. Dist. LEXIS 89719 (S.D. Ill. December 6, 2007):

The warrant authorized a search of the entire apartment for evidence of child pornography crimes, including the search and seizure of computers in the apartment; it clearly covered any computer in the apartment, and was not too general simply because it did not specifically authorize a search of Umgelder’s computer. The warrant did specifically indicate it was searching for items related to child pornography, so the executing officers were not free to go through Umgelder’s property without limits. This is sufficiently particular to withstand constitutional challenge. Accordingly, the evidence obtained from the search and seizure of Umgelder’s computer is not subject to suppression. (emphasis in original)

In a tax fraud case, a warrant was not inparticular for not listing 220 participants to cover others. Practical flexibility in the warrant was required. The search of defendant’s computers was not overbroad either because the government searched files beyond the warrant because nothing found there will be used in the case. Finally, the good faith exception would apply. United States v. Evanson, 2007 U.S. Dist. LEXIS 89618 (D. Utah December 4, 2007):

The decision in United States v. Le, 173 F.3d 1258 (10th Cir. 1999), also supports the government’s position. In that case, Mr. Le argued that the warrant authorizing a search of his residence was not sufficiently particular. He based his argument on the fact that although agents searching his residence knew about the kinds of specific explosives Mr. Le had in his garage at the time the agents obtained a warrant, they did not disclose that information to the judge and obtained a warrant that authorized the agents to seize all types of explosives and related evidence. The court disagreed with Mr. Le, noting that it had, in the past, upheld “broad and generic terms of description” in warrants because “the nature and characteristics of some criminal operations do not easily lend themselves to specific descriptions of things to be seized.” Id. at 1271-72 (citations omitted).

The Tenth Circuit has also recognized that “[t]here is a practical margin of flexibility permitted by the constitutional requirement for particularity in the description of items to be seized.” In re Matter of the Search of Kitty’s East, 905 F.2d 1367, 1374 (10th Cir. 1990) (citations omitted).

On the flip side, Mr. Evanson argues that the government’s failure to include the Players list, which existed at the time the agent applied for the warrant, rendered the First Warrant not specific enough. But this would not have been an effective tool to limit the warrant. Assuming the warrant had included a list of some 220 known participants in the fraud scheme, that would not have provided any guidance when the searchers confronted the 221st participant, who was previously unknown to the agents. In that case, the searching agents would have had to rely on the descriptions in the balance of the warrant, which would spell out the “distinguishing characteristics of the goods to be seized.” Listing the first 220 known participants would have done nothing to specify the “distinguishing characteristics” of the 221st, 222nd, or 223rd participants in the tax fraud schemes, for whose records probable cause had been established. Thus the list would not have added particularity–as contemplated by Leary–to the warrant. Because the descriptions found in the First Warrant were sufficiently particular to direct the agents in what they could and could not seize, failure to include the list was not error.

Defendant filed a motion to suppress a traffic stop, and the officers testified there was no video of the stop. Two months later, the prosecutor gave defense counsel a tape of the stop. A motion to reopen the motion to suppress was denied, and the trial court proceeded to a bench trial, and the tape was played showing that the cops essentially lied about the stop. The fact the trial court viewed the tape at trial was insufficient; the motion for reconsideration should have been heard, and the case is remanded for hearing. State v. Lashuay, 2007 Ohio 6365, 2007 Ohio App. LEXIS 5578 (6th Dist. November 30, 2007):

[*P20] The videotape directly contradicts White’s and Fairbank’s testimony at the suppression hearing. The trial court, when confronted with the existence of new evidence bearing directly on the propriety of the stop, should not have, as it indicated in its order, merely reviewed the parties’ filings on the motion to reopen the hearing. Aside from its own statement, the record is silent as to whether the trial court viewed the videotape before twice denying the motion to reopen the suppression hearing. Assuming, arguendo, that the trial court did view the videotape and found it to have no effect, this would have de facto been a reconsideration of the motion to suppress; in that case, the hearing should have been reopened to allow the parties to argue afresh in light of the new evidence considered. Contrarily, assuming arguendo that the trial court did not view the tape before twice denying the motion, the trial court erred in choosing to resolve factual conflicts raised by the new evidence through reference to the parties’ motions alone. Therefore, whether or not the trial court viewed the videotape before ruling on the motion to reopen, it abused its discretion in refusing to reopen the suppression hearing to consider the new evidence’s effect. Failure to consider the new evidence denied appellant a full and fair opportunity to present his case on the seizure’s validity. Pilot, supra; State v. Boggs (Mar. 20, 1995), 12th Dist. No. CA94-08-067, 1995 Ohio App. LEXIS 1029. Appellant’s second assignment of error is well-taken.

