Under the Maritime Transportation Security Act of 2002 (“MTSA”), 46 U.S.C. §§ 70101-70119, the Secretary of Homeland Security enacted regulations via the Coast Guard governing searching of cargo and vehicles on ferry boats. A search of a car on a ferry crossing Lake Champlain from NY to VT was reasonable. Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. November 29, 2006) (link; case 05-1835):

Based on this [vulnerability] assessment, the Coast Guard determined that certain maritime vessels, including those that weigh more than 100 gross register tons or are licensed to carry more than 150 passengers “are at a high risk of a transportation security incident.” Id. at 39,246; see also 33 C.F.R. § 104.105(a) (codifying the Coast Guard’s above determination). Under the MTSA implementing regulations, vessels that fall into the high-risk category are required to adopt certain security measures to “[d]eter the unauthorized introduction of dangerous substances and devices, including any device intended to damage or destroy persons, vessels, facilities, or ports.” 33 C.F.R. § 104.265(a)(1). To determine what security measures are required for such high-risk vessels, a vessel owner must prepare a Vessel Security Assessment (“VSA”), which is “an analysis that examines and evaluates the vessel and its operations taking into account possible threats, vulnerabilities, consequences, and existing protective measures, procedures and operations,” id. § 101.105, by collecting specified background information and carrying out an onsite survey of the vessel to check existing protective measures, procedures, and operations for a variety of factors. Id. § 104.305(a)-(b). When complete, the VSA is used by the vehicle’s owner or operator to devise a Vessel Security Plan (“VSP”), which is a “plan developed to ensure the application of security measures designed to protect the vessel and the facility that the vessel is servicing or interacting with.” Id. § 101.105. The VSP must be submitted to the Coast Guard for review and approval. Id. § 104.410. Owners of a vessel operating under a VSP must “[s]creen persons, baggage (including carry-on items), personal effects, and vehicles for dangerous substances and devices at the rate specified in the approved Vessel Security Plan.” Id. § 104.265(e)(1). Owners must also “[c]heck the identification of any person seeking to board the vessel.” Id. § 104.265(e)(3).

Owners and operators of high-risk vessels are permitted a certain measure of flexibility within this general framework. They may opt out of “identification checks and passenger screening requirements.” Id. § 104.292(b). In place of these search requirements, vessel owners “may ensure security measures are implemented that include”:

(1) Searching selected areas prior to embarking passengers and prior to sailing; and
(2) Implementing one or more of the following:
(i) Performing routine security patrols;
(ii) Providing additional closed-circuit television to monitor passenger areas; or
(iii) Securing all non-passenger areas.

The court held that the privacy interests of the passengers on a boat were governed by the Fourth Amendment and not lessened by the mode of travel (boat v. airplane):

Finally, we are not convinced by the government’s argument that our airport search cases alter the privacy interest calculus here. In United States v. Edwards, we upheld pre-boarding, suspicionless searches of airline passengers, holding that to brand them “as unreasonable would go beyond any fair interpretation of the Fourth Amendment.” 498 F.2d at 500. But airplanes are very different creatures from the more quotidian commuting methods at issue in MacWade and the instant case, and society has long accepted a heightened level of security and privacy intrusion with regard to air travel. Moreover, Edwards did not specifically determine or discuss the privacy interest involved, and we are wary of extending its analysis to a markedly different factual context.

. . .

Because an undiminished privacy interest is not itself dispositive in special needs cases but is merely one among three factors to be weighed, MacWade, 460 F.3d at 272, we must next examine the screening at issue and determine whether searches, which consist of random visual inspections by ferry attendants of vehicles’ trunks as well as the carry-on baggage of bicyclists and pedestrians, are minimally or substantially intrusive. In making this examination, courts have looked to various factors, including, inter alia, the duration of the search or stop, see Lidster, 540 U.S. at 427; Sitz, 496 U.S. at 451-52; Martinez-Fuerte, 428 U.S. at 546-47, 558, the manner in which government agents determine which individuals to search, see Lidster, 540 U.S. at 428, Martinez-Fuerte, 428 U.S. at 559, the notice given to individuals that they are subject to search and the opportunity to avoid the search by exiting the premises, see MacWade, 460 F.3d at 273; Edwards, 498 F.2d at 500, as well as the methods employed in the search, see Sitz, 496 U.S. at 451; Martinez-Fuerte, 428 U.S. at 558.

