Identity evidence is not automatically suppressible after an illegal arrest. United States v. Olivares-Rangel, 458 F.3d 1104 (10th Cir. August 11, 2006):

Seeking to suppress one’s very identity and body from a criminal proceeding merely because of an unconstitutional arrest is the sort of jurisdictional challenge foreclosed by Lopez-Mendoza. The language in Lopez-Mendoza merely says that the defendant cannot suppress the entire issue of his identity. A defendant may still seek suppression of specific pieces of evidence (such as, say, fingerprints or statements) under the ordinary rules announced in Mapp and Wong Sun. A broader reading of Lopez-Mendoza would give the police carte blanche powers to engage in any manner of unconstitutional conduct so long as their purpose was limited to establishing a defendant’s identity. We do not believe the Supreme Court intended Lopez-Mendoza to be given such a reading.

Drug SW execution had dog alert on a lock box, and police found 1768 photographs inside of defendant having sex with minors. The search was legal. United States v. Smith, 459 F.3d 1276 (11th Cir. August 11, 2006).*

A police officer responding to a burglar alarm can conduct a search if he or she reasonably suspects that a burglary or some other type of crime is in progress. United States v. McCullough, 457 F.3d 1150 (10th Cir. August 10, 2006).

Knock-and-talk and consent entry at 3:15 a.m. was not inherently coercive. The TV was on when the officers arrived, and the occupant came to the door in 30 seconds fully dressed. Five officers entered, and she consented to searching for proof of counterfeiting. Shortly thereafter, the defendant showed up, and he “consented,” too. United States v. Brown, 190 Fed. Appx. 704 (10th Cir. August 8, 2006) (unpublished). Note: If the occupant had been asleep, I submit that a 3:15 a.m. knock-and-talk with five officers would be inherently coercive, without a doubt.

A border stop at LAX led Customs to search a laptop computer without reasonable suspicion. Such a search is highly invasive and must be based on reasonable suspicion. Search suppressed. United States v. Arnold, 454 F. Supp. 2d 999 (C.D. Cal. October 2, 2006):

The Supreme Court recognized in Flores-Montano that highly intrusive searches of persons implicate dignity and privacy interests. Flores-Montano, 541 U.S. at 152. Likewise, opening and viewing confidential computer files implicates dignity and privacy interests. Indeed; some may value the sanctity of private thoughts memorialized on a data storage device above physical privacy. See United States v. Molina-Tarazon, 279 F.3d 709, 716 (9th Cir. 2002) (recognizing that “government intrusions into the mind–specifically those that would cause fear or apprehension in a reasonable person–are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature”), rev’d on other grounds, Flores-Montano, 541 U.S. 149.

The government argues that the officers searched Arnold’s tangible property, not his person, and therefore the search was routine and did not require reasonable suspicion. However, as the Court recognized during the evidentiary hearing, the information contained in a laptop and in electronic storage devices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox or other tangible object.

A laptop and its storage devices have the potential to contain vast amounts of information. People keep all types of personal information on computers, including diaries, personal letters, medical information, photos and financial records. Attorneys’ computers may contain confidential client information. Reporters’ computers may contain information about confidential sources or story leads. Inventors’ and corporate executives’ computers may contain trade secrets. In this case, Arnold kept child pornography on his laptop and in his storage devices; however, “[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” Montoya de Hernandez, 473 U.S. at 548 (Brennan, J., dissenting) (quoting United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).

Comment: This is a significant case. The court recognizes the obvious: A computer search is highly invasive, a violation of personal privacy, and should only be undertaken with articulable justification, whatever the circumstances. The only other border search case involving a computer that I am aware of is United States v. Romm, 455 F.3d 990 (9th Cir. July 24, 2006), where Customs actually had PC to believe that the computer coming in at the Seattle airport had child porn on it because Canadian customs searched the computer and denied Romm entry and called U.S. Customs to tell them he was coming back.