Maryland holds that there is no constitutional difference between a search and a seizure under the community caretaking function. Here, the defendant’s freedom from personal interference was outweighed by the government’s interest in checking on his welfare. Wilson v. State, 176 Md. App. 7, 932 A.2d 739 (2007):

Although our appellate courts have not directly addressed the issue of whether the caretaking function extends beyond searches to seizures of persons as well, there is no basis, rooted in logic or policy, for drawing a distinction between searches and seizures for purposes of the community caretaking function. In fact, the same policy that underlies the community caretaking searches–protecting citizens from likely physical harm–justifies seizures of individuals for that same purpose. Although the United States Supreme Court has not applied the community caretaking function to seizures, lower federal courts have. See, e.g. United States v. Garner, 416 F.3d 1208 (10th Cir. 2005) (holding that detaining an intoxicated man “slumped over” in a field was proper under the police’s community caretaking function); United States v. King, 990 F.2d 1552 (10th Cir. 1993) (concluding that an officer’s initial detention of a motorist at an accident site to advise him of hazardous conditions and to ask him to stop honking his horn was proper pursuant to the community caretaking function); United States v. Rideau, 949 F.2d 718 (5th Cir. 1991), rev’d en banc on other grounds, 969 F.2d 1572 (5th Cir. 1992) (observing that officers’ “stop” of a man wearing dark clothing and standing and stumbling in a road at night was proper under the caretaking function; in fact, the officers “would have been derelict in their duties had they not stopped [him] to check on his condition”).fn2

2. The community caretaking function has also been recognized by federal courts in civil cases. See Winters v. Adams, 254 F.3d 758 (8th Cir. 2001) (holding that officers, accused of conducting unreasonable seizure and use of excessive force, acted lawfully pursuant to the community caretaking function in detaining a driver who was in an “agitated” and “extremely hyper” state and who appeared to be intoxicated, to ensure that “he would not be able to drive and hurt someone”); Samuelson v. City of New Ulm, 455 F.3d 871 (8th Cir. 2006) (upholding grant of summary judgment in favor of police officers, accused in part of unreasonable seizure for transporting a private citizen to the hospital where, under the community caretaking function, “a jury could not find the officers’ actions objectively unreasonable,” given that the citizen was incoherent and appeared to be hallucinating); Tinius v. Carroll County Sheriff Dept., 321 F. Supp. 2d 1064 (N.D. Iowa 2004) (granting summary judgment in favor of police officers accused of unlawful detention for detaining a private citizen and transporting him to a hospital, as well as assisting in his involuntary catheterization because, under the community caretaking function, the officers’ conduct was reasonable since the citizen was walking along a roadway in rural Iowa in winter without a jacket, not carrying identification, and was incapable of carrying on a conversation with an officer).

United States v. Garner, 416 F.3d 1208 (10th Cir. 2005) is particularly instructive on this point as it is factually similar to the case at bar and provides a useful three-prong test for determining whether such detention falls within this function. In Garner, police were informed that a man was unconscious in a “half-sitting, half-slumped-over position” in a field near an apartment complex for several hours. Garner, 416 F.3d at 1211. [Lengthy discussion of Garner and comparision of this case omitted.]

New Mexico maintains a truck inspection station near the Mexican border, and defendant’s truck was stopped for inspection. After viewing the log book, the inspector had the back of the truck opened and the officer suspected that there was a false front in the truck. A drug dog was called and alerted. Under New Mexico law, there is no automobile exception, so the officer had to extend the stop to get a search warrant. That extension of the stop was reasonable. United States v. Michael, 2007 U.S. Dist. LEXIS 67951 (D. N.M. June 22, 2007).*

In another regulatory stop case in New Mexico, the court held that the government failed in its burden of proving a justification for the stop because the officer’s testimony changed on the basis for the stop to the point the court could no longer find the officer credible. United States v. Landell, 2007 U.S. Dist. LEXIS 67950 (D. N.M. June 22, 2007).*

Victim of a robbery described his assailants, and, based on that, the plaintiffs were arrested. The officers had probable cause to arrest the plaintiffs, so their § 1983 case failed. As a crime victim, the officers had no duty to corroborate his account. Pierre v. City of New York, 2007 U.S. Dist. LEXIS 60707 (E.D. N.Y. August 17, 2007).

Defendant had no reasonable expectation of privacy as to an officer looking in the window of his car when it was parked in a “VIP area” of a parking lot outside a club. The Sixth Circuit had previously held that a car parked on a motel lot reserved for motel guests had no additional expectation of privacy in their cars; United States v. Carriger, 541 F.2d 545 (6th Cir. 1976); and this is not different. United States v. Gooch, 499 F.3d 596, 2007 FED App. 0334P (6th Cir. 2007).*

The shooting of plaintiff’s decedent was shown to be reasonable under all the circumstances, and summary judgment is granted. Chung v. Anderson, 2007 U.S. Dist. LEXIS 60760 (D. Neb. August 16, 2007):

While it may appear that some alternative course of action could have been used to isolate Garcia, or that a lesser use-of-force could have disabled Garcia, it is undisputed that the officers’ earlier use of a Taser and their repeated commands and display of weapons failed to subdue or deter Garcia, and that he did pose an immediate and serious threat to the officers’ safety at the time the shots were fired. When faced with an “hysterical” man in close quarters, screaming and yelling, and advancing on officers with a sharp boning knife, a reasonable officer on the scene could conclude that use of deadly force was necessary to prevent serious injury to one or more of the officers.