On the basis of these factors, it is clear that the searches in this case are, by any measure, minimally intrusive. As recounted by plaintiffs, the duration of the stops or searches have been “cursory” and of the short duration which the Supreme Court has long held to be minimally intrusive. Lidster, 540 U.S. at 427 (upholding brief stops of vehicles at checkpoint and questioning of drivers); Sitz, 496 U.S. at 451 (same); Martinez-Fuerte, 428 U.S. at 546-47, 558 (same). Plaintiffs have not alleged that the government has given unbridled discretion to LCT employees to carry out searches in a discriminatory or arbitrary manner. Lidster, 540 U.S. at 428 (“[T]here is no allegation here that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops.”); Martinez-Fuerte, 428 U.S. at 559 (discussing the intrusiveness of roving patrols that presented “a grave danger [of] unreviewable discretion,” but finding that a fixed checkpoint greatly reduced the possibility of abuse). Other factors similarly weigh in the government’s favor in this inquiry. For instance, the methods used to conduct the searches at issue are limited to visual inspections of vehicles and their trunks and brief examinations of the contents of carry-on baggage. See Sitz, 496 U.S. at 451 (brief visual inspections); Martinez-Fuerte, 428 U.S. at 558 (same); Edwards, 498 F.2d at 500 (brief examination of contents of carry-on luggage). Ample notice is given to individuals seeking to board LCT ferries that are subject to search and that they may avoid the search by exiting the premises. See MacWade, 460 F.3d at 273 (“[P]assengers receive notice of the searches and may decline to be searched so long as they leave the subway. . . .”); Edwards, 498 F.2d at 499-500 (finding notice central to upholding the constitutionality of airport searches where large signs had been posted near the boarding gates warning: “PASSENGERS AND BAGGAGE SUBJECT TO SEARCH”). Such notice helps “reduc[e] to a minimum any unsettling show of authority that may be associated with unexpected intrusions on privacy.” Von Raab, 489 U.S. at 672 n.2 (internal citation and quotation marks omitted); see also Edwards, 498 F.2d at 501 (“The point is . . . that in order to bring itself within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to proceed no further.”). Notice also serves to eliminate any stigma associated with the search. Id. at 500 (“The search of carry-on baggage, applied to everyone, involves not the slightest stigma. More than a million Americans subject themselves to it daily. . . .”) (internal citation omitted).

The court also engaged in a fascinating discussion of the balancing of special needs, discussing: (1) the special needs doctrine does not require a “well-defined target class”; (2) the government has demonstrated a “special need” in this situation; (3) the government’s determinations of “high risk” vessels are entitled to deference; and (4) the relevance of the efficacy of the searches.

Officers lacked exigent circumstances for a warrantless entry based on assertions from a person they just arrested that they had to have understood would be seeking leniency for himself and by becoming a snitch. United States v. Markeif, 2006 U.S. Dist. LEXIS 93028 (M.D. Pa. December 22, 2006):

The Government asserts that the basis for exigent circumstances formed upon the arrest of Cummings and the information he subsequently proffered to the officers at that point. We accept that Cummings told the officers to “get him out of here” and that he speculated that the individuals observed down the street, some of whom may have been talking on cellular phones, knew his employers in South Williamsport. However, Cummings was admittedly unknown to the officers, as were the individuals down the street, and therefore the officers had no way of knowing whether Cummings was credible or reliable in his assertion that his employers were being “tipped off.” Moreover, the officers did not endeavor to engage the witnessing individuals in a discussion to corroborate Cummings’ assertions to them. In fact, Cummings was acting in accordance with the way many arrested drug dealers do; he was attempting to give the officers some information in the hopes that they would grant him consideration regarding his arrest. These experienced officers were, or should have been, well aware that upon his arrest, Cummings’ priorities were those of self-interest and self-preservation, and with cognizance of Cummings’ motivation, the officers should have proceeded with some caution upon any information proffered by Cummings. We find that there is no credible evidence that tends to show that the occupants of Apartment 1, 1920 Riverside Drive were aware that the police were on their trail. Any assertion in that regard involves rank speculation. Cummings’ suppositions could have been checked out by the officers, but they were not. Therefore, as a corollary, we cannot find, based upon Cummings’ assertions alone, that the officers had a reasonable belief that contraband was being removed or secreted.

Next and importantly, the actions of the officers following the arrest of Cummings do not indicate to the Court that they wholly believed it was urgent to enter Apartment 1, 1920 Riverside Drive to preserve evidence. Lt. Ungard did not immediately travel to the vicinity of 1920 Riverside Drive upon Cummings’ arrest, but rather accompanied him back to Williamsport City Hall. Thereafter, Lt. Ungard proceeded to 1920 Riverside Drive and commenced surveillance. He then observed individuals who fit the description of the suspected residents of Apartment 1 enter and leave the apartment building, however he made no attempt to question or follow these individuals. This is somewhat remarkable, in that Lt. Ungard testified that he was concerned these individuals were leaving with evidence. Further it is clear that Lt. Ungard and other officers were safely able to obtain surveillance positions, and there was no evident danger to the officers if they continued to maintain surveillance while a warrant was being sought.

After a searching review of the facts we are left with the inescapable conclusion that there existed no affirmative evidence that destruction of evidence was imminent, simply because no evidence indicated that the occupants of Apartment 1, 1920 Riverside Drive were aware of Cummings’ arrest or his accusations against them. Instead what we find is apparent post hoc reasoning by the Government that attempts to wedge this warrantless entry into a recognized exception to the warrant requirement. Essentially the Government is asking this Court to cure a conundrum of its own making by buying into an artificial construct of both exigent circumstances and probable cause, which we plainly cannot do.