The Fifth Circuit held in a case three weeks ago, received only today, that, while the police may have unlawfully entered the defendant’s premises without consent, they were going with her there to get ID and went inside for self-protection. The actions of those inside were suspicious enough to justify a protective sweep. United States v. Ibarra-Zelaya, 465 F.3d 596 (5th Cir. September 20, 2006).

May DNA be taken via search incident to an arrest, at least for a violent crime? Virginia appears to hold that it does.

Virginia permits DNA samples on arrest for violent felonies incident to arrest. Va. “Code § 19.2-310.2:1 authorizes law enforcement officers to obtain a sample of ‘saliva or tissue’ for DNA testing from anyone arrested for certain violent felonies. The testing is meant to isolate genetic ‘identification characteristics specific to the person.’ Code § 19.2-310.2:1. After a magistrate or grand jury confirms that probable cause exists for the arrest, id., the sampling logistics are coordinated by the ‘law-enforcement agency responsible for arrest booking in the jurisdiction.’ Code § 19.2-310.3:1(A).” A taking incident to an arrest was not shown to be a violation of the Fourth Amendment. Anderson v. Commonwealth, 634 S.E.2d 372 (Va. App. September 12, 2006):

On appeal, Anderson argues that the statute violates the Fourth Amendment because it authorizes what amounts to a “suspicionless search” unrelated to any effort by law enforcement to obtain evidence for the specific charge justifying the arrest. We disagree.

A search of an arrestee requires no independent legal justification apart from the arrest itself. “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). “It is the fact of the lawful arrest which establishes the authority to search.” Id. Upon a “lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” Id. “With the person’s loss of liberty upon arrest comes the loss of at least some, if not all, rights to personal privacy otherwise protected by the Fourth Amendment.” Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992).

That is particularly true when the search merely seeks to identify the arrestee. When a person is “arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it.” Id.; see also Smith v. United States, 117 U.S. App. D.C. 1, 324 F.2d 879, 882 (D.C. Cir. 1963) (recognizing as “elementary” the proposition that arrestees may be fingerprinted and photographed “as part of routine identification processes”). The state’s interest in the arrestee’s identity, moreover, “is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes.” Jones, 962 F.2d at 306.

Though the probable cause justifying an arrest likewise justifies a search incident to an arrest, it does not follow that the Fourth Amendment has no further role in limiting the manner of the incidental search. In this case, however, Anderson does not challenge the specific manner in which his DNA sample was taken or the nominal degree of physical invasiveness it may have involved. See id. at 307 (finding that even the DNA blood test sampling procedure involves “virtually no risk, trauma, or pain” (citation omitted)). Thus, this case does not require us to determine at what point a search incident to an arrest becomes unreasonable due to the manner in which it is performed.

For these reasons, we hold that the collection of a DNA sample from Anderson under Code § 19.2-310.2:1 did not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures. The procedure involved a permissible application of law enforcement’s authority to search an arrestee incident to an arrest.

There is no such thing as a due process claim under the “Fourth and Fourteenth Amendments.” The complaint is construed solely under the Fourteenth Amendment. Croom v. Wagner, 2006 U.S. Dist. LEXIS 64915 (E.D. Pa. September 11, 2006)* (pro se prisoner complaint).

Having considered the merits of the stop and arrest claim, “We conclude defendant was not prejudiced by his attorney’s failure to file a motion to quash arrest and suppress evidence because it would not have had a reasonable likelihood of success.” People v. Morrison, 367 Ill. App. 3d 581, 305 Ill. Dec. 362, 855 N.E.2d 253 (2d Dist. September 12, 2006, released for publication October 19, 2006).*

Eighteen days after a murder, the police allegedly formed PC for defendant’s arrest for murder, and they went to his house shortly thereafter to arrest him. A defense witness was found credible that the police knocked, she opened the door, and police barged past her without consent to go upstairs for “safety purposes” and they looked for defendant and seized a gun. After a consent to search was signed, they found another gun. The trial court, however, found her testimony irrelevant to what happened upstairs since she saw nothing. The Illinois Court of Appeals reversed because there was no exigency to dispense with a warrant, despite the recent formation of PC to arrest. People v. Shanklin, 367 Ill. App. 3d 569, 305 Ill. Dec. 293, 855 N.E.2d 184 (2d Dist. September 5, 2006, released for publication October 19, 2006):

The trial court believed Ruby Evans–the entry into the Evans’ home was nonconsensual. The police did not have an arrest or search warrant when they entered the house uninvited and walked up the stairs to the defendant’s bedroom. Those findings by the trial court are not against the manifest weight of the evidence. The remaining issue is whether exigent circumstances justified the arrest and seizure.

