The police obtained a commerically available GPS unit off the internet and attached it to defendant’s car while it was in a public place. It was later retrieved, and its memory downloaded, and it placed defendant near a suspected meth lab on another’s property, and the police got consent to enter from the owner and retrieved the lab. The defendant then showed up at the land while they were searching. The use of the GPS device violated no right of the defendant. United States v. Garcia, 474 F.3d 994 (7th Cir. February 2, 2007):

The defendant’s contention that by attaching the memory tracking device the police seized his car is untenable. The device did not affect the car’s driving qualities, did not draw power from the car’s engine or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not even alter the car’s appearance, and in short did not “seize” the car in any intelligible sense of the word. But was there a search? The Supreme Court has held that the mere tracking of a vehicle on public streets by means of a similar though less sophisticated device (a beeper) is not a search. United States v. Knotts, 460 U.S. 276, 284-85, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). But the Court left open the question whether installing the device in the vehicle converted the subsequent tracking into a search. Id. at 279 n. 2; see also United States v. Karo, 468 U.S. 705, 713-14, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984). The courts of appeals have divided over the question. Compare United States v. McIver, 186 F.3d 1119, 1127 (9th Cir. 1999), and United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976) (per curiam), holding (and United States v. Michael, 645 F.2d 252, 256 and n. 11 (5th Cir. 1981) (en banc), and United States v. Bernard, 625 F.2d 854, 860-61 (9th Cir. 1980), intimating) that there is no search, with United States v. Bailey, 628 F.2d 938, 944-45 (6th Cir. 1980); United States v. Shovea, 580 F.2d 1382, 1387-88 (10th Cir. 1978), and United States v. Moore, 562 F.2d 106, 110-12 (1st Cir. 1977), holding the contrary. Several of the cases actually take intermediate positions, such as requiring reasonable suspicion rather than probable cause (a possible interpretation of Michael), or probable cause but no warrant — Shovea and Moore. This court has not spoken to the issue.

If a listening device is attached to a person’s phone, or to the phone line outside the premises on which the phone is located, and phone conversations are recorded, there is a search (and it is irrelevant that there is a trespass in the first case but not the second), and a warrant is required. But if police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.

Daytime search that started at 8:58 p.m. when 9:00 p.m. was the latest under state law was valid. The search must start before 9:00 p.m., but it need not be completed by 9:00 p.m. United States v. McCarty, 475 F.3d 39 (1st Cir. February 2, 2007):

The search continued until 10:35 P.M., but we have held that a search which began during the daytime but which continued through the nighttime is not necessarily unreasonable. Young, 877 F.2d at 1104-05; see also State v. Sargent, 2005 ME 78, 875 A.2d 125, 127-28 (Me. 2005) (finding no grounds for suppression where a search began before 9:00 P.M. but concluded at 11:00 P.M.). In fact, the search of McCarty’s apartment was significantly less intrusive than the valid search conducted in Young, which began in the morning, and continued throughout the night and for two additional days. 877 F.2d at 1104.

Comment: Since a nighttime search under F.R.Crim.P. 41(a)(2)(B) is 10 p.m. to 6 a.m., reliance on state law is irrelevant. I won a state law nighttime search issue because the search took place at 9 p.m. where state law says 8 p.m., and the feds took it over and the 8th Cir. held that Rule 41 governed because the case was in federal court, notwithstanding that a state judge issued the warrant. United States v. Appelquist, 145 F.3d 976 (8th Cir. 1998).

Defendant’s live-in girlfriend could consent to the search that located the evidence against defendant because she had apparent authority. United States v. Powell, 215 Fed. Appx. 143 (3d Cir. 2007)* (unpublished).

Defendant’s contention that he would not consent to a search because he distrusted the police, but claimed no coercion, was belied by his written consent. United States v. Bowman, 216 Fed. Appx. 325 (4th Cir. 2007)* (unpublished).

The defendant was asked for consent nine times due to his nonresponsiveness to the officer’s questions. One could be interpreted by some as a command, but not on the totality. State v. Ry, 2007 211 Ore. App. 298, 154 P.3d 724 (2007):

Defendants contend, in related fashion, that Guinto’s consent was coerced unlawfully because the sheer repetition of Bennett’s request made it apparent that “this particular trooper did not intend to relent with his request or release the car or the defendants until the trooper had searched the car to his satisfaction.” Certainly, Bennett showed dogged persistence in trying to obtain consent, and his testimony shows that he intended to remain at the door of the vehicle until defendants consented to a search or a backup officer arrived. Thus, the consent to search was obtained at a time when defendants were not free to leave.

That, however, is hardly dispositive of the voluntariness of consent, given that consent was obtained during the course of a lawful stop. n6 See, e.g., State v. Charlesworth/Parks, 151 Ore. App. 100, 114, 951 P.2d 153 (1997), rev den, 327 Ore. 82, 961 P.2d 216 (1998); State v. White, 130 Ore. App. 289, 291, 881 P.2d 169 (1994). In Charlesworth/Parks, we reversed a trial court’s determination that the defendant’s consent had been involuntary. There, the defendant consented to a search of his car after his car had been lawfully blocked in by a police car and he had been ordered from the car at gunpoint and handcuffed. In holding that the consent to search was voluntary, we noted that the defendant “had considerable experience with the criminal justice system” and that “he knew he had the right to refuse to consent to the search.” Id. at 114.

. . .

Here, the circumstances, when viewed in their totality, were considerably less “coercive” than those in Charlesworth/Parks (where weapons were displayed and the defendant was in handcuffs), White (where the defendant was in handcuffs), and Bea (where the defendant was handcuffed and arrested). In contrast, Guinto consented to the search while sitting, unrestrained, in the car, less than five minutes into a lawful, albeit somewhat stressful, traffic stop. The encounter was beside a public highway during daylight hours, and Bennett’s interaction with defendants was polite–he did not raise his voice, draw a weapon, or employ any threats or promises. He simply requested consent–and then radioed for backup.

. . .

Under the totality of the circumstances, Bennett’s words–however persistent–and actions were not so coercive as to render Guinto’s consent involuntary. We thus affirm the trial court’s determination that the warrantless search of the car and its contents, including the luggage, did not violate Article I, section 9, of the Oregon Constitution [or the Fourth Amendment].

Consent to search defendant’s premises was given by the owner, and there was no indiciation that the owner had no authority to consent to the search as he did. United States v. Mark, 2007 U.S. Dist. LEXIS 17878 (D. V.I. February 23, 2007).*

Officers clearly had probable cause for the search warrant. United States v. Ramos, 2006 U.S. Dist. LEXIS 95668 (D. P.R. August 25, 2006)*:

To mandate an evidentiary hearing, the defendant must submit more than conclusory averments and be supported by more than a mere desire to cross-examine the informant, as the motion to suppress herein attempts. Still, defendant arguments regarding hearsay information should fall on deaf ears since the affidavit in support of the state search warrant describes with detail the personal observations of the law enforcement agent as to activities personally conducted by defendant in front of the residence subject of the search, with particularity as to the dates, time and participants, as well as the activities observed.