Summary judgment granted arresting officers because plaintiff was stopped while driving a vehicle stolen at gunpoint. Powell v. Hill, 2006 U.S. Dist. LEXIS 92855 (E.D. Mich. December 26, 2006).*

Pro se § 1983 plaintiff survived summary judgment on illegal search claim despite defendant’s claim it was barred by Heck because it did not yet challenge a conviction. Medley v. McClindon, 2006 U.S. Dist. LEXIS 93032 (E.D. Mo. December 26, 2006).*

Two anticipatory search warrants were executed on the lawyer defendant for alleged bankruptcy fraud. When confronted by the FBI and an AUSA, he made a proffer. After being charged, he sought to suppress the search via a motion in limine concerning the government’s attempt to void the proffer for lack of candor. The motion was denied. United States v. Peel, 2006 U.S. Dist. LEXIS 92880 (S.D. Ill. December 22, 2006).*

Broad allegations that probable cause was lacking without any specifics was insufficient to get a Franks hearing. Motion denied without prejudice. United States v. Trikha, 2006 U.S. Dist. LEXIS 92885 (S.D. Ill. December 22, 2006).*

Parole search incident conducted before actual arrest was valid. United States v. Evans, 2006 U.S. Dist. LEXIS 89684 (S.D. Ga. December 12, 2006).

Federal DNA upheld again [no surprise there; no court has disagreed], against a laundry list of challenges, including Bill of Attainder. United States v. Hook, 2006 U.S. App. LEXIS 30526 (7th Cir. December 13, 2006).*

Officer responding to an explosion call at a trailer park stopped a motorcycle for running a stop sign. It turned out that the driver was connected to the trailer with the explosion. The officer conducted a “sweep search” of the trailer and saw drugs and paraphernalia in plain view. A pipe bomb was also seen. He used that to obtain a search warrant for drugs, paraphernalia associated with manufacture and trafficking, and “weapons, firearms and ammunition.” The warrant was sufficiently specific to include the pipe bomb, and the affidavit made no mention of seeing the pipe bomb, so the magistrate was not misled and there was no taint from the prior invalid search, even assuming the pipe bomb was not validly seen. United States v. Jansen, 470 F.3d 762 (8th Cir. December 13, 2006).*

Officer granted summary judgment on excessive force claim for accidentally breaking plaintiff’s malformed leg, a condition the officer was unaware of, when pushing him into the backseat of the patrol car. Todhunter v. Swan, 2006 U.S. Dist. LEXIS 90084 (E.D. Mich. November 29, 2006).*

Affidavit for search warrant showed probable cause for search of various places. Defendant’s staleness argument is also unavailing. While there was information that was a month old, it involved ongoing sales of drugs from the premises, and the informant’s corroborated information was recent. United States v. Bucks, 2006 U.S. Dist. LEXIS 89850 (D. Minn. November 28, 2006). (Note: This is a U.S.M.J.’s R&R, and it is a model for any principled evaluation of probable cause in multiple locations. It is especially gratifying that the M.J. did not feel it necessary to provide a discussion of good faith exception as well.)

On July 7th, I said that the number of U.S. District Court cases on Lexis would hit 90,000 this year. It reached that number today. 2005’s total was 45,000; 2004’s was 24,000. The increase in numbers means it takes longer to do this blog everyday.

A defendant can disavow knowledge of something yet still have standing to challenge its seizure. United States v. Felix, 2007 U.S. Dist. LEXIS 1957 (S.D. Cal. January 9, 2007):

The Government’s second “hurdle” refers to Defendant’s denial of knowledge of the pouch after his arrest. The Government appears to be arguing that Defendant cannot object to a search of a pouch that he expressly claims he knows nothing about, because he could have no legitimate expectation of privacy in an item of which he is unaware. However, the Ninth Circuit has held that the Government cannot rely upon a Defendant’s disavowal of ownership to defeat standing, while simultaneously charging the Defendant with possession, without regard to the underlying facts. See United States v. Issacs, 708 F.2d 1365, 1367-68 (9th Cir. 1983). In this case, Defendant had a reasonable expectation of privacy in the bedroom in which he was an overnight guest that allows him to challenge the search of the entire bedroom, including a pouch found therein, regardless of his protestations of ignorance regarding the pouch itself. Accordingly, this argument is without merit.

While Iowa courts have not discussed whether reasonable suspicion is required for a probation search, the defendant’s probation agreement did require it, and the court finds that reasonable suspicion existed for a probation search. United States v. Becker, 2007 U.S. Dist. LEXIS 1811 (N.D. Iowa January 9, 2007).*

Consent was found voluntary. “The Court finds that the testimony offered by defendant and his wife stretches the boundaries of believability and should not be credited. … Defendant’s wife testified to an equally implausible story, and the Court finds the evidence supports a conclusion that she did voluntarily consent to a search of the home.” United States v. Hernandez-Espolina, 2007 U.S. Dist. LEXIS 1777 (N.D. Okla. January 9, 2007).*

A 911 call was made and the caller asked for “the intervention unit.” The caller was asked by the operator whether the police or other assistance was needed, and the caller said no. Police were dispatched and they had knowledge that the plaintiff had weapons. When they arrived, they looked through a window and saw a broken dish. This was not exigent circumstances for an entry. Mayo v. City of York, 2007 U.S. Dist. LEXIS 1663 (M.D. Pa. January 9, 2007):

In this case, there is no evidence that Plaintiff had attempted suicide or engaged in self-mutilation. In the absence of such evidence, Defendants must have believed that there was a threat of serious bodily harm to others or that Plaintiff was unable to satisfy his own needs for care or safety. The evidence on this point is, however, in dispute. Defendant Veater was unaware of any other person living in the home, and he had been advised that Plaintiff’s son was no longer present. (Doc. No. 61, Dep. of Veater, 56-7). Although certain of the Defendants testified that Plaintiff said he was going to “end it” (Doc. No. 61, Dep. of Veater, 69), or to go “get his guns” (Doc. No. 61, Dep. of Hansel, 49), Plaintiff testified that he stated only that he was “going to bed.” (Doc. No. 61, Dep. of Mayo, 159). Resolving such conflicting testimony is reserved to the fact-finder.