The defendant’s right to be free from governmental intrusion into his own home is “at the very core of the fourth amendment.” Payton, 445 U.S. at 589-90. To justify a warrantless entry, the circumstances must “militate against delay and justify the officers’ decision to proceed without a warrant.” Abney, 81 Ill. 2d at 168-69. We do not see those circumstances in this record.

The murder occurred on December 20, 2001. Police officers interviewed Candice Hibbler at about 9 a.m. on Monday, January 7, 2002. That interview apparently established probable cause to arrest the defendant. Police officers arrived at the Evans’ home at 10:30 a.m. or 11 a.m. They made no attempt to obtain an arrest or search warrant.

Detective Claeson, the only police officer who testified at the suppression hearing, did not attempt to explain the failure to obtain a warrant. Certainly, several judges were available to the officers on a Monday morning in Chicago. Nor did Claeson testify he had any reason to believe the defendant posed a danger to the arresting officers. There was no evidence the defendant had been seen with a weapon during the seventeen days since the shooting. The offense had not been recently committed. See Abney, 81 Ill. 2d at 159. And there was no evidence the defendant would escape if he were not swiftly apprehended. See People v. Yates, 98 Ill. 2d 502, 515, 456 N.E.2d 1369, 75 Ill. Dec. 188 (1983). That is, “the passage of time between the commission of the offense and the arrest has a significant bearing on claims of exigency.” White, 117 Ill. 2d at 217.

In White, 117 Ill. 2d at 218, our supreme court held the lapse of nearly two weeks between the commission of the crime and the discovery of the suspect’s whereabouts rendered it “extremely unlikely that an additional several hours of delay to obtain a warrant would have enabled the defendant to escape or permitted him to commit another serious crime.” In Abney, 81 Ill. 2d at 170, the court noted that the lapse of time between commission of the crime and the discovery of the suspect’s whereabouts would make it much less likely that any additional “delay to obtain a warrant would have impeded a promising police investigation and conceivably provided the added time ***needed to avoid capture altogether.”

We are dealing with a “basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Groh v. Ramirez, 540 U.S. 551, 559 (2004), quoting Payton, 445 U.S. at 586. To rebut that presumption we must find “the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393-94 (1978). We see no such exigencies in this record. The State fails to offer any good reason why an arrest warrant was not obtained in this case. If the facts of this case are enough to authorize a nonconsensual entry and arrest in a private home, the “basic principle of Fourth Amendment law” referred to by the Supreme Court has little meaning. Not much would be left of the warrant requirement.

We find the trial court erred when it denied the defendant’s motion to suppress the gun.

Running “wants or warrants” on a traffic detainee is not a violation of the Fourth Amendment. People v. Roberson, 2006 Ill. App. LEXIS 802 (4th Dist. August 23, 2006).

Consent at the hospital for a blood draw when an officer smelled alcohol on defendant’s breath after an accident which killed another was valid. Defendant was Mirandized before consent was sought. Manslaughter conviction affirmed. Sumrall v. State, 2006 Miss. App. LEXIS 404 (September 5, 2006).