Defendant had stopped his car because his contacts were bothering him, which was plausible because he was sitting there with his contact lens case in his hand. The officer ordered him out of the car, turning the encounter into a stop without reasonable suspicion. The consent during the stop was suppressed. State v. Lanes, 287 Ga. App. 311, 651
S.E.2d 456 (2007).*

In an IAC claim, failure to file a motion to suppress is considered a matter of trial strategy in Illinois, and it carries a presumption of correctness. To prevail, the defendant has to show that there is a reasonable probability he would prevail. Considering the stop on the merits, the defendant would not prevail, so counsel could not have been ineffective. People v. Morrison, 2007 Ill. App. LEXIS 903 (1st Dist. August 14, 2007).*

Possession of a small quantity of marijuana on defendant’s person during a legitimate patfrisk (a Massachusetts word) did not justify search of his vehicle because there is no automatic nexus. Officers were, however, justified in a “protective search” of the vehicle for weapons, and the search was valid on that ground. Commonwealth v. Pena, 69 Mass. App. Ct. 713, 871 N.E.2d 531 (2007).

Odor of marijuana; United States v. Scott, 2007 U.S. Dist. LEXIS 64782 (N.D. Ohio August 31, 2007)*; or burnt marijuana; United States v. Hamilton, 2007 U.S. Dist. LEXIS 65082 (S.D. Ga. August 31, 2007)*; is probable cause for search of whole vehicle.

Officers had reasonable suspicion to stop defendant’s car after it left a house to be searched under a warrant. There was a reasonable chain of inferences supporting possession in the car. United States v. Magana, 2007 U.S. Dist. LEXIS 64900 (E.D. Cal. August 16, 2007).*

The record supports the conclusion that the officer had reasonable suspicion to slightly detain the defendant and ask for consent during a traffic stop. Lindsey v. State, 287 Ga. App. 412, 651 S.E.2d 531 (2007).*

A provision in a search warrant to search “any and all persons present” failed particularity for lack of nexus as to anybody other than the defendant. (Also, the telephonic warrant was properly reconstructed by the testimony of the officer and magistrate and admission of the officer’s notes when the recording failed.) State v. Garcia, 140 Wn. App. 609, 166 P.3d 848 (2007):

Here, there is nothing to establish individualized probable cause for “any and all” of the persons who may have been present in the motel room where drug activity was suspected to occur. While the police may have had generalized suspicions regarding the presence of other persons and their possible involvement, this is not sufficient to create the required nexus. The “any and all persons present” warrant in this case violated the Fourth Amendment’s requirement of particularity.

The State argues that, even if the warrant for all persons present is invalid, the police nonetheless had the lawful authority to be present based on the search warrant. Upon discovering criminal activity inside the motel room, the police then had independent probable cause to arrest Mr. Munoz Garcia.

A warrant that authorizes the search of both a person and a place may be severed, and a court may uphold one portion of the warrant even if the other is later determined to be defective. …

References to “known drug users” in the affidavit for search warrant was conclusory. Otherwise, however, the information in the affidavit was sufficient for self-verifying detail from informants and first hand information from the officers. Abeyta v. State, 2007 WY 142, 167 P.3d 1 (2007).*

Anonymous tip was insufficient in this case. United States v. Crandell, 2007 U.S. Dist. LEXIS 65962 (D. N.J. September 7, 2007):

The question presented is whether an anonymous tip that “a black male with dreadlocks and blonde tips[,] wearing a tan shirt and blue jeans” was carrying a gun in the small of his back is, without more, sufficient to justify a police officer’s stop and frisk. This Court finds that it is not. The stop and frisk violated Defendant’s Fourth Amendment right to be free from unreasonable search and seizure. The fruits of the stop and frisk, namely a handgun, were tainted by the unconstitutionality of the stop. Defendant’s motion to suppress the evidence seized after the stop shall be granted.