The officer made a traffic stop of defendants’ truck and then asked them questions about their destination, which was somewhat inconsistent. The district court found the inconsistency, not followed up on, to not amount to reasonable suspicion to continue the detention and ask for consent. Nervousness added nothing. United States v. Robinson, 2006 U.S. Dist. LEXIS 94355 (S.D. Miss. December 29, 2006):

In this case, Deputy Redditt testified that the driver and passenger gave inconsistent answers to the deputies’ questions: the driver claimed the passenger was his cousin, the passenger stated they were not related; the driver stated their destination was in Texas, the passenger said Louisiana. Redditt testified that he felt it was unusual for an 18-wheeler to be traveling without a load. (Transcript, p. 20). He also stated that the driver appeared to be nervous. (Transcript, p. 20).

In Jenson, the Fifth Circuit found that the government had not shown reasonable suspicion beyond the time it took the license checks to clear; thus, the extended stop was illegal. The reasons given by the government for the prolonged stop were “(1) It took an unusually long time for Jenson’s van to pull over, (2) Jenson’s excessive talkativeness indicated nervousness, and (3) Jenson and [his passenger] Cotton appeared to give inconsistent answers.” 462 F.3d at 404. The court disregarded the inconsistent answers because they occurred after “the initial purpose of the stop [had] been fulfilled.” Id. However, the court also found that the officer could have dispelled his suspicions by asking follow-up questions. Id. at 404 n.4 (citing Florida v. Royer, 460 U.S. 491, 500 (1983) (explaining that an officer should use “the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time”)).

The remaining reasons were found by the Fifth Circuit to be “relatively weak by comparison to the facts in our relevant precedents.” Id. at 405 (citing United States v. Jones, 234 F.3d 234, 242 (5th Cir. 2000) (no reasonable suspicion to search vehicle even though one occupant had a previous arrest on a crack cocaine charge); Santiago, 310 F.3d at 338-39 (search unreasonable even though defendant lied to officer about the identity of a passenger)). “More importantly,” the court found, “the government [did] not present adequate evidence of a nexus between Jenson’s allegedly suspicious behavior and any specific criminal activity.” Jenson, 462 Fed.3d at 405. The Fifth Circuit concluded that because the officer “[had] not articulated any particular connection between the allegedly suspicious behavior and drug or weapons possession, beyond the fact the driver’s hesitation in pulling over may have been the product of intent to conceal,” the government had not shown reasonable suspicion to continue the traffic stop once Jenson’s ID cleared. Id. at 406.

In the case at bar, the inconsistency concerning Thompson and Richardson’s stated destination, Louisiana or Texas, becomes less glaring if one considers the further explanation that they were “looking for a load.” At any rate, the officers apparently did not attempt to dispel their suspicions with further questions. The conflict concerning whether Thompson and Richardson were cousins or not is certainly no more suspicious than the lie about a passenger’s identity in Santiago. Similarly, Thompson’s nervousness, without more, does not create a reasonable suspicion. The officers failed to articulate reasonable suspicion sufficient to prolong the traffic stop past the time it took to clear the occupants’ driver’s licenses. See Jenson, 462 F.3d at 406.

Cracked windshield was grounds for a stop, even if it turned out that the cracked windshield was not illegal per se in Kentucky. United States v. Carter, 2007 U.S. Dist. LEXIS 696 (W.D. Ky. January 3, 2007).*

In a case with five search warrants in an environmental case involving a host of issues, defendant’s staleness challenge was defeated by officer’s reconfirmation of material ongoing facts the day before the affidavit was prepared. The affidavit also showed probable cause to search the defendant’s computer in his residence as a records search because the officers were looking for records of a bypass system. In the ten years experience of the officer, recited in the warrant, even polluters keep records at home. United States v. Evans, 2006 U.S. Dist. LEXIS 94369 (M.D. Fla. July 14, 2006) (Note: The court also engaged in a detailed finding that the good faith exception would apply.). In a related case with one defendant, the same court found that officers looking in a building to determine whether it was a source of waste water could look in a black bag found in the building, rejecting the contention that looking in the black bag exceeded the scope of the warrant [which it did] by finding plain view [the bag was in plain view, but its contents were not]. United States v. Evans, 2006 U.S. Dist. LEXIS 94368 (M.D. Fla. July 12, 2006). (Note: I find the black bag search to be indefensible.)