Defendants lacked standing to a vehicle because of a lack of connection to it. United States v. Colon-Santiago, 2006 U.S. Dist. LEXIS 95664 (D. P.R. August 7, 2006)*:

As in Aguirre, the record of the suppression hearing in this case is devoid of any proof tending to show that co-defendants Garcia-Rios, Rivera-Lopez and Cedeno-Rodriguez owned or leased the Suzuki Vitara, or that it was registered to them. There was no evidence that they even possessed keys to the vehicle or had used it on prior occasions. Thus, there is no evidence co-defendants Garcia-Rios, Rivera-Lopez and Cedeno-Rodriguez “had exhibited the slightest subjective expectation of privacy vis-a-vis the vehicle.” Aguirre, 839 F.2d at 856. In this case, co-defendants Garcia-Rios, Rivera-Lopez and Cedeno-Rodriguez had ample opportunity at the suppression hearing to demonstrate they enjoyed the requisite standing to savage the search of the car–but failed to do so. We note these defendants also failed to address the standing issue in their written briefs submitted after the evidentiary hearing.

School officials had reasonable suspicion for a search of students for stolen money at a public school. Lindsey v. Caddo Parish School, 954 So. 2d 272 (2d Cir. 2007).*

Tennessee’s Aguilar-Spinelli standard was not met. Basis of knowledge was shown, but reliability of the information was not. State v. Petty, 2007 Tenn. Crim. App. LEXIS 229 (March 8, 2007):

The state’s failure to meet its “reliability” burden could still have been overcome by independent police corroboration. However, the police did not meet the applicable standard in this case. Our courts have held that “observations by police are sufficient if they provide an ‘unusual and inviting explanation,’ even though the observations are ‘as consistent with innocent as with criminal activity.'” Moon, 841 S.W.2d at 341 (quoting Wayne R. LaFave, Search and Seizure, § 3.3(f) at 683 (2d ed. 1987)). Furthermore, the police must corroborate “more than a few minor elements of the informant’s information … especially if the elements relate to non-suspect behavior.” Smotherman, 201 S.W.3d at 664 (citing Moon, 841 S.W.2d at 341)).

Many of the post-Jacumin drug cases in which police corroboration was held sufficient to justify a search warrant involved the police confirming, via one of the senses, drug manufacturing or sale taking place. See generally State v. Carter, 160 S.W.3d 526, 533-34 (Tenn. 2005) (prior to obtaining search warrant for house where methamphetamine was allegedly being made, officer walked [*16] past defendant’s house and smelled burning chemicals and heard persons running around inside); State v. Mark Ray Delashmit, No. W2004-00946-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 592, 2005 WL 1388041 (Tenn. Crim. App. June 13, 2005) (informant wore a wire, which allowed police to hear defendant negotiating drug deal with informant). In the instant case, the police did not independently confirm that the defendant was in possession of drugs before obtaining the warrant; they did not see the defendant selling drugs, nor did they ask an informant to “wear a wire,” as did the informant in Delashmit. The only information that the police were able to independently confirm was the address of the house and the fact that a red pickup truck containing lawn equipment was parked outside. Such information was of the “non-suspect” type that our courts have held insufficient for purposes of independent corroboration under the reliability prong of Aguilar-Spinelli. See generally Smotherman, 201 S.W.3d at 664 (prior to search warrant, police were only able to confirm that defendant resided at house to be searched; Tennessee Supreme Court held that this information “involves only one element of non-suspect behavior and offers little support to the credibility of the informant or the reliability of the informant’s information regarding the occurrence of drug transactions at the defendant’s residence.”). As such, adequate police corroboration of the informant’s information was not present in this case. Absent both police corroboration and a showing that the defendant or his information was reliable, the second prong of the Aguilar-Spinelli test failed in this case, and the search warrant for the defendant’s home should not have been issued.

CONCLUSION

The affidavit in support of the search warrant in this case contained information that established the basis for the informant’s knowledge. However, the second prong of the Aguilar-Spinelli test, which requires either a showing that the informant or his information is reliable or independent corroboration of the informant’s information, was not satisfied. The trial court was correct in suppressing the evidence that resulted from the improperly-issued search warrant; therefore, the judgment of the trial court is affirmed.

California recognizes that In re Tyrell J. not requiring knowledge of probationary status before a probation search has been undermined to the point it should be overruled, particularly in light of Samson v. California. Knowledge of probationary status is required to prevent overbearing and harassing searches. In re Jaime P., 40 Cal. 4th 128, 51 Cal. Rptr. 3d 430 (November 30, 2006).

Habeas petitioner loses on the merits of an ineffective assistance on a search claim because he could not win on the merits. (The convoluted AEDPA formula of “clearly established” case law did not even have to enter into it.) Mosby v. Senkowski, 470 F.3d 515 (2d Cir. November 30, 2006).*

Doctor and his wife sued LVMPD for a false arrest. He claimed that the officers did not properly identify themselves before the arrest. A fact question remained for trial, and the district court improperly granted QI. Vlasak v. Las Vegas Metropolitan Police Department, 213 Fed. Appx. 512 (9th Cir. 2006)* (unpublished).

Exigent circumstances for hot pursuit into plaintiff’s backyard to arrest for misdemeanor fleeing from a fight is a fact question for the jury in this case. Thorne v. Steubenville Police Officer, 2006 U.S. Dist. LEXIS 86059 (S.D. Ohio November 28, 2006).*

Ongoing activity makes information for a search warrant not stale. United States v. Allen, 2006 U.S. Dist. LEXIS 86185 (D. Utah November 15, 2006).*

Not on point, but interesting, is a California Court of Appeals case holding that a motel room is a “habitation” for purposes of the burglary statute, citing Fourth Amendment cases. People v. Villalobos, 145 Cal. App. 4th 310, 51 Cal. Rptr. 3d 678 (4th Dist. November 30, 2006):

The concept of the right to privacy in a hotel room as arising from its status as a sleeping place analogous to the home is recognized in the context of Fourth Amendment search and seizure law as well. “We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend. Society expects at least as much privacy in these places as in a telephone booth–‘a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable,’ [citation].” (Minnesota v. Olson (1990) 495 U.S. 91, 99, 109 L. Ed. 2d 85; see also Stoner v. State of Cal. (1964) 376 U.S. 483, 489, 11 L. Ed. 2d 856 [guest in a hotel room receives the same constitutional protections against unreasonable search and seizures as a person in his or her house].)

NJ statute permits drug testing of students on individualized suspicion of being under the influence at school. Plaintiffs’ son was clearly suspected of being under the influence because he was ADD and was suddenly acting like he was stoned, which he was. The testing here was constitutional. Parental consent was not constitutionally required, but the parents were notified according to law. Gutin v. Washington Twp. Bd. Of Educ., 467 F. Supp. 2d 414 (D. N.J. December 21, 2006):

It is important to note at the outset that the policy at issue is not one of suspicionless or random testing. Rather, the School District’s policy provides for testing only upon an individualized suspicion that a particular student is under the influence of drugs in school. Contrast Bd. of Ed. v. Earls, 536 U.S. 822 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)(school district policies authorizing random urinalysis drug testing of students). Therefore, the issue presented is whether the Fourth Amendment requires parental consent in every case before testing a student who is reasonably suspected of being under the influence of drugs while in school. The Court concludes that parental consent is not required by the Fourth Amendment.

. . .

The Court fails to see how lack of consent renders drug testing based on reasonable individualized suspicion unconstitutional. In T.L.O., the search of a student’s purse upon suspicion that she was violating her school’s smoking prohibition was held constitutional even though the student did not consent to the search. After a teacher took T.L.O. to the Assistant Vice Principal, the Vice Principal “asked T.L.O. to come into his private office and demanded to see her purse. Opening the purse he found a pack of cigarettes.” T.L.O., 469 U.S. at 328. Similarly here, Adam was taken to the Assistant Principal’s office based on the suspicion that he was under the influence, whereupon Adam’s mother was notified and arrangements were made to have Adam screened for drug use at Kennedy Hospital.