The S.D. Ala. had to deal with an interesting question: When does arrest end and pre-arraignment detention begin? It matters in an excessive force case because during arrest the Fourth Amendment applies and in pre-arraignment situations the Fourteenth Amendment applies. Here, the defendant was in the police station and in the booking process when he was Tasered, so the court determined that the Fourth Amendment applied because arrest was not complete. (The court cites dozens of cases, just a few are here.) Stephens v. City of Butler, 509 F. Supp. 2d 1098 (S.D. Ala. 2007):

The Fourth Circuit has rejected the “continuing seizure” theory. See Riley v. Dorton, 115 F.3d 1159, 1164 (4th Cir. 1997). The Seventh Circuit has rejected the extension of Fourth Amendment protection into the “gap” between the initial arrest and charge–at least once the person has been arrested and “placed securely in custody.” Wilkins v. May, 872 F.2d 190, 192-93 (7th Cir. 1989) (Fourteenth Amendment applied to claim for threats during interrogation).

The authority in this Circuit establishes no clear cut-off point beyond which the Fourth Amendment ceases to apply. In Redd v. Conway, 160 Fed.Appx. 858, 861 (11th Cir. 2006), a panel of the Court of Appeals analyzed a claim that officers used excessive force during booking under the Fourteenth Amendment standard, without discussion of the potential for use of the Fourth Amendment standard. In Cotrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996) a different panel reversed the trial court’s application of the Fourteenth Amendment to an excessive force claim in which the arrestee died during transportation to the jail. And in Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002), another panel analyzed the plaintiff’s excessive force claim under the Fourth Amendment where the allegedly excessive force was applied during the ride to the jail but declined to decide whether the Fourth Amendment applied to a pretrial detainee.

(Comment: If the law could just be the same for these issues, this court would not have to engage in its metaphysical discussion of when an arrest, which can extend well into the time in the police station, transforms into post-arrest detention. It is interesting, but it is something only a Fourth Amendment geek would really like, and it only matters in an excessive force civil case. I’m apparently not.)

The investigation started with an anonymous tip, but, over five days, the officer was able to corroborate enough of the informant’s story to give reasonable suspicion for a stop. United States v. Pearsall, 492 F. Supp. 2d 432 (D. Del. 2007).*

Search issue raised in the trial court and abandoned for appeal was fairly litigated and barred under Stone v. Powell. Westfall v. Parker, 2007 U.S. Dist. LEXIS 45787 (E.D. Okla. June 22, 2007).*

Plaintiff who claimed that she was arrested at school for drug use for her father’s drugs and the case was “contrived” by the police stated a claim for relief. Allen v. Fresno City, 2007 U.S. Dist. LEXIS 45827 (E.D. Cal. June 13, 2007).*

Once the officer determined that defendant’s vehicle registration was valid and suggested he go to the DMV to straighten out a paperwork area, the stop should have ended, and the officer directed the defendant to get out of his vehicle without justification. Only then did the officer smell alcohol on him. The trial court’s motion to suppress was validly granted. State v. Weaver, 2007 UT App 292, 169 P.3d 760, 586 Utah Adv. Rep. 11 (2007).*

Delay during traffic stop was caused by the passenger’s lack of ID, which the officer could ask for because of his failure to have a seatbelt on when the car was stopped. A warrant on the passenger justified a search incident of the passenger compartment under Belton. United States v. Kissell, 2007 U.S. Dist. LEXIS 68064 (D. Utah September 13, 2007).*

New York’s 1st Dept. holds that an equal protection class claim for stops of black males while looking for a suspect failed on the merits. The Fourth Amendment claim had been previously upheld eleven years ago by the New York Court of Appeals in Brown v. State, 89 N.Y.2d 172, 674 N.E.2d 1129, 652 N.Y.S.2d 223 (1996). Brown v. State, 2007 NY Slip Op 6490, 45 A.D.3d 15, 841 N.Y.S.2d 698 (3d Dept. 2007):

Upon our review of the record, we find that neither the testimony of the law enforcement officers investigating this crime and the related documentary evidence nor the testimony of the class members established that each and every member of the class experienced a significant interruption of his or her freedom of movement so as to amount to an actionable seizure (see People v Bora, supra at 535-536; Landsman v Village of Hancock, 296 A.D.2d 728, 733, 745 N.Y.S.2d 258 [2002], appeal dismissed 99 N.Y.2d 529, 782 N.E.2d 563, 752 N.Y.S.2d 586 [2002]). To the contrary, the evidence demonstrates that the vast majority of police encounters did not go beyond brief level common-law inquiries, involving requests for name, identification, destination and possible information about the crime, and a request to show hands and arms (see People v Hollman, supra at 184, 191-192). While three individual claimants were found to have been seized (Brown, Sheryl Champen and Cantave), their encounters occurred under materially different circumstances: a street encounter (Brown), a bus-boarding encounter (Champen) and a traffic stop (Cantave); their disparate experiences in which their rights were violated provide no basis for relief to the class as a whole, and the remaining tort claims were properly dismissed.