In the shooting death of 92 year old Kathryn Johnson in Atlanta previously mentioned here, the Atlanta Journal-Constitution reported yesterday this story: Feds told officer’s lie led to fatal drug bust:

An Atlanta police narcotics officer has told federal investigators at least one member of his unit lied about making a drug buy at the home of an elderly woman killed in a subsequent raid, according to a person close to the investigation.

In an affidavit to get a search warrant at the home Nov. 21, narcotics officer Jason R. Smith told a magistrate he and Officer Arthur Tesler had a confidential informant buy $50 worth of crack at 933 Neal St. from a man named “Sam.”

But narcotics officer Gregg Junnier, who was wounded in the shootout, has since told federal investigators that did not happen, according to the person close to the investigation. Police got a no-knock warrant after claiming that “Sam” had surveillance cameras outside the Neal Street residence and they needed the element of surprise to capture him and the drugs.

Search “Atlanta” on this website for previous articles. The last article was December 3d.

The state carries the burden of proof of exigency for dispensing with announcement. Mere possibility of exigency is not enough. Commonwealth v. Wagstaff, 2006 PA Super 312, 911 A.2d 533 (November 6, 2006):

[*P10] Stated otherwise, while the Commonwealth makes an argument premised upon exigent circumstances, there was no evidence presented at the suppression hearing of the existence of any exigencies at the time of the execution of the warrant. Cf. Grubb, 595 A.2d at 135 (“The right, on the scene, under exigent circumstances, to break in unannounced recognizes that the peril to an officer serving a warrant is ever present and he must be able to protect himself. This usually can be done only at the time the warrant is being executed.”).

[*P11] Herein, the lack of evidence supportive of the Commonwealth’s destruction of evidence argument is inimical to its position excusing the manner and method by which the police executed the search warrant. Similarly, in Commonwealth v. Carlton, 549 Pa. 174, 701 A.2d 143 (1997), the police announced their presence but did not announce their purpose and forced the door after twenty to thirty seconds. The Supreme Court noted that the police failed to state their purpose prior to entering the dwelling and that there were no exigent circumstances that would have excused the police from announcing their purpose. …

[*P12] Sub judice, the police identified themselves, but they failed to state their purpose.

Store clerk’s call that a man called another man from the store and requested that he bring him a gun gave reasonable suspicion for a stop. State v. Taylor, 2006 Ohio 5866, 2006 Ohio App. LEXIS 5807 (10th Dist. November 7, 2006).*

Plain feel of a bullet during a patdown justified a greater search. State v. Clay, 2006 Ohio 5864, 2006 Ohio App. LEXIS 5816 (5th Dist. November 7, 2006).*

Small lane crossings are not enough for a field sobriety test, but this was more. State v. Hunter, 2006 Ohio 5810, 2006 Ohio App. LEXIS 5785 (9th Dist. November 6, 2006):

Generally, de minimis lane violations and small marked lane errors alone are not sufficient to justify the administration of field sobriety tests. State v. Spillers (Mar. 24, 2000), 2nd Dist. No. 1504, 2000 Ohio App. LEXIS 1151, at *6; United States v. Frantz (2001), 177 F.Supp.2d 760. However, in this case, Officer Greiner personally observed Defendant crossing outside the lane three times and he had a tip from the Task Force officer that Defendant was driving erratically and was a vehicle of interest. This properly constitutes a reasonable and articulable suspicion that Defendant was drinking, thus properly enabling Officer Greiner to conduct field sobriety tests.

Washington’s sexually violent predator law was narrowly drawn to allow the state access to a convicted SVP’s computer to determine whether he was complying with the law. State v. Williams, 135 Wn. App. 915, 146 P.3d 481 (November 7, 2006):

Contrary to Williams’ assertions, the SCC’s search of his room and computer hard drives was reasonable and in accord with Hydrick. Internal SCC policies authorize the searches and seizures to, in part, enforce the SCC prohibition on the residents’ possession of sexually explicit material. These policies are necessary to both treat and protect the resident and to protect others. They balance the rights of SCC residents with the State’s interest in treatment and protection and do not violate Williams’ privacy rights. See Campbell, 139 Wn.2d at 355-56.

I haven’t been keeping up with the comments, not that I do not care what the readers have to say. If I reported on your case and I missed something, e-mail me at ForHall@aol.com and I’ll correct it. I did that a couple of times. Reading twenty cases a day in the short time I have sometimes leads to my missing something.

Anyway, my point: Spammers have recently been hitting the comments, and I spent precious time the last two days trying to clean most out, and I’ve added key words to the antispam filter provided with the software. I’ve gotten a fair amount of it back to November, and I don’t have the time to go back any more than that. Few people read that far back unless they search.

So, somebody could have had something brilliant to say about a case, and a couple of dozen spams could be after it. While we try to figure out a way to head off the spammers in the comments, feel free to comment. I hope we don’t have to end comments, but it may come to that just from lack of comments.

Using a program developed by Microsoft, the Toronto police child exploitation unit was able to trace the internet source of a live sexual assault of a child and apparently raid the house where it originated. See the AP’s Canadian Nabbed in Live Web Sex Assault.

[Officer] Krawczyk, who was posing as an online pedophile, said he established a relationship with the man in an Internet chat room for pedophiles in January.