Moreover, the Third Circuit’s analysis in Hedges v. Musco, 204 F.3d 109 (3d Cir. 2000), supports the conclusion that lack of consent is not fatal to a reasonableness finding. In Hedges, parents of a New Jersey public high school student challenged the drug testing of their daughter pursuant to the school district’s drug testing policy. The student was observed by her teacher as having glassy, red eyes with dilated pupils and acting uncharacteristically. Hedges, 204 F.3d at 112-13. Based on these observations, the student was sent to the school nurse upon suspicion of being “high.” Id. After being examined by the nurse, the student was eventually taken to a hospital where a blood test and urinalysis were conducted. Id. at 113.

The police could rely on an anticipatory warrant that had a clear triggering point of word from an informant inside that the package had actually gone into the place to be searched. United States v. Serrano, 2006 U.S. App. LEXIS 31523 (10th Cir. December 20, 2006)* (unpublished).

Defendant had no standing to challenge the search of his mother’s car when he disclaimed control over it and had no key at the time of the search. United States v. Fisher, 213 Fed. Appx. 584 (9th Cir. 2006)* (unpublished).

The officers had probable cause to get a state search warrant, but it was not served at the time of the execution of the warrant. Even assuming this might be a constitutional violation, “it was not a ‘but-for cause’ of seizure of the evidence” under Hudson, so suppression is no remedy. The District Court suppressed based on analysis of Ninth Circuit cases that indicated that failure to comply with the formalities of warrant execution was a constitutional violation. United States v. Hector, 474 F.3d 1150 (9th Cir. January 25, 2007):

The causal connection between the failure to serve the warrant and the evidence seized is highly attenuated, indeed nonexistent, in this case. After the decision in Grubbs II, the only legitimate interest served by the presentation of a warrant appears to be the one we adopted in United States v. Gantt, 194 F.3d 987, 1004 (1999): “The purpose of handing the occupant … the warrant [under Rule 41(d)], like that of the ‘knock and announce’ rule is to head off breaches of the peace by dispelling any suspicion that the search is illegitimate” (quoting Stefonek, 179 F.3d at 1035) (internal quotation marks omitted). This interest does not implicate the seizure of evidence described in the search warrant nor would it be vindicated by suppression of the evidence seized.

Finally, the social costs of excluding relevant evidence obtained pursuant to a valid search warrant are considerable. In contrast, the deterrent benefit associated with suppressing the evidence is relatively small in the case of failure to present a copy of the warrant. As noted in Hudson, “[t]he value of deterrence depends upon the strength of the incentive to commit the forbidden act.” 126 S. Ct. at 2166. Assuming, as here, that a valid warrant has been obtained, the decision to present or not present the warrant bears little on the validity of the search. Indeed, the officers’ failure to present the warrant to Hector was not unreasonable in light of the department policy that explicitly stated that no presentation of the warrant was required. See supra note 2.

In light of the rationale of the exclusionary rule and the considerations set out by the Supreme Court in Hudson, we conclude that suppression was not an appropriate remedy in this case, and that the district court should have granted the government’s motion for reconsideration. The district court’s order for a new trial on Counts One and Three should be reversed.

Comment: The overwhelming majority of cases before this one and Hudson held that service of the warrant was a matter of notice to the target of the search and it seldom, if ever, rose to any level of prejudice to warrant suppression. Clients, however, always came in with high hopes that a failure to properly or timely serve a search warrant was going to extricate them from their predicament.

Officer had reasonable suspicion for prolonging detention because of various factors (numerous air fresheners in the car, three cellphones, improbable story about trip) and in the conversation the officer asked to talk some more and the defendant promptly consented to a search. The officer lifted the rear tire, and it was heavier than normal. When he got it out, he could hear hard objects rolling around inside. He cut the tire open and found packaged meth. The videotape showed the consent was voluntary. United States v. Flores, 474 F.3d 1100 (8th Cir. January 25, 2007).*

Apparent authority existed for mother’s consent to search her adult son’s bedroom. While, at the time of the search, she did not have a key in hand, she generally had access to the room and a key. She owned the building, and the son stayed there only at her sufferance. Lack of a key in hand is not determinative. Pratt v. United States, 214 Fed. Appx. 532 (6th Cir. 2007)* (unpublished).

Search warrant issued after two warrantless entries on to property near the border by Border Patrol agents had what the government admitted was false information in it. When that information was purged from the affidavit, probable cause still remained for issuance of the warrant. United States v. Stockton, 2007 U.S. App. LEXIS 1555 (9th Cir. January 22, 2007)* (unpublished).

Handcuffing plaintiff for obstructing an arrest of plaintiff’s son when the officer ran into plaintiff pursuing him through the house. The officer was unaware of a prior injury exacerbated by pulling his arms back. The use of force was “de minimus” [at least in police terms; but see what is de minimus], and summary judgment was granted for the officer. Hall v. Neal, 2007 U.S. Dist. LEXIS 5100 (M.D. Fla. January 24, 2007):

The Eleventh Circuit has repeatedly recognized that “the application of de minimis force, without more, will not support a claim for excessive force.” Durruthy, 351 F.3d at 1094-95 (finding de minimis force where police officer pulled plaintiff to the ground, pinned his arms behind him, kneed him in the back, and handcuffed him); see Vinyard v. Wilson, 311 F.3d 1340, 1349 (11th Cir. 2002) (finding de minimis force where officer grabbed plaintiff’s arm, jerked her out of a chair, handcuffed her behind her back, and later dragged her into the jail by either her shirt, arm or hair); Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000) (finding de minimis force where officer grabbed plaintiff from behind, threw him against a van, kneed him in the back, pushed his head into the side of a van, searched his groin, and handcuffed him); Jones v. City of Dotham, 121 F.3d 1456, 1460 (11th Cir. 1997) (finding “minor” amount of force where officers threw plaintiff against a wall, kicked his legs apart, required him to raise his arms above his head, and pulled a wallet from his pants, causing pain to plaintiff who received minor medical treatment in his arthritic knee after the incident). Further, “what would ordinarily be considered reasonable force does not become excessive force when the force aggravates (however severely) a pre-existing condition the extent of which was unknown at the time [to the officer].” Durruthy, 351 F.3d at 1095 n. 10.

Defendant Neal struck the Plaintiff in the back in an attempt to pass by the Plaintiff and through a doorway to apprehend the Plaintiff’s son, who had an outstanding arrest warrant for violent felony offenses. Defendant Neal, continuing his pursuit, reversed direction, turned in the doorway without looking behind, and again collided with the Plaintiff. After unsuccessfully pursuing the Plaintiff’s son, Defendant Neal returned to arrest the Plaintiff for obstructing an officer without violence. In effectuating a full custodial arrest and placing handcuffs on the Plaintiff, Defendant Neal pulled the Plaintiff’s hands behind his back and towards his neck in a way that caused him pain. Defendant Neal used no further force on the Plaintiff. While Defendant Neal may have re-injured the Plaintiff’s back by striking him during the initial pursuit, that re-injury does not make the force used excessive where, as here, there is no evidence or allegation that Defendant Neal was aware of the Plaintiff’s back condition. The force used in this case was clearly less than that determined to be de minimis in Durruthy, Vinyard, Nolin and Jones.