New York traffic law requires that turn signals always be used, not just when it is safe to change lanes. Accordingly, defendant’s traffic stop was valid, and that led to the officer finding that it was a rental car and that the defendant had a knife, and a patdown revealed a hard object hidden in his underwear that was not anatomical. So, off to the precinct house they go and defendant is ordered to strip down and in his underwear is cocaine wrapped in a ball. The stop and ensuing actions were legal, and the motion to suppress should not have been granted. People v. Rice, 2007 NY Slip Op 6503, 44 A.D.3d 247, 841 N.Y.S.2d 72 (1st Dept. 2007).*

Discovery of an apparent hidden compartment justified making defendant follow the officer to a garage in a nearby city. Defendant’s consent to search the vehicle extended to looking at the call history on his cellphone. Defendant conceded that it otherwise was a lawful accessing of the number under the Electronic Communications Privacy Act. [Here there also was probable cause.] United States v. Espinoza, 2007 U.S. Dist. LEXIS 25263 (D. Kan. April 3, 2007):

The Supreme Court also explained that a search incident to arrest is only proper if there is some danger that the arrestee could use a weapon, or when evidence may be concealed or destroyed. Because the footlocker in Chadwick was within exclusive government control, there was no longer a danger that the arrestee might gain access to it to seize a weapon or to destroy evidence. Defendant argues that the cellular phone here is analogous to the footlocker in Chadwick. But courts have long recognized the need to retrieve information from a pager, a much more analogous piece of property, in order to prevent its destruction as evidence. The Court finds that this case is not analogous to a closed container, such as the footlocker discussed in Chadwick, and denies the motion to suppress on this ground. n41

n41 Accord United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007). Likewise, United States v. Reyes does not dictate suppression. 922 F. Supp. 818 (S.D.N.Y. 1996). Defendant likens the seizure here to the seizure in that case of a pager from a storage room of the hotel where the defendant had been staying. But that case dealt with the seizure of multiple pagers, and the phone numbers contained therein. That court suppressed evidence from the pager discussed by this defendant because the officer took an additional step and turned the pager on. Therefore, that court found that the exigent circumstances exception to the warrant requirement did not apply because the officer created the exigency. Id. at 835-36. More on point is, one of the other pagers at issue in Reyes, which was seized pursuant to the defendant’s general consent to search his vehicle, in the same manner that the cellular phone in this case was seized. See id. at 833-34. The court held that this general consent to search his vehicle included consent to search the memory of the pager. Id. at 834. That court, therefore, did not reach the issue of whether that pager was seized incident to arrest. See id. at 834 n.14.

Comment: I can barely accept search of a cellphone during a valid automobile search, but consent to search a car cannot logically extend to a cellphone. I just cannot believe that a person consenting to a search of the car would believe that his cellphone would be accessed, too. I guess it should not be left in the car. But, if probable cause develops, the cellphone might separately get searched. That is an entirely different question from consent with just reasonable suspicion and the officer asking to search a car.

Defendant had been stopped for not having his headlights on in poor visibility, and the officer then suspected driving under the influence. He was asked if he was carrying drugs, and he said “yes” then “no.” He then consented. People v. Valencia, 169 P.3d 212 (Colo. App. 2007):

Inherent social pressure to cooperate with police is not in itself a sufficient basis for concluding that a police-citizen encounter constituted a seizure. See People v. Johnson, 865 P.2d 836, 842 (Colo. 1994). However, a consensual interview can escalate into an investigatory stop if, upon consideration of the totality of the circumstances, a reasonable person, innocent of any crime, would feel that he or she was not free to leave the officer’s presence or disregard the officer’s request for information. See People v. Jackson, supra, 39 P.3d at 1188; see also People v. Heilman, supra, 52 P.3d at 228; People v. Paynter, 955 P.2d 68, 72-73 (Colo. 1998).

Officers were watching a street drug dealer, and two vehicles stopped and left. When defendant’s vehicle stopped, the officers stopped him. They lacked reasonable suspicion at the time of the stop. State v. Stewart, 2007 Ohio 1597, 2007 Ohio App. LEXIS 1474 (8th Dist. April 5, 2007):

In the instant matter, the detectives can point to even less suspicious facts that warrant a stop of the Ford Ranger than those provided in Delagraza, supra. Prior to Detective Mendoza effectuating the stop of the vehicle by turning on his lights, Detective Pitts only observed appellant standing outside an apartment area known for drug activity take something from his mouth, count it, and return it to his mouth. Additionally, Detective Pitts only witnessed appellant approach the Ford Ranger, speak with the driver, and enter the vehicle. Detective Pitts did not see appellant stop any other vehicles prior to the Ford Ranger, nor did Detective Pitts see appellant perform any transactions with any other drivers in the area. Furthermore, as in Delagraza, supra, Detective Pitts did not observe appellant with any drugs or see any exchange between appellant and the driver of the Ford Ranger. Considering the totality of the circumstances, we find the trial court erred in determining the detectives had reasonable suspicion to stop the Ford Ranger.