After the detective gained his trust, the suspect on Sunday sent still images recorded on a Web cam, which were transmitted in “real time” to a private site, which Krawczyk declined to disclose.

“I can’t get into exactly what the program is,” Krawczyk told The Associated Press. “But you see the images immediately. I was talking with him and, I can’t get into the details of what were in the pictures, but I knew that it was happening live.”

The article does not mention a warrant, and the images were not transmitted into the U.S., but this would be a classic case of exigent circumstances. Also, the police are reluctant to talk about the program other than to say that it exists, as though providing details would somehow defeat it.

We should expect similar occurrences here, if they haven’t happened already.

The defendant was the pilot of a small passenger plane flying to Hyannis from Martha’s Vineyard, and he apparently had a diabetic episode and became disoriented. A student pilot on the plane took the controls in the passenger seat and crash landed the plane. The search of the baggage of the pilot that produced a syringe and insulin by an FAA inspector was a valid administrative search. United States v. Crews, 2006 U.S. Dist. LEXIS 60493 (D. Mass. August 25, 2006).

Just because the defendant was the target of a search does not give him standing when he otherwise lacked a reasonable expectation of privacy in the place searched. United States v. Morrison, 2006 U.S. Dist. LEXIS 60477 (E.D. N.Y. August 25, 2006):

Given, as reported by Mr. Cleere, [the officer,] that defendant purportedly lacked the ability to access his former secretary’s office, no less her safe in which the firearms — said to be hers — were found, it is clear that he lacks standing to seek the suppression of those items. That the search may have been directed at Mr. Morrison, i.e. he was the “target” of the search, does not alter the above result ([Rakas] at 138), nor does the fact that he is the one facing criminal charges based on the fruits of the search (id. at 134).

A specifically described person attempted to rob a convenience stop, and Memphis police saw the vehicle associated with the alleged robber later. When the vehicle was stopped, it was with reasonable suspicion, and, when the door was opened, a gun was seen in plain view. United States v. Price, 2006 U.S. Dist. LEXIS 60742 (W.D. Tenn. August 25, 2006).*

One informant had information of his own and from another that a meth cook was going to occur in a business. Officers set up surveillance and waited for the participants to arrive. When they did, the officers secured the premises and sought a search warrant, and this was valid under Segura. United States v. Maxfield, 2006 U.S. Dist. LEXIS 60634 (D. Utah August 24, 2006).

Consent to a search was valid, despite the fact that officers said that if he did not sign the consent form they would secure the premises because they believed they had PC for a warrant. This does not make the consent involuntary. United States v. Gonzalez, 2006 U.S. Dist. LEXIS 60679 (N.D. Fla. August 15, 2006).*

Defendant was stopped for speeding. The officer noticed the California tag was expired. The driver’s DL had been expired for two years. He and the passenger, his sister, said that the vehicle was a rental from Enterprise in another person’s name, but neither had a copy of the rental agreement. The driver was asked to come back to the patrol car while Enterprise was contacted, and they entered into conversation. Occasionally the officer asked questions of the passenger. Enterprise finally advised that it was their car, it was rented in California and not supposed to be in Wyoming, and neither of the occupants were authorized to be driving it. Therefore, the officer was impounding the car. He wrote traffic tickets and gave the occupants an option to walk to a nearby town with their luggage or he would drive them. As a condition of driving them, however, the officer said he needed to know whether the bags contain contraband or weapons. They both consented to a search and cocaine and meth were found in the bag. The consent was valid. The 45 minute detention was reasonable while the issue of the rental car was resolved. The consent to search the bag was not coerced. Hembree v. State, 2006 WY 127, 143 P.3d 905 (October 11, 2006).

It looked a little funky during the day, and I apologize, but it was the only way to stay up all day.

Late Chief Justice Rehnquist’s FBI file was released more than a year after his death under FOIA, and there are a few surprises. See Law.com’s Tony Mauro, Rehnquist FBI File Sheds New Light on Drug Dependence, Confirmation Battles:

The late Chief Justice William Rehnquist’s Senate confirmation battles in 1971 and 1986 were more intense and political than previously known, according to a newly released FBI file that also offers dramatic new details about Rehnquist’s 1981 hospitalization and dependence on a painkiller.

The FBI file on Rehnquist, released last week under the Freedom of Information Act, reveals that in 1971, as Rehnquist’s confirmation hearings for associate justice approached, the Nixon Justice Department asked the FBI to run a criminal background check on at least two potential witnesses who were expected to testify against Rehnquist. Then-FBI Director J. Edgar Hoover approved the request.

As interesting, and as troubling in a different way, is the FBI investigation into Rehnquist’s drug dependence from his back injury in anticipation of his 1986 confirmation as Chief Justice:

Also in 1986, the FBI conducted an intensive investigation into Rehnquist’s dependence on Placidyl, a strong painkiller that he had taken since the early 1970s for insomnia and back pain. Rehnquist’s bout with drug dependence had been made public in 1981, when he was hospitalized for his back pain and suffered withdrawal symptoms when he stopped taking the drug.

The FBI’s 1986 report on Rehnquist’s drug dependence was not released at the time of his confirmation, though some Democratic senators wanted it made public. But it is in Rehnquist’s now-public file, and it contains new details about his behavior during his weeklong hospital stay in December 1981. One physician whose name is blocked out told the FBI that Rehnquist expressed “bizarre ideas and outrageous thoughts. He imagined, for example, that there was a CIA plot against him.”