Defective address, 2926 v. 2629, was wrong in warrant but correct in affidavit, the correct address had been surveilled and that is where they went to search, and the other address did not exist. United States v. Giles, 2007 U.S. Dist. LEXIS 4169 (D. Neb. January 19, 2007).*

Probable cause and nexus were shown to the premises. Outside was parked a car involved in a shooting. United States v. Abraham, 213 Fed. Appx. 240 (4th Cir. 2007)* (per curiam).

Plaintiff’s allegation of unnecessary pepper spraying by an officer during an arrest was sufficient to survive summary judgment on the merits and qualified immunity as an excessive force claim. Brown v. City of Warren, 2007 U.S. Dist. LEXIS 4319 (N.D. Ohio January 22, 2007).

Despite a nolle pros of charges against plaintiff in her criminal case, the prior proceedings included an admission of guilt, and that defeated her malicious prosecution claim under the guise of a Fourth Amendment claim. Shilling v. Brush, 2007 U.S. Dist. LEXIS 4330 (M.D. Pa. January 22, 2007).

While defendant was arrested at gunpoint, he made unsolicited statements and twice consented to a search. United States v. Woods, 2007 U.S. Dist. LEXIS 4218 (D. Idaho January 19, 2007).

Witness’s testimony derived from an illegal search affecting the witness did not implicate the defendant’s Fourth Amendment rights, so that testimony will not be excluded at trial. United States v. Defonte, 2007 U.S. Dist. LEXIS 4279 (S.D. N.Y. January 19, 2007).*

Domestic violence and hostage report was exigent circumstances for an entry [and not belaboring the obvious]. United States v. Leon, 2007 U.S. Dist. LEXIS 4291 (S.D. N.Y. January 19, 2007).*

The affidavit for search warrant was based on informant hearsay without a reference to the informant’s reliability, but it was sufficient and met the standards for internal corroboration of the hearsay previously articulated by that court. United States v. Pulk, 2007 U.S. Dist. LEXIS 5639 (D. Me. January 24, 2007):

Even if that were not the case, the defendants’ attack on paragraphs 3-8 of the affidavit would not succeed. They contend that these paragraphs do not present sufficient information to allow the court to determine whether the statements of informants reported in those paragraphs are reliable and that “most of the information is stale” because it was received nine or more months before the application was made. Joint Motion at [8]-[9]. “When an affidavit relies upon the credibility of informants to demonstrate probable cause for the issuance of a warrant the informants’ credibility can be established in multiple ways.” United States v. Fournier, 2002 WL 31414112 (D. Me. Oct. 23, 2002), at *1. Any and all of the following factors may be considered:

1. Consistency among independent reports.
2. Declarations against penal interest.
3. Consistency with information provided by “ordinary citizens” (such as complaints by neighbors that an individual was cultivating marijuana)–a type of report that enjoys special stature since information provided by ordinary citizens has particular value in the probable cause equation.
4. Corroboration by external data.
5. Self-authentication through specificity and detail.

Id. at *1-*2 (citation and internal punctuation omitted). When these factors are considered, “an informant’s tip can establish probable cause even though the affidavit does not contain information about the informant’s past reliability.” United States v. Greenburg, 410 F.3d 63, 67 (1st Cir. 2005).

Defendant’s pro se claim in response to his lawyer’s Anders brief that his wife could not have consented because she was under the influence of drugs had no support in the record. As to the claim the informant was not believable for issuance of a search warrant, there was corroboration by the police officer of what details were subject to corroboration. United States v. Howard, 216 Fed. Appx. 463 (6th Cir. 2007)* (unpublished).

Civil case over search at school based on student’s smell of marijuana was reasonable under the circumstances. KW v. Metropolitan Sch. Corp., 2007 U.S. Dist. LEXIS 5625 (S.D. Ind. January 24, 2007).*

Civil case over alleged false arrest and excessive force brought a motion for summary judgment from the defendant which the plaintiff did not respond to. The court found a factual basis for the reasonableness of the arrest and use of force and dismissed the case. Young v. Cavanaugh, 2007 U.S. Dist. LEXIS 5627 (S.D. Ind. January 24, 2007).*

Officers had objective cause for stop as they observed him open a container while driving. Cause for a search arose from officers seeing rolling papers and smelling burnt marijuana. The automobile exception has no separate exigency requirement. United States v. Woods, 216 Fed. Appx. 931 (11th Cir. 2007)* (unpublished).

Officer who believed that the defendant was DUI on marijuana had the ability to search his person for the marijuana on exigent circumstances. State v. Campbell, 2006 Iowa App. LEXIS 1896 (December 28, 2006).*

(This is it for today, which balances out some of busy last week.)

(More postings later today; I have a hearing to prepare for.)

Prosecutor did not have absolute immunity for procuring a search warrant for a prosecution under statute defining an unconstitutional crime. The target was being investigated for a possible violation of Colorado’s criminal libel statute [which was patently unconstitutional; Arkansas thankfully repealed its many years ago after the criminal slander statute was held unconstitutional], and after the search, the target sued and obtained a preliminary injunction against the prosecution. The DA dropped the investigation, and the case on the merits of the statute became moot, but the search case did not. The District Court erred in dismissing the case for absolute immunity against the DA, and the 10th Cir. remanded for a determination of how qualified immunity will apply. Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007).

Federal law that requires even probationers convicted of non-violent crimes to be tested for DNA is constitutional. United States v. Amerson, 483 F.3d 73 (2d Cir. 2007).

Informant’s report that defendant, a probationer, was one of several men passing around young girls for purposes of sexual abuse, led to a probation search. Defendant’s probation search found defendant in his bedroom with two underage girls. Defendant argued that New York’s probation law had been violated in the search, but the court found the search was with reasonable suspicion under the Fourth Amendment. United States v. Chirino, 483 F.3d 141 (2d Cir. 2007).*

The Ninth Circuit rejects en banc review of Sanchez v. County of San Diego, 464 F.3d 916 (9th Cir. 2006), originally posted here, that welfare home visits were constitutional under Wyman v. James. Sanchez v. County of San Diego, 483 F.3d 965 (9th Cir. 2007) (dissent from denial of rehearing en banc). Seven judges voted to grant rehearing en banc, contending that Wyman did not control and Fourth Amendment jurisprudence had changed enough over the intervening 36 years to require it be revisited under the facts of this case and the later developed “special needs” exception. In a separate heading, not included here, the dissenters call the case an “assault on the poor.”

The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308 (1997). Inexplicably, the majority opinion holds that highly intrusive, unannounced suspicionless home visits are not “searches” under the Fourth Amendment. Sanchez, 464 F.3d at 920. The Supreme Court has repeatedly held, however, that any conduct by a government agent that intrudes upon a person’s reasonable expectation of privacy is a search or seizure under the Fourth Amendment. See, e.g., Katz v. United States, 389 U.S. 347, 359 (1967); Smith v. Maryland, 442 U.S. 735, 739-40 (1979); Kyllo v. United States, 533 U.S. 27,33 (2001). No matter how minor the intrusion, the conduct must still be scrutinized under the Fourth Amendment. A minor intrusion will militate toward a judicial finding of reasonableness under the Fourth Amendment, but it does not exempt the conduct from all scrutiny or remove the conduct from the definition of a “search.” See Delaware v. Prouse, 440 U.S. 648, 653-54 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555-56 (1976). Fourth Amendment searches occur when “the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo, 533 U.S. at 33.