Defendant filed a motion to suppress and never obtained a ruling, so the issue was waived for appeal. Bollinger v. State, 2007 Tex. App. LEXIS 2677 (Tex. App. — Eastland April 5, 2007).*

Parole violator warrants under the old regime of 18 U.S.C. § 4213, still in place for older convicts, are administrative warrants issued outside of the Warrant clause of the Fourth Amendment. The court distinguished United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004), on warrants for revocation of supervised release, interpreting 18 U.S.C. § 3583(i) to incorporate the Fourth Amendment. Sherman v. United States Parole Comm’n, 502 F.3d 869 (9th Cir. 2007).

After defendant’s stop, the officer noticed drugs in defendant’s hand, and that justified a search of defendant’s car under the automobile exception. (The government admittedly raised this argument because search incident was too tenuous to support a search of the vehicle.) United States v. Lawson, 2007 U.S. Dist. LEXIS 64628 (C.D. Ill. August 31, 2007).*

Habeas relief denied to an inmate who pro se claimed ineffective assistance for defense counsel’s failure to object to the police listening in to his conversation with his wife with her permission where he confided in her about his crime. Palmisano v. Yates, 2007 U.S. Dist. LEXIS 64621 (S.D. Cal. August 31, 2007).*

At the government’s invitation, Ninth Circuit takes good faith exception question first and does not decide probable cause except as ancillary to whether there is good faith. [Taking up the GFE tells you the outcome: They wouldn’t be doing it if they had not already decided that it applied, and all it takes is “colorable probable cause” in the Ninth Circuit.] United States v. Crews, 502 F.3d 1130 (9th Cir. 2007):

For the good faith reliance exception to apply, the officers must have relied on the search warrant in an objectively reasonable manner. United States v. Clark, 31 F.3d 831, 835 (9th Cir. 1994). The affidavit “must establish at least a colorable argument for probable cause” for the exception to apply. United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006). Therefore, if there is a colorable argument that the search of Apartment 3 was supported by probable cause, the officer’s reliance on the search warrant was objectively reasonable. This ends the inquiry without having to belabor the issue of whether the affidavit stated probable cause.

There are four circumstances in which the good faith exception does not apply because reliance is per se unreasonable: (i) where an affiant misleads the issuing magistrate or judge by making a false statement or recklessly disregarding the truth in making a statement; (ii) where the magistrate or judge wholly abandons her judicial role in approving the warrant, acting only as a “rubber stamp” to the warrant application rather than as a neutral and detached official; (iii) where the warrant is facially deficient in detail as to the place to be searched or the things to be found that the officers could not reasonably presume it to be valid; or (iv) where the affidavit upon which the warrant is based is so lacking in indicia of probable cause that no reasonable officer could rely upon it in good faith. Leon, 468 U.S. at 923-26.

The district courts below found that the good faith reliance exception was inapplicable because the affidavit was so lacking in indicia of probable cause that the police officers should have known that the search was illegal and because the officer’s affidavit misled the issuing state judge. Specifically, the courts found that the officers were objectively unreasonable in believing they would find additional evidence of the crime of “felon in possession of a firearm” because the affidavit did not sufficiently link Crews to Apartment 3. We disagree. For the following reasons, the district courts erred in failing to apply the good faith reliance exception.

On its face, the affidavit was not so lacking in indicia of probable cause as to render reliance upon it objectively unreasonable. For probable cause, an affidavit must establish a reasonable nexus between the crime or evidence and the location to be searched. United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir. 2002). It need only be reasonable to seek the evidence at the location indicated in the affidavit. United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993). The affidavit showed indicia of such a reasonable nexus between the crime of “felon in possession of a firearm” and Apartment 3 by demonstrating a sufficient link between Crews, Manus, firearm evidence, and Apartment 3 such that an officer could have reasonably relied upon it in good faith.

Comment: This has annoyed me since 1984, and I write about it in § 5.11 of the Treatise: Subsuming PC into the GFE provides no guidance to law enforcement or the courts as to what is probable cause. It tells us what is “colorable probable cause” and that is as far as they need to inquire. Colorable probable cause is good enough if a search warrant was issued on the affidavit. Those in favor of this view see absolutely nothing wrong with it because they do not care what is or is not probable cause. Officers in warrantless searches need to know, and the existence of probable cause has to be determined there. This creates a great irony in the law: courts spend time parsing the facts [as in other posts today] over whether reasonable suspicion or probable cause exists, but they shirk their responsibility on probable cause when there is a warrant. And why? Experience shows that probable cause is not that hard to show, and the defendant, law enforcement, and the public are entitled to know that there was probable cause or not.

In the past, I have analogized probable cause to a game of darts: The government scores if it hits the target, and a bullseye is never required, but the points do add up much faster. Under the GFE, if the government just hits the wall holding the target, it scores. The defendant in the same dart game, however, has to hit the target to score.