Furtive gestures from a known drug dealer stopped for speeding justified getting defendant out of the car during the stop. State v. Stone, 634 S.E.2d 244 (N.C. App. September 5, 2006).*

Evidence supported trial court’s findings that defendant’s female roommate consented to search of the premises where evidence was found linking defendant to a rape. State v. Dock, 2006 N.C. App. LEXIS 1923 (September 5, 2006).*

Trial court’s finding that officer could see defendant’s expired inspection sticker justified stop. Defendant’s quibbling over the “conclusory” nature of the officer’s testimony was a matter for the trial court and the appellate court must defer to the factual findings. Alternatively, defendant consented to a search of the car, and the officer had probable cause already. Myers v. State, 203 S.W.3d 873 (Tex. App. – Eastland September 7, 2006).*

A probate court order that authorized a pickup of the plaintiff on a mental commitment was governed by the Fourth Amendment, and the fact the plaintiff’s address was not shown in the court papers. Motion to suppress evidence found granted. United States v. Sullivan, 2006 U.S. Dist. LEXIS 73859 (M.D. Ala. August 18, 2006):

The emergency order alone is insufficient to support a reasonable belief on the part of the deputies that the Yarbrough Circle address was, in fact, Yeager’s “dwelling,” rather than merely her “location,” as required by the first part of the Bervaldi test — if, indeed, the deputies even harbored this belief. See supra at n. 3. Nothing in the record indicates that the deputies conducted any investigation, other than reviewing the emergency order — for example, by checking a telephone directory or verifying the receipt of mail, seeking information from neighbors or relatives, or observing activity at the house — to confirm that the Yarbrough Circle home was in fact Yeager’s residence prior to their entry.

Officer had reasonable suspicion for detention of the defendant, who had been found passed out at the wheel of his car in a convenience store parking lot. Paramedics said he was “acting weird” and likely on drugs, but he was medically cleared. Defendant said he fell asleep drinking coffee and lived a few doors away, and that was inconsistent with the prior version. United States v. Bailey, 2006 U.S. Dist. LEXIS 73878 (D. Utah October 10, 2006).*

Plaintiffs stated claims for discriminatory or unconstitutional stops based on the Fourth Amendment but they failed on a Fourteenth Amendment claim on summary judgment, except a plaintiff who showed that race was a possible factor coupled with reports from the police department that race should not be a factor in stops. Maryland State Conf. of NAACP Branches v. Maryland State Police, 454 F. Supp. 2d 339 (D. Md. September 29, 2006).*

Federal action that was but an appeal from a state court decision on the same issue was barred by the Rooker-Feldman Doctrine. Johnson v. City of Prospect Hts., 2006 U.S. Dist. LEXIS 73649 (N.D. Ill. September 27, 2006)*:

The Rooker-Feldman doctrine mandates that district courts do not have subject-matter jurisdiction to hear claims which are essentially appeals from the state courts. Burke v. Johnston, 452 F.3d 665, 667 (7th Cir. 2006). “It applies to cases brought by state court losers complaining of injuries caused by state court judgements… inviting district court review and rejection of these judgements.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005). The Seventh Circuit instructs that the “doctrine applies only where a litigant seeks to overturn a state-court judgment.” Kathrein v. McGrath, 2006 WL 287433 (7th Cir. 2006).

Defendant was challenging six separate searches in a general motion to suppress, which the court snidely commented on. “Although Defendant has made little effort to explain to the Court why certain searches and seizures were unconstitutional, the Court will nonetheless analyze all six searches under prevailing Fourth Amendment jurisprudence.” All were found valid searches. Of particular note was an entry into a garage to notify the occupant that defendant had been arrested, and a plain view occurred. “Defendant asked Officer Kenan to notify Nash that he was being arrested and that she needed to pick up their child from daycare. The evidence shows that the officers’ visit to 1839 McCallum was undertaken in order to accomplish that task, not to investigate the crime.” United States v. Barr, 454 F. Supp. 2d 229 (E.D. Pa. September 28, 2006).*

Driving a snowmachine on the sidewalks of Fairbanks was sufficient cause for a stop. DUI affirmed. Bessette v. State, 2006 Alas. App. LEXIS 156 (October 6, 2006).*

Stop of known burglar within a block of a burglary report was reasonable. He dropped his backpack and walked to the officer. Another officer retrieved the backpack and in it was stuff from another burglary. The backpack was found to be abandoned because it was 60′ away from defendant. People v. Novakowski, 2006 Ill. App. LEXIS 911 (1st Dist. October 6, 2006):

In the instant case, shortly after investigating a residential burglary a block away, Officer Salas witnessed defendant drop his backpack and walk toward Salas’s marked squad car. As he approached, Salas recognized defendant to be a suspect in other resident burglaries. Accordingly, we find that it was objectively reasonable for Salas to initiate a stop for investigative purposes.