The doctor said Rehnquist “had also gone to the lobby in his pajamas in order to try to escape.” The doctor said Rehnquist’s delirium was consistent with him suddenly stopping his apparent daily dose of 1400 milligrams of the drug — nearly three times higher than the 500-milligram maximum recommended by physicians. The doctor said, “Any physician who prescribed it was practicing very bad medicine, bordering on malpractice.”

Such is the price one pays for asking for a high profile job in the government: The FBI Agent as proctologist, and even your doctors will violate confidentiality.

Officers collectively had probable cause to believe that defendant was transporting drugs when he drove off from their surveillance, and they called for a uniform officer to stop the defendant. The officers were not required to tell the officer making the stop what the probable cause was; all that is required is that there be probable cause. United States v. Covarrubias, 2007 U.S. Dist. LEXIS 199 (D. Ore. January 4, 2007):

All of these cases [cited by the defense], however, are distinguishable from this matter because they involved an assessment of probable cause or reasonable suspicion developing in the field under quickly evolving and uncertain circumstances. Here, on the other hand, it is undisputed that the JTF and DEA officers already had probable cause to stop and to search Defendant’s vehicle and to arrest him when they called for the “walled off” stop of Defendant’s vehicle. In addition, probable cause in this case grew out of a long-term, judicially supervised, multi-agency investigation instead of a quick assessment of rapidly evolving circumstances. Moreover, although the trial courts in each of these cases relied on by Defendant interpreted the collective-knowledge doctrine to require, at the least, communication of the existence of probable cause to the arresting officer, none of these interpretations of the collective-knowledge rule has been reviewed by an appellate court. Indeed, in the Ninth Circuit, it appears

“there is room in our precedent to conclude that the collective knowledge of law enforcement can support reasonable suspicion, even if the information known to others is not communicated to the detaining officer prior to a Terry stop, cf. United States v. Butler, 74 F.3d 916, 921 (9th Cir. 1996)(holding that “collective knowledge of police officers involved in an investigation, even if some of the information known to other officers is not communicated to the arresting officer” can establish probable cause)….”

United States v. Terry-Crespo, 356 F.3d 1170, 1177 (9th Cir. 2004).

Accordingly, in the absence of clear guidance from the Ninth Circuit, this Court does not find the reasoning of the decisions on which Defendant relies to be persuasive under these particular circumstances.

Evidence supported the USMJ’s R&R conclusion that defendant abandoned his hotel room. He had packed up to leave, attached his companion, and fled the area. United States v. James, 2007 U.S. Dist. LEXIS 187 (D. Minn. January 3, 2007):

James also contends that Judge Graham erred in concluding that he abandoned his room at the Excel Inn. James relies primarily on United States v. Hoey, 983 F.2d 890, 893 (8th Cir. 1993), in which the court found that the defendant had abandoned her apartment because she was six weeks behind in paying rent, had held a moving sale, and was seen leaving. James points to differences between Hoey’s situation and his situation — such as the fact that he had reserved his hotel room through the following day — and argues that these differences compel a finding that he had not abandoned his hotel room in the way that Hoey had abandoned her apartment.

In determining whether property was abandoned for Fourth Amendment purposes, courts consider all of the circumstances at the time of the alleged abandonment. Id. at 892. The facts of this case — while indeed different from the facts in Hoey — are more than sufficient to demonstrate that James had abandoned his room at the Excel Inn. Residence in a hotel room is almost by definition transient; in contrast, residence in an apartment is typically long-term. The type of evidence necessary to show that an individual has abandoned an apartment will thus differ from the type of evidence needed to establish that a hotel room has been abandoned. Even putting that difference aside, the evidence of abandonment here is at least as strong as that in Hoey. James had packed up his belongings and was in the process of leaving when he attacked his companion and fled the hotel. Based on this evidence, the Court finds that James had abandoned his room at the Excel Inn.

Two habeas cases from Michigan: Petitioner was afforded a full opportunity to litigate his Fourth Amendment claim because Michigan courts do not default search and seizure claims not made in the trial court. No motion was made here, but it was decided on the merits on appeal, and that satisfies Stone v. Powell. Mendoza v. Berghuis, 2007 U.S. Dist. LEXIS 164 (E.D. Mich. January 4, 2007).* “The relevant inquiry is whether a habeas petitioner had an opportunity to litigate his claims, not whether he in fact did so or even whether the Fourth Amendment claim was correctly decided. See Wynne v. Renico, 279 F. Supp. 2d 866, 892 (E.D. Mich. 2003).” Calicut v. Quigley, 2007 U.S. Dist. LEXIS 166 (E.D. Mich. January 3, 2007).*

Search warrant papers were judicial documents and were presumptively disclosable. Here, the CIs were not easily discoverable, and, on balance, the records should be ordered unsealed. In re Sealed Search Warrant, 2006 U.S. Dist. LEXIS 89255 (N.D. N.Y. December 11, 2006):

The search warrants, orders, and return in the files of the search warrants do not contain any information which reasonably could reveal the identities of any confidential source of information or either uncharged third-party. Given the presumption of access applicable here, those documents must be unsealed.