A computer’s connection to an alleged crime does not take much to get into the particularity clause for a search. When the warrant seeks records and a computer is on the premises, that seems to be about all it takes these days. United States v. Khanani, 502 F.3d 1281 (11th Cir. 2007):

Portlock contends that the seizure of his computers was without probable cause. Specifically, Portlock argues that the affidavit submitted to obtain the warrant order provided no fact-specific reason to believe there were computers in Portlock’s office, or that his computers had been used to facilitate the commission of any criminal violation of Title 8 or 26. “A warrant, and its corresponding search, violates the Fourth Amendment if it fails to specify the place to be searched and the items to be seized, or if it is issued by an official who is not neutral and detached, or if it is procured by a false statement made intentionally or recklessly, or if it is not supported by probable cause.” United States Steel, LLC, v. Tieco, Inc., 261 F.3d 1275, 1290 (11th Cir. 2001) (internal citations omitted). None of the foregoing occurred in this case. Here, the Master Affidavit describes Portlock as Maali’s accountant, and one of Maali’s tax returns had been found in the trash outside Portlock’s office. While the Master Affidavit did not indicate that it was a computer-generated tax form, in reviewing the affidavit to ascertain whether it furnished probable cause for the warrant sought, the affidavit is given a “common sense and realistic” interpretation. See United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir. 1977). Additionally, task force coordinator Stephen Thomas testified, that prior to the warrant application, he had entered Portlock’s office and observed connected computers. The district court did not err in concluding that the allegations of the Master Affidavit were sufficient to provide probable cause for the seizure of computers from Portlock’s accounting business.

Comment: Computer search clauses are almost de rigeur these days. On August 31st, I posted that, as to drug searches, inclusion of computers for the search is almost absolute.

Indiana holds that the growing use of questions about possession of drugs during a routine traffic stop is unreasonable under the Indiana Constitution. State v. Washington, 875 N.E.2d 278 (Ind. App. 2007):

As a preliminary matter, we observe that this court has expressed its concern over “‘the increasingly common practice of police stopping vehicles for minor traffic offenses and seeking consent to search with no suspicion whatsoever of illegal contraband[.]'” Clark v. State, 804 N.E.2d 196, 201 (Ind. Ct. App. 2004) (quoting Callahan v. State, 719 N.E.2d 430, 439 (Ind. Ct. App. 1999)); see also Camp v. State, 751 N.E.2d 299, 302 (Ind. Ct. App. 2001), trans. denied (2002); Norris v. State, 732 N.E.2d 186, 191 n.1 (Ind. Ct. App. 2000). We now take the opportunity to address the propriety of that increasingly common practice of officers asking about the presence of illegal substances during an otherwise routine traffic stop.

. . .

Officer Hoffman explained that he asked Washington whether he had any “guns or drugs,” because Washington appeared nervous and did not make eye contact with him. Tr. at 7-8. It is true that nervousness may indicate potential wrongdoing. Quirk, 842 N.E.2d at 341. However, Indiana courts have been hesitant to assign significant weight to a person’s display of nervousness. Id. Indeed, our Indiana Supreme Court has observed, “Because it is not at all unusual that a citizen may become nervous when confronted by law enforcement officials, other evidence that a person may be engaged in criminal activity must accompany nervousness before the nervousness will evoke suspicion necessary to support detention.” Id.

Certainly, we recognize the concern for officer safety, and, to that end, Indiana courts have acknowledged the appropriateness of, during the course of a traffic stop, asking about the presence of guns. Lockett v. State, 747 N.E.2d 539, 543 (Ind. 2001) (officer may as matter of routine practice ask driver stopped for traffic violation if he has a weapon on his person or in his vehicle); Jarrell v. State, 818 N.E.2d 88, 92 (Ind. Ct. App. 2004), trans. denied (2005) (where weapon was found following general Lockett-type inquiry that asked whether there was anything in the vehicle that the officer should know about, no Fourth Amendment violation occurred). However, in the context of this afternoon traffic stop of a moped for a traffic infraction, which presented no indications of drugs or other criminal activity, Officer Hoffman’s inquiry that asked Washington whether he possessed drugs was not related either to the purpose of the stop or to officer safety. The State urges that because the question did not extend the length of the stop, it was not an intrusion of constitutional dimension. While we concede that Officer Hoffman’s inquiry was minimal in terms of duration, it nevertheless extended the duration of the stop. Of greater significance, however, is the fact that to allow police to routinely question individuals during a traffic stop about the presence of drugs would open the door to all sorts of inquiries, including whether the person cheated on his last year’s tax return or had in the past illegally pirated music from the internet. While tax fraud and internet piracy are–like illegal drug possession–serious concerns, routine traffic stops are not the place for such inquiries.