The majority relies on Wyman to hold that home visits related to welfare programs are never “searches.” Under this rubric, we would not even need to determine whether the visits are reasonable or whether there is a special need for the enforcement as is required under a Fourth Amendment analysis (and thoroughly analyzed in Judge Fisher’s dissent). Instead, the majority simply denies the plain fact that these highly intrusive home visits and walk-throughs looking for evidence of welfare fraud or other wrong doing are “searches.” Sanchez, 464 F.3d at 920.

The majority couches its opinion in terms of upholding precedents, but it hits at the core of established Fourth Amendment protections. The Supreme Court has described such rights as “basic to a free society.” Wolf v. Colorado, 338 U.S. 25, 27 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1981). In fact, the Court has specifically pointed to the fundamental right we all have to privacy in our own homes. Kyllo, 533 U.S. at 33; see also Payton v. New York, 445 U.S. 573, 586 (1980). An individual’s home lies at the zenith of privacy interests. See, e.g., United States v. Scott, 450 F.3d 863, 871 (9th Cir, 2006) (as amended); Payton, 445 U.S. at 586 (“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971)).

The majority makes much of the purportedly consensual nature of the Project 100% searches–asserting that they lower the plaintiffs’ expectation of privacy and make the intrusive character of the “walk through” acceptable. Sanchez, 464 F.3d at 927. But there can be no true consent here. Applicants are not given notice of when the visit will occur; they are not informed of their right to withhold consent; they are told the visit is mandatory; and they are aware of the severe consequences of refusing the search.

It is not unreasonable under the Fourth Amendment for officers to draw and point their weapons at innocents while trying to diffuse a domestic violence situation. The plaintiffs’ subjective motives are irrelevant (“Thus, just as we objectively examine a police officer’s conduct under the Fourth Amendment, Brigham City, Utah v. Stuart, ___ U.S. ___, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650 (2006), the Reeves’ subjective motives behind their failure to submit are irrelevant.”). Reeves v. Churchich, 484 F.3d 1244 (10th Cir. 2007).*

The officer had justification for the stop and then reasonable suspicion to patdown three people in a vehicle stopped at 2:30 a.m. for officer safety. The suppression order was reversed. United States v. Rice, 483 F.3d 1079 (10th Cir. 2007):

The record discloses a number of facts justifying the pat-down search:

(1) Rice was one of three people in a car driving around a high crime area of Tulsa at 2:30 on a Tuesday morning, a time when there were no other cars or people around;

(2) the car proceeded along two residential blocks, slowing intermittently in a manner that an observing officer thought consistent with preparing for a burglary or drive-by shooting;

(3) the car did not have a tag light, which in the observing officers’ experience could indicate a desire to avoid identification;

(4) the passenger in the backseat had given Weakley what he, based on his experience, believed were false names intended to conceal her true identity;

(5) the computer check Weakley ran confirmed [*14] his suspicions about the back seat passenger when his search revealed no information on the names she gave;

(6) the computer check identified Rice as “known to be armed and dangerous”;

(7) Rice had a lengthy and violent criminal record; and

(8) Rice immediately assumed the position for a weapons search upon exiting the car.

Taken together, these facts support Weakley’s belief that a pat-down search was justified for his own safety.

In reaching a contrary conclusion, the district court’s decision discounted the totality of the information known to the officers by focusing on the facts in isolation. For example, the court emphasized two aspects of the stop–Rice’s criminal history and the car’s “erratic driving in a high crime area”–in concluding that Officer Weakley acted without reasonable suspicion. The court found that suspicious movements in a high crime area by a person with a criminal history do not amount to reasonable suspicion sufficient to justify an investigative detention, relying on United States v. Davis, 94 F.3d 1465 (10th Cir. 1996).

“A Fourth Amendment claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim in state court. Stone v. Powell, 428 U.S. 465, 481-82, 96 S. Ct. 3037, 3046-47 (1976). The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).” Petitioner spent 48 pages of his habeas petition alleging the unconstitutionality of a search he did not challenge. Mancus v. Pope, 2007 U.S. Dist. LEXIS 29678 (E.D. Cal. April 20, 2007).*

The Holy Land Foundation was subject to seizure of assets and a search by the government in Decemer 2001 as a terrorist supporting organization, and the search of property and the seizure of assets were valid under the Fourth Amendment. United States v. Holy Land Found., 2007 U.S. Dist. LEXIS 32293 (N.D. Tex. May 2, 2007):

On December 4, 2001, in accordance with this terrorist designation and the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701, et seq., the Office of Foreign Asset Control (“OFAC”), a division of the Department of Treasury, blocked HLF’s assets. Id. The same day OFAC searched HLF’s offices in California, Illinois, New Jersey, and Texas and seized physical property and assets in those locations. Id.; Government’s Response to Defendants’ Joint Motion and Memorandum to Suppress Evidence (“Government’s Response”) at 2.

OFAC based its seizures entirely on its authority derived from the IEEPA, relevant executive orders, and the blocking notices pertaining to HLF’s assets; it did not obtain a search warrant or other judicial approval before engaging in the searches and seizures. Defendant’s Motion at 5. In April 2002, the FBI obtained warrants from Magistrate Judge Stickney of this court to search HLF property that had been previously seized by OFAC.

. . .

As an initial matter, the government argues that the Fourth Amendment was not implicated by OFAC’s conduct because no investigative action was undertaken until the FBI obtained a warrant in April 2002. Id. at 2-3. The government offers no authority for this contention, and the court finds it unpersuasive. The Fourth Amendment not only prohibits the unauthorized search of property; it also prohibits unauthorized seizure–an action clearly taken by OFAC.

Whether an action violates the Fourth Amendment, however, is a different question from whether the action simply implicates the amendment’s protections. In this case, the government contends that OFAC did not violate the Fourth Amendment because no warrant was required for OFAC to seize the HLF’s property. This argument is premised on the fact that OFAC derives its authority to seize assets from executive orders and the IEEPA. Id. at 7-9.

. . .

The defendants have admitted that the IEEPA applies to them. See Defendant’s Motion at 7-8. They argue, however, that a “nonprofit humanitarian organization is not a ‘closely regulated’ industry” as would be required to support a warrantless search. Id. at 10, citing New York v. Burger, 482 U.S. 691, 715 (1987). In Burger, the Supreme Court found that an administrative scheme allowing inspectors to review the records and inventory of vehicle junkyard operators to ensure that stolen vehicles are not being improperly dismantled did not violate the Fourth Amendment. Burger, 482 U.S. at 715-16. The court found that the statute satisfied an important administrative purpose and that it was not unconstitutional simply because inspectors regularly discovered other criminal behavior when conducting statutorily authorized inspections. Id.

While the court agrees with the defendants that nonprofit humanitarian organizations are not a closely regulated industry like automotive junkyards or arms dealers, the court believes a more relevant categorization applied to the HLF at the time OFAC executed the blocking order and seized property belonging to the defendants–it was a specially designated global terrorist. See Defendant’s Motion at 3. Moreover, the IEEPA clearly gave the defendants notice that the government could use any means specified by the President to “investigate, block … regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property” in which the HLF had an interest. 50 U.S.C. § 1702(a)(1)(B). The court cannot agree with the defendants’ assertion, see Defendant’s Motion at 10, that OFAC’s seizure was not based on the government’s regulation of the HLF’s activities. Indeed, the court finds that OFAC’s seizure was based entirely on the government’s regulation of specially designated terrorist organizations in accordance with Executive Orders 12947 and 13224 and the IEEPA. See id. at 7.