Moreover, Salas’s questioning was reasonably related to the initial purpose of the stop. Although nothing was reported missing from the initial burglary, it was not unreasonable to question defendant about the contents of a backpack that he suspiciously dropped prior to approaching Salas. When defendant failed to respond to the question, Salas articulated his purpose for continuing to question defendant. Defendant, however, was still unable to provide a clear answer regarding his prior whereabouts. Throughout the questioning, defendant was evasive and appeared noticeably nervous. Defendant’s responses aroused further suspicion in Salas’s mind, adding to more than an individual merely being present in an area of expected criminal activity. See People v. Beverly, 364 Ill. App. 3d 361 (2006); see also James, 365 Ill. App. 3d at 853 (“investigatory stops are evolving encounters and *** the court is not limited to considering the situation as it existed at the precise moment the stop occurred”). Consequently, we find that the initial Terry stop was valid.

Defendant next contends that his fourth amendment rights were violated when his backpack was searched. The State responds that defendant’s backpack was abandoned and, therefore, there was no “search” for fourth amendment purposes. [It was held to be abandoned because of the distance from him because anyone could have perceived it as abandoned.] Therefore, Salas’s “search” of the backpack was proper.

Home Depot is running an ad this month (click on “Pulled Over Santa”) where Santa Claus is pulled over by an officer who asks for his license and registration. Santa can’t find the registration, and he sits back looking resigned to the fact that something bad may be in the offing. The elf nervously waves to the officer. The officer then asks: “What’s in the bag?”

So, if kids, or even the general public, see this ad, are they supposed to believe that it is legally permissible for a police officer during a traffic stop to ask “What’s in the bag?”

The ad is funny on one level because it shows the reality of stops of suspicious characters. It is deathly serious on another level if the public thinks that this police conduct is de rigueur and lawful. (The ad appears to have been produced in Canada for Home Depot.)

Update: No, there is no reasonable suspicion. There is no excessive nervousness, failure to make appropriate eye contact, talkativeness, or furtive movements from Santa or the elf or overpowering smell of air fresheners or obvious modifications to the sleigh for a compartment where contraband could be hidden. Also, it appears unlikely from the video that there was any a bona fide moving violation to pull the sleigh over in the first place. There was, however, no registration in hand. That does not, however, translate into justification for the officer to ask “What’s in the bag?” How many innocents are stopped and subjected to the same routine for every one that gets arrested? Without police stop statistics, we can never know.

A few years ago, I bought an enlargement of NACDL’s Champion cover that showed Santa Claus being rousted, hands up and “assum[ing] the position” at the border by officers from every police agency, going through the sleigh and his bag. The ATF bomb disposal expert examining a box is the best character of the six shaking down Santa Claus. I pull that one out every year to get into the Christmas cheer. And this was before some of the media manufactured a “War on Christmas.”

Trial court’s holding that search was overintensive and went into drawers unnecessarily was conceded on appeal, so state argued consent. Trial court’s finding that consent was not proved voluntary was supported by the record. State v. Siliski, 2006 Tenn. Crim. App. LEXIS 747 (September 27, 2006):

Because the trial court accredited the testimony of Investigator Brown, we take as true his account that the defendant told him, “I have nothing to hide, you can search where you want to search, I have nothing to hide, I have done nothing wrong.” According to Investigator Brown, the defendant made this statement after he informed her that he had a search warrant. We conclude that the defendant’s statement did not constitute consent to search in excess of what was authorized by the search warrant. Rather, we view the defendant’s statement to be “no more than acquiescence to a claim of lawful authority.” Id. at 549. In Bumper, the United States Supreme Court held that consent to search is not valid when it is given only after authorities conducting the search assert that they have a search warrant. Id. at 548. The Court rationalized that such a situation involves “coercion-albeit colorably lawful coercion.” Id. at 550. Our supreme court interpreted Bumper to mean that the state “must show by clear and convincing evidence that the consent is not based on the warrant and was not coerced by other factors.” Earls v. State, 496 S.W.2d 464, 467 (Tenn. 1973).