Indiana’s narrow trash search rule in Litchfield applies retroactively to any case pending when it was decided. Belvedere v. State, 875 N.E.2d 352 (Ind. App. 2007).*

Defense counsel at trial preserved the issue for appeal that defendant’s jaywalking stop did not justify a frisk for weapons. Appellate counsel overlooked the issue, and defendant would have prevailed on that appeal issue. Taylor v. State, 234 S.W.3d 532 (Mo. App. 2007):

It is possible here, as apparently occurred with Taylor’s appellate counsel, to fail to recognize the significant distinction between this case and a Terry case, which necessarily involves a reasonable suspicion of criminal activity. See United States v. Childs, 277 F.3d 947, 952-53 (7th Cir. 2002) (en banc) (traffic stops based on probable cause are not Terry stops). Nothing about the act of jaywalking suggests that a subject must be investigated for criminal activity, or may be armed and dangerous. “A traffic stop is not investigative; it is a form of arrest, based upon probable cause that a penal law has been violated.” United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 648 (8th Cir. 1999).

At the 29.15 hearing, Taylor’s appellate counsel stated that, “based on a Terry stop that you can at least stop and question somebody, I thought that, you know, it looked like he was–he’s being stopped, then he volunteered he had the crack pipe.” Counsel said, “I just couldn’t see where I could make an argument.” It is not really clear why counsel thought there was no argument here. Perhaps counsel erroneously thought that jaywalking, a traffic violation, constituted “criminal activity” warranting an investigation and a concomitant frisk. Perhaps more likely, counsel overlooked the fact that the record makes clear that the officers had already informed Taylor they were going to frisk him, and had him up against the police car, with his hands on the police car, when Taylor “volunteered” the information. Whatever the case, the comments of counsel suggest that because Taylor indicated to officers (after they ordered a frisk) that he had a crack pipe, counsel decided there was no argument to be made.

Although counsel was an experienced and able appellate attorney, this decision was seriously and uncharacteristically faulty, and beneath the level of expertise expected from a reasonably competent attorney. Both logic and law would indicate that the justification for the stop and frisk had to exist before the frisk was ordered and Taylor acknowledged having the crack pipe. See David, 13 S.W.3d at 311. Because Taylor volunteered the crack pipe only after the police ordered the frisk, the admissibility of the evidence would rise or fall according to the reasonableness of the frisk under the circumstances.

. . .

A successful appeal on the issue of the lawfulness of the frisk would have effectively excluded all physical evidence and all statements made by Taylor once he was impermissibly seized. A successful appeal of that issue would have left the prosecution with nothing to prosecute and, thus, would have resulted in the dismissal of the charge and the discharge of Taylor.

Eyewitnesses to a boating accident provided officers with information used to stop the defendant in his boat because it was believed he might be in need of assistance. Thus, the community caretaking function applied to the stop. He was charged with felony boating under the influence as a result. Castella v. State, 959 So. 2d 1285 (Fla. App. 4th Dist. 2007):

Instead, the individuals in this case simply indicated that Castella had been involved in an accident, not that he in any way had caused the accident or committed a criminal or boating infraction. As such, rather than investigating criminal activity based on face-to-face interaction with individuals who left as quickly as they came, law enforcement in the present case undertook its public safety function in the wake of a reported tragedy. As such, based on the face-to-face interaction between the individuals and law enforcement officers in this case, fulfillment of a civic duty to provide an eyewitness report of a boating accident, and the exigencies of investigating a possible emergency situation, we conclude that, in light of the totality of the circumstances, the individuals in this case were citizen informants upon whose information the deputies were entitled to rely without further corroboration when stopping Castella’s boat.

Facebook‘s insidious program that told a Facebook user’s friends everything the user was buying online or movies they were buying tickets to bit the dust after a mere ten days, thanks to a user uprising. See NYTimes.com yesterday: Facebook Retreats on Online Tracking:

Faced with its second mass protest by members in its short life span, Facebook, the enormously popular social networking Web site, is reining in some aspects of a controversial new advertising program.

Within the last 10 days, more than 50,000 Facebook members have signed a petition objecting to the new program, which sends messages to users’ friends about what they are buying on Web sites like Travelocity.com, TheKnot.com and Fandango. The members want to be able to opt out of the program completely with one click, but Facebook won’t let them.

Late yesterday the company made an important change, saying that it would not send messages about users’ Internet activities without getting explicit approval each time.

Facebook and MySpace are incredibly stupid and completely insipid websites for lonely people or people with too much time on their hands. It is useful to the defense bar, however, because purported crime victims have made admissions on their Facebook or MySpace pages that defense lawyers can use against them, assuming one can get into their website.

Amazingly, Facebook was sending personal information about members’ purchases to all their “friends” listed on the website, without the members’ permission. How they thought they could get away with this is unfathomable to me. Talk about an invasion of privacy ….