The affidavits of Hautau and Bragg present more difficult questions. As noted, the weight of the presumption here is great. That presumption arises from the need to permit meaningful monitoring of judicial actions. As to the confidential sources of information, the confidentiality of the identities of those sources remains critical to law enforcement’s ability to obtain reliable information on criminal activity by assuring sources of that information that their identities will remain undisclosed. Amodeo II, 71 F.3d at 1051-52. Here, the need to preserve that confidentiality may easily be accommodated with public access to the affidavits by redacting the limited information in the affidavits which might serve to identify those sources. Redacting such information would not impair meaningful monitoring of the judicial determinations related to the search warrants and in such circumstances, redaction and release rather than continued complete sealing has consistently been employed and approved. See Amodeo II, 71 F.3d at 1052 (approving redaction of the identities of confidential sources from a report filed with the court). Thus, while this factor does not require continued sealing of the entire affidavits, it supports redacting the limited information which would serve to identify the confidential sources.

As to the two uncharged individuals identified by name in the affidavits, the Second Circuit has held that “the privacy interests of innocent third parties . . . should weigh heavily in a court’s balancing equation.” In re New York Times Co., 825 F.2d 110, 116 (2d Cir. 1987); Gardner, 895 F.2d at 79-80. Prior cases have recognized the need to protect third-parties from the disclosure of information which is “scandalous, unfounded, or speculative.” Amodeo II, 71 F.3d at 1052 (sealing portions of a document containing accusations which were unsworn and “of doubtful veracity, possibly stemming in part from personality conflicts.”).

Here, the information concerning the two individuals was reported by two FBI agents and made under oath. By their sources and form, therefore, the affidavits bear reasonable indicia of reliability and trustworthiness. Moreover, the information related in the affidavits about the two individuals is not salacious, sensational, or descriptive of private, embarrassing conduct unrelated to the business matters under investigation. The information contained in the affidavits about the two individuals is limited to the details of business transactions in which the two were involved with Dare. Additionally, while the United States asserts that neither individual has been or will be charged with any federal offense, both affidavits assert that there was probable cause to believe that Dare and the two individuals “misappropriated rental proceeds and other income for their own use.” While uncharged, therefore, it remains open to question whether their conduct was “innocent.” See Gardner, 895 F.2d at 79 (citation omitted).

Finally, the premise of the federal investigation of Dare and those associated with him was that mortgages obtained to finance certain real estate purchases were insured by the United States Department of Housing and Urban Development (HUD), which regulated the use of income received from the property. The individuals involved in the operation of such properties should reasonably have anticipated that their use of the income from the properties would be examined by HUD. Therefore, both because public funds were at stake and because these individuals should have anticipated government scrutiny, their expectations of privacy in the transactions described in the affidavits was substantially reduced. See Amodeo II, 71 F.3d at 1052-53 (finding that the activities of a law firm which were described in a sealed report were “such that the firm might reasonably have expected some public scrutiny.”).

Thus, what appears here is a strong presumption of public access to the affidavits weighed against the acknowledged but diminished privacy interests of two third-parties. Given the strength of the presumption here and the third-parties’ limited expectation of privacy, the balance tips decidedly in favor of unsealing and access. Redaction of the names of the two individuals remains possible and has been suggested as an alternative by the United States. However, redaction of all information in the affidavits which could serve to identify the individuals would excise from public examination significant material portions of the affidavits. Such redaction would too greatly impair the ability of the public to monitor the judicial process here which stands at the heart of the presumption of access. Accordingly, the secondary protection of redaction is also rejected.

III. Conclusion

For the reasons stated above, it is hereby

ORDERED that:

. . .

3. The documents contained in the two above-captioned matters are UNSEALED except that the Clerk shall maintain the original affidavits of Hautau and Bragg UNDER SEAL pending further order of the Court;

4. On or before December 13, 2006, the United States shall submit to the Court copies of the affidavits of Hautau and Bragg containing the redactions which the United States contends are necessary to prevent identification of the confidential sources of information in the affidavits; and

5. Upon review and determination of the proposed redactions, the redacted affidavits will be ordered filed and made available to the public.

Defendant’s wife and entire family had access to his computer, and it was not password protected. Defendant’s wife saw a child porn picture that defendant had printed out, and she reported it and then consented to a search of the computer, which she had apparent authority to do. United States v. Albertson, 2006 U.S. Dist. LEXIS 89236 (M.D. Pa. December 11, 2006).*

Officers observed what appeared to be a hand-to-hand drug sale in a high crime area to a prostitute, and they confronted the prostitute who gave up the drugs. That give probable cause to arrest defendant as the seller. United States v. Williams, 2006 U.S. Dist. LEXIS 88927 (E.D. Ky. November 22, 2006).*

In Indiana, an officer must be in a marked police car to make a stop. A narc in an unmarked car wearing a sweatshirt with “Police” on the back cannot make a traffic stop. The fact defendant was in a high crime area is not reasonable suspicion for a stop. Denial of suppression motion reversed. Davis v. State, 858 N.E.2d 168 (Ind. App. December 11, 2006).