Furthermore, even if the court were to conclude that OFAC’s actions violated the Fourth Amendment–which they do not–the defendants have not shown that the exclusionary rule should apply to the evidence obtained from OFAC’s seizure. In Arizona v. Evans, 514 U.S. 1, 12-14 (1995), the Supreme Court noted that the exclusionary rule does not apply to every violation of the Fourth Amendment. The court held, “exclusion is appropriate only if the remedial objectives of the [exclusionary] rule are thought most efficaciously served.” Id. at 13-14.

The standard for qualified immunity is “arguable probable cause,” not probable cause. Taking the facts most favorably to the officer, there was neither in this case. Skop v. City of Atlanta, 485 F.3d 1130 (11th Cir. 2007):

While an officer who arrests an individual without probable cause violates the Fourth Amendment, this does not inevitably remove the shield of qualified immunity. We do not automatically hold an officer liable for making an arrest that, when seen with the benefit of hindsight, turns out not to have been supported by probable cause. As the Supreme Court observed in Anderson v. Creighton, 483 U.S. 635, 641 (1987), “it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials … should not be held personally liable.” Thus, even if we determine that the officer did not in fact have probable cause, we apply the standard of “arguable probable cause,” that is, whether “reasonable officers in the same circumstances and possessing the same knowledge as the Defendant[] could have believed that probable cause existed to arrest.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002) (emphasis added, quotation marks omitted). Indeed, this is “all that is required for qualified immunity to be applicable to an arresting officer.” Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001) (per curiam). This standard recognizes that law enforcement officers may make reasonable but mistaken judgments regarding probable cause but does not shield officers who unreasonably conclude that probable cause exists.

Whether an arresting officer possesses probable cause or arguable probable cause naturally depends on the elements of the alleged crime, Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004), and the operative fact pattern. Here, the officer suggests that there are two possible crimes for which Skop could be arrested: obstructing a police officer in the lawful discharge of his official duties, and refusing to obey an order from an officer directing traffic. If Officer Brown possessed probable cause or arguable probable cause to arrest Skop for either, he is entitled to qualified immunity. We take each in turn.

Where no finding was made on part of plaintiff’s motion to suppress in his state court conviction or no evidence was derived from the search that was used as evidence, collateral estoppel did not bar his federal action. Shales v. General Chauffeurs, Salesdrivers & Helpers Local Union No. 330, 2007 U.S. Dist. LEXIS 32268 (N.D. Ill. May 2, 2007).*

Fire scene search: The fire in defendant’s house was confined to the second floor, but water went everywhere and was running down to the first floor and basement. Fireman checked the building to protect against water damage and electrical problems from the water and for a continued source of CO2. In the basement, the fireman found 1250 pounds of fireworks which were unlawfully possessed under federal law. United States v. Buckmaster, 485 F.3d 873 (6th Cir. 2007):

Here, however, the firefighters did not leave and then later return, as in Tyler or Clifford. Their initial efforts were directed at extinguishing the fire in the bedroom; then their efforts turned toward ensuring that the house did not sustain electrical or structural damage owing to the water that had been released in the bedroom, and toward ensuring that carbon monoxide levels were at an acceptable level. All this appears to have lasted less than one hour. Tr. at 35 (Perko Test.); Tr. at 60 (Byers Test.). Nothing in the express language of Tyler and Clifford, nor in what can be inferred therefrom, suggests that it is unreasonable for firefighters to act in this fashion, even if it involves making warrantless entries into some of the rooms of the house not directly affected by smoke or fire. If the government provided unrefuted testimony that water was “basically raining in the basement and coming out of outlets and such things,” we fail to see how Buckmaster can claim that it was unreasonable for Madison Township firefighters to stem this flow of water and prevent it from causing electrical shorts or other potential electrical dangers.

It seems an unremarkable proposition that if firefighters are aware of lurking electrical dangers resulting from their efforts to put out a fire in a home–imagine, for example, a homeowner who returns to his salvaged house and attempts to plug an appliance into a moist socket, especially an old socket not fitted with a ground fault circuit interrupter–they should neither have to obtain a warrant nor the express permission of the homeowner in order to alleviate such dangers, especially when they do so, as here, immediately after the fire has been extinguished. This temporal caveat is important, for it makes all the difference in assessing reasonableness. In Clifford, for example, when the arson investigators returned to the house some five hours after the blaze had been extinguished, they were met by a work crew that was not only boarding up the house but was also “pumping some six inches of water out of the basement.” 464 U.S. at 290. Had the fire officials in Clifford attempted to justify their reentry at this point on grounds that they wished to ensure the electrical safety of the house (an argument which they wisely did not make), such justification would have been utterly unreasonable and pretextual, because they could of course have taken such action five hours earlier.

Fact dispute denied summary judgment and qualified immunity in case where the plaintiff alleged that she was stopped and searched based on a domestic dispute to aid her husband’s cause the day before a child custody hearing. Piers v. Higgs, 2007 U.S. Dist. LEXIS 33006 (W.D. Mich. May 4, 2007):

Plaintiff has sued for violation of her Fourth Amendment right to be free from unreasonable searches, arrest and prosecution pursuant to 42 U.S.C. § 1983. Plaintiff has alleged that Defendant VandenBerg and Defendant Rickey Lynn Higgs conspired to violate § 1983 by planting drugs and a partially full bottle of wine in her car and affecting an arrest the night before a scheduled child custody hearing. Plaintiff further alleges a state claim of malicious prosecution.

. . .

As detailed above, Plaintiff has alleged sufficient facts to show that, if true, there was a violation of her constitutional right to be free from an unreasonable search and seizure under the Fourth Amendment of the Constitution. There is no question that if Defendant VandenBerg initiated a traffic stop without probable cause, such an action would violate the “clearly established law” under the Fourth Amendment. See Ferguson, 8 F.3d at 391; see also Terry v. Ohio, 392 U.S. 1 (1968). Further, examining the record in a light most favorable to Plaintiff, there are sufficient facts which raise a question as to whether Defendant VandenBerg had probable cause to arrest or prosecute Plaintiff after the search of her vehicle. Plaintiff apprised Defendant VandenBerg of the fact she was due in court the next day over a custody dispute with her soon-to-be ex-husband. This fact called into question the motivation and credibility of Defendant VandenBerg’s “source” regarding Plaintiff’s drug use and habit, which information was allegedly the only reason he was following Plaintiff on that occasion. In light of these facts, Defendant VandenBerg’s claim of qualified immunity must be denied.

Claim preclusion of a nuisance case in state court barred a federal case on the same facts. Cornell v. City of Cleveland, 2007 U.S. Dist. LEXIS 33063 (N.D. Ohio May 4, 2007).*

Defendant’s evasive conduct in dealing with the officers and her drug history justified a dog sniff when she was stopped. State v. Stombaugh, 2007 MT 105, 157 P.3d 1137 (2007).*

Officers received an anonymous letter that defendant (who was involved in a marital dispute) had a meth lab at his business, where he was staying in an apartment. Officers showed up, but he was not there, and they obtained consent over the phone from him to search the business. In the course of the search, they found an apartment. His consent did not extend to the apartment, and the district court erred in concluding otherwise. Wilson v. Commonwealth, 2007 Ky. App. LEXIS 201 (July 6, 2007):

Certainly there were no circumstances that would justify scaling a wall to obtain access to Wilson’s personal space upstairs. Second, there was no other proof or confirmation regarding the scope of Wilson’s consent, either from another police officer or from a signed consent form. Third, if Wilson had consented to a search of the entire building over the telephone, there would have been no need for Det. Conley to obtain a search warrant once they found the suspected drugs and paraphernalia in the cigar box in Wilson’s living area. While Det. Conley testified that consent is sometimes withdrawn, necessitating a search warrant, it is undisputed that Wilson was not there to withdraw his consent. Therefore, there was no need to seek a warrant at that particular time. The Commonwealth’s argument that Wilson was cooperative upon his return has no bearing on the extent of his initial consent, as the police had obtained a warrant by that time and Wilson was complying with the terms of the warrant.

Based upon the totality of the circumstances, it is clear that the Commonwealth did not prove by a preponderance of the evidence that Det. Conley obtained a valid consent to search the entire building.

On remand from United States v. Buckles, 137 Fed. Appx. 950 (9th Cir. 2005), “The district court found that Buckles’ testimony that he had objected to the search was not credible. Rather, Buckles ‘conveyed [to the agents] the message that consent was not his to give; that it was his sister’s car’ and ‘at least by implication that, if consent to search the car was to be given, it had to be obtained from, the sister.’ The court concluded that under the ‘totality of the circumstances,’ based on the information known to the agents at the time of the search, Weinberger had apparent authority to consent to the search of the car. [¶] The district court’s factual findings are not clearly erroneous, and we affirm.” United States v. Buckles, 2007 U.S. App. LEXIS 4054 (9th Cir. February 12, 2007)* (unpublished).

Defendant told the police that there were shooting victims in his house. This was sufficient for the initial entry. Further entry was invalid, but not barred because of inevitable discovery. (Defendant waived the search issue in the case, but the court decides it anyway in case of further appellate review.) State v. Anderson, 2007 Tenn. Crim. App. LEXIS 535 (July 6, 2007):

To assist possible further appellate review, however, we mention that England led the police to the scene where the shooting occurred, and the police officers found McGhee’s body. The defendant and Canady had not been apprehended, and officers observed movement in the house. The evidence in the record does not preponderate against the trial court’s statement that exigent circumstances existed to justify the warrantless entry into the defendant’s home.

Of course, however, once Officer Lee determined no suspects were present in the home, the exigency ended. The officers who subsequently entered without a warrant to collect evidence did so in violation of the Fourth Amendment. Nevertheless, because of the inevitable discovery doctrine the evidence was admissible. Under the inevitable discovery doctrine, illegally obtained evidence is admitted by the court when the evidence would have inevitably been discovered by lawful means. See State v. Patton, 898 S.W.2d 732, 735 (Tenn. Crim. App. 1994) (citing Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)). Here, England informed police officers that the shooting occurred at this house, 2813 East 5th Avenue, and the police found a dead body in the house’s driveway. Under these circumstances, the police officers had probable cause to obtain a search warrant.

The Ninth Circuit held Friday in United States v. Forrester, 05-50410 (9th Cir. July 6, 2007), that warrantless monitoring of the to/from addresses of e-mail messages, the IP addresses of websites visited, and the total amount of data transmitted to or from an account is constitutionally indistinguishable from the pen register in Smith v. Maryland:

Neither this nor any other circuit has spoken to the constitutionality of computer surveillance techniques that reveal the to/from addresses of e-mail messages, the IP addresses of websites visited and the total amount of data transmitted to or from an account. We conclude that these surveillance techniques are constitutionally indistinguishable from the use of a pen register that the Court approved in Smith. First, e-mail and Internet users, like the telephone users in Smith, rely on third-party equipment in order to engage in communication. Smith based its holding that telephone users have no expectation of privacy in the numbers they dial on the users’ imputed knowledge that their calls are completed through telephone company switching equipment. 442 U.S. at 742. Analogously, e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that these messages are sent and these IP addresses are accessed through the equipment of their Internet service provider and other third parties. Communication by both Internet and telephone requires people to “voluntarily turn[] over [information] to third parties.” Id. at 744.

Second, e-mail to/from addresses and IP addresses constitute addressing information and reveal no more about the underlying contents of communication than do phone numbers. When the government learns the phone numbers a person has dialed, it may be able to determine the persons or entities to which the numbers correspond, but it does not know what was said in the actual conversations. Similarly, when the government obtains the to/from addresses of a person’s e-mails or the IP addresses of websites visited, it does not find out the contents of the messages or the particular pages on the websites the person viewed. At best, the government may make educated guesses about what was said in the messages or viewed on the websites based on its knowledge of the e-mail to/from addresses and IP addresses—-but this is no different from speculation about the contents of a phone conversation on the basis of the identity of the person or entity that was dialed. The distinction between mere addressing and more content-rich information drawn by the Court in Smith and Katz is thus preserved, because the computer surveillance techniques at issue here enable only the discovery of addressing information.

The San Francisco Chronicle article is here.

A motel room occupant noted a strange smell coming from another room, and he called the police. They determined that it was the smell of a meth lab, and that was exigent circumstances to enter. The defendant was unconscious inside from inhaling the chemicals. State v. Meeks, 2007 Tenn. Crim. App. LEXIS 542 (July 10, 2007):

In accordance with the reasoning of Castile, we conclude that a warrantless search of the Defendants’ hotel room was proper. Our review of the record convinces us that the Defendants’ actions did indeed present an immediate threat to public safety. An occupant of the hotel called the authorities complaining of a smell that she suspected was associated with the manufacture of methamphetamine, possibly coming from the room next door. Officer Caldwell arrived on the scene, spoke with the complainant, and detected the odor coming from Room 110. Officer Peterson described the smell as “[s]trong[,]” and Corporal Gray noted a “very strong” odor emanating from the room. When the door was opened, a “chemical cloud” came out of the room. “Air suits” were required before Officer Caldwell and Coroporal Gray could reenter the room to remove the unconscious Defendant Meeks from the room. According to Officer Caldwell, the situation was “[v]ery, very dangerous[,]” and this laboratory was “more dangerous” than usual. The occupants of the adjoining rooms were evacuated following entry into Room 110. Officer Caldwell described the dangers to the occupants: “They faced inhaling toxic chemicals. They risked the danger of an explosion and fire. It could be fatal.” A “haz-mat” team was called to the scene. Both of the Defendants were taken to the hospital, and Defendant Meeks was hospitalized for several days following this incident. Furthermore, the officers involved were experienced with cases involving the manufacturing of methamphetamine. Therefore, we conclude that probable cause to search was present and accompanied by exigent circumstances–the dangers associated with the active production of methamphetamine in a hotel room.

Citizen informant’s tip to police led to stop and defendant’s conduct was suspicious during the stop. United States v. Santon, 2007 U.S. Dist. LEXIS 49569 (D. Neb. July 10, 2007).*

Stop for a traffic offense had the added suspicion of a DEA wiretap talking about transporting cocaine. The defendant’s admission he was an illegal alien all added up to probable cause for a search. United States v. Tovar-Aldaco, 2007 U.S. Dist. LEXIS 49727 (E.D. Mo. July 10, 2007).*

Dunaway claim of unlawful arrest leading to confession was barred by Stone v. Powell. Ramdeo v. Phillips, 2007 U.S. Dist. LEXIS 49483 (E.D. N.Y. July 6, 2007).*

Subpoena to provide handwriting examplars is not a seizure. In re Grand Jury Subpoena, 2006 U.S. Dist. LEXIS 96459 (M.D. Fla. February 8, 2006).*

The Ninth Circuit held in United States v. Abbouchi, 05-50962 (9th Cir. July 13, 2007), that UPS’s Louisville KY sorting hub is the “functional equivalent of the border” when a package arrived there from outside of the country:

We have recognized that comparison of absolute time and spatial differences alone is not enough to distinguish between a search at the border’s functional equivalent and an extended border search. Rather, we also look to whether the search, as was true of Abbouchi’s package, occurred at the last practicable opportunity before its passage over the international border. Thus, in Almeida-Sanchez, the Supreme Court noted that “a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City” would be at the functional equivalent of the border. See 413 U.S. at 273. Similarly, in Duncan, we held it would be “unreasonable” to require federal agents to wait until a suspect boards his airplane to conduct a search. See 693 F.2d at 977. Rather, it was enough that the defendant had checked his luggage, obtained his boarding pass, passed through security, and embarked on the ramp to his flight because these acts “manifest[ed] a definite commitment to leave the United States,” and the search occurred “in reasonable temporal and spatial proximity to the departure.” See id.

Stipulated facts before the court support reasonable suspicion for the initial stop of the defendant. United States v. Smith, 2007 U.S. Dist. LEXIS 50485 (N.D. Ohio July 12, 2007).*

Comment: This is a correct holding, despite the list serv stuff I’ve seen about it.

Court found exigent circumstances [not discussing that they potentially were of their own making] for a warrantless entry to prevent destruction of oxycontin when they learned that the defendant figured out most were counterfeit. Defendant officers’ motion for summary judgment granted. Lowe v. Henson, 2007 U.S. Dist. LEXIS 50563 (E.D. Tenn. July 11, 2007):

The agents were concerned that once Lowe, Jr. used the counterfeit pills, he would realize the police are on his trail and destroy the evidence, see United States v. Santana, 427 U.S. 38, 43 (1976), or that, after receiving the 200 doses of oxycontin, he would quickly “flip” the drugs for cash in order to make the next purchase from Agent Joyner. The case before the Court is not a situation where the agents could have impounded an area, such as a locker, until a warrant was obtained, see People v. Vogel, 58 Ill. App. 3d 910 (3rd Cir. 1978), or where the occupants could be observed so that evidence would not be destroyed. See Toles v. Friedman, 238 F.3d 424 (6th Cir. 2000) (Table). The plaintiffs were in possession of evidence that could be destroyed easily. Agents had to act promptly to effect an arrest and preserve the evidence.

2255 for IAC for defense counsel failing to file a motion to suppress fails where the defendant cannot show in his pleadings that the underlying claim was meritorious. Kadlec v. United States, 2007 U.S. Dist. LEXIS 50564 (E.D. Wis. July 11, 2007).*

A computer repair technician was recognized in a 2-1 decision by the Eighth Circuit to be able to distinguish between child porn and non-child porn [sub silentio recognizing “I know it when I see it.”]. The computer tech was a neutral third party to report for inclusion in an affidavit. United States v. Grant, 06-3649 (8th Cir. July 13, 2007). The affidavit stated in part:

Eng summarized the information he had gathered from Sundstrom, specifically pointing out that Sundstrom had told him that “Lewis had been a Computer technician for a long time and ha[d] worked on several home computer[s]” and that Lewis had “found pornography on several computers but believe[d] that what he found on the [Grants’] computer to be child pornography.”

The court found:

We agree with the District Court that Lewis, by virtue of his experience as a computer repairman, was “uniquely able, and properly motivated, to distinguish between child pornography and lawful images.” Mem. & Order, May 24, 2006, at 20. Sundstrom emphasized to Eng that the images Lewis stated that he had observed on the Grants’ computer were disturbing and unlike any pornographic images Lewis had observed on computers in the past. Lewis distinguished between “adult” and “child” pornography and specifically characterized the images on the Grants’ computer as child pornography. See e.g., United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993) (“Most minors look like minors and most adults look like adults ….”). Eng’s affidavit in support of the search warrant related each of these facts to Judge Turnbull, and we conclude that the affidavit was sufficient to establish probable cause for the issuance of the search warrant.

Thus, the affidavit was not bare bones and the good faith exception would save it anyway.

Judge Arnold in dissent found the computer tech’s information merely conclusory and insufficient to support issuance of the warrant or the good faith exception:

The affidavit in this case provides no detail with respect to what Mr. Lewis actually saw. The only information in the affidavit about the images is as follows: “Sundstrom advised Lewis had been a Computer technician for a long time and has worked on several home computer processing units. Sundstrom advised Lewis has found pornography on several computers but believes that what he found on the Grant’s [sic] computer to be child pornography.” The sum of this information is insufficient to support the issuance of a search warrant because it is too conclusory and because it is hearsay.

I am unable to join the court’s assertion that Mr. Lewis was uniquely able to distinguish between child pornography and lawful images due to his experience as a computer repairman. We have no information whatever to indicate that Mr. Lewis had any expertise in what constitutes child pornography.

Comment: When you read the affidavit for the search warrant, the first issue that jumps out at you is the conclusory nature of the information in the affidavit which is rubberstamped by the district court and court of appeals as sufficient to show probable cause. There is no description at all of what was seen. Judge Arnold has the better argument here, but, being a practitioner in the Eighth Circuit, I know that rehearing en banc is not going to happen.

The NY Times reports today on the use of cellphone location data, routinely kept by cellphone provider computers, to link defendants to crime scenes. When the Trill of a Cellphone Brings the Clang of Prison Doors by Anemona Hartocollis.

Examining cellphone data is a technique that has moved from being a masterful surprise in trials to being a standard tool in the investigative arsenal of the police and prosecutors, with records routinely provided by cellphone companies in response to subpoenas. Its use in prosecutions is often challenged, for privacy reasons and for technical reasons, especially when the data comes during the morning or evening rush, when circuits are crowded and calls can be redirected to other towers. But it is often allowed and is used by both prosecutors and defense attorneys to buttress their cases.

“It’s one of the most important developments in technology in the courtroom in the last five years,” said Mark J. Geragos, a Los Angeles defense lawyer known for his celebrity clients, who challenged cell tower data while defending Scott Peterson, a Modesto, Calif., fertilizer salesman sentenced to death in 2005 for killing his pregnant wife, Laci.

The only way one can claim privacy grounds is if the state constitution or some statute supports the argument because the Fourth Amendment won’t under Smith v. Maryland.

As the article notes, cellphone tower data is not uniformly correct. Cellphone experts can testify to the possibility that calls skipped towers or were redirected, but, it has to be consistent with the defense as to which tower the call likely skipped to.

ABC News reported today on their “Tech Bytes” segment that police officers have started carrying cameras on their persons to record all interaction with suspects. This is hardly news. I did a Google search, and, according to CNET, this was reported by them in November 2006. SWAT Teams have been wearing them for years to record their entries.

This should not be surprising. When the UK first started it a year ago as reported here and here, the cost was fairly significant, at least there. There is even a post of a motorcyclist who had one eluding the police. Here, we’ve seen sporting events for years where participants wore cameras. Google “helmet cams” or add “police” to the search, and you’ll see the number of suppliers of these cameras. One touts supplying NASA so the Space Shuttle crew’s work could be monitored by Ground Control.

It is no longer news. The question for criminal lawyers is whether these digital images are turned over in discovery. A related question is whether the police even tell the prosecutor. The video would show activities and statements of the defendant and would be discoverable as a matter of course.

Also, surveillance equipment does not require that the camera even be obvious; it can be a small, unobstrusive or nearly invisible camera on the body.