Frisk of man in parking lot at night where cars had been broken into was not based on reasonable suspicion. State v. Martinez, 135 Wn. App. 174, 143 P.3d 855 (September 28, 2006). From the court’s summary:

Article I, section 7 of our state constitution requires that an investigatory stop be based on articulable particularized facts that support a substantial possibility that a person is engaged in criminal activity. State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). Here, an officer was patrolling on foot in an apartment complex located in a high crime area. Vehicle prowling had been reported there in the past. The officer saw Jeremiah Martinez near several parked cars. Mr. Martinez walked quickly away. The officer asked him whether he lived there. Mr. Martinez said he did not. So the officer detained and frisked him while he checked his identification. This seizure was not based on a particularized suspicion of criminal activity by Mr. Martinez.

LA Supreme Court already decided the search issue in the case, and it was binding on remand. State v. Strange, 940 So. 2d 819 (La. App. 3d Cir. September 27, 2006), on remand from State v. Strange, 876 So. 2d 39 (La. 2004).*

Where a motion to suppress in a PCR petition was not shown to be possibly successful, defense counsel could not be ineffective for not pursuing it. Terry v. State, 2006 Tenn. Crim. App. LEXIS 746 (September 27, 2006).*

In a sex abuse case, a week before trial, the state sought a search warrant for photographs of defendant’s penis to show whether he had been circumcised. The officers went before a different judge who did not know about the pending criminal case, and the defense was not given notice in violation of the state discovery rules. The trial court quashed the photographs as evidence, leaving the state to prove it otherwise. The appellate court affirmed, finding bad motives in the police. People v. Turner, 367 Ill. App. 3d 490, 305 Ill. Dec. 229, 854 N.E.2d 1139 (2d Dist. August 22, 2006, released for publication October 13, 2006):

We further question Investigator Pleasant’s intentions. He averred that he had numerous years of experience specializing in child sexual abuse cases, yet, he failed to ask the prosecutor whether it was permissible to take the complaint for warrant to a judge other than the presiding judge. He also claimed under oath that he informed Judge Ceckowski that this case was pending before Judge Rossetti, but Judge Rossetti’s account of her conversation with Judge Ceckowski contradicts his claim.

We agree with defendant that the photo session was inherently intrusive, degrading, and humiliating. Pleasant admitted during the hearing that, at one point in the session, defendant told him that he had been embarrassed enough and pulled up his pants, only to be threatened with force if he did not allow more photos to be taken. Pleasant also admitted that, upon being threatened, defendant asked to talk to his attorney. However, Pleasant did not stop the session and call defense counsel. Instead, he told defendant that counsel “was being made aware” of the photo session, thereby insinuating that counsel knew what was happening and approved of it, which was not the case.

Reasonable suspicion existed for stop of man on bicycle who stopped in street when car drove up at 1 a.m. It was an apparent drug deal going down. As they approached bicycle, defendant abandoned drugs. Huffman v. State, 937 So. 2d 202 (Fla. App. 1st Dist. August 24, 2006).*

Whren does not alter the reasonable suspicion standard; it merely explains it. United States v. Delfin-Colina, 464 F.3d 392 (3d Cir. September 22, 2006):

While this court has not directly addressed the question whether Whren has changed the law of traffic stops, we find persuasive the Ninth Circuit’s reasoning in Lopez-Soto. As discussed in that opinion, there is little in Whren to suggest that the Court meant to create a new probable cause standard in the context of investigatory traffic stops. Instead, the Court in Whren was responding to the situation before it — one in which the officer obviously possessed probable cause. Indeed, though the Court has never explicitly returned to the question post-Whren, the Court has later made mention of brief, investigatory stops of “persons or vehicles” in the context of reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 273 (2002). This lends support to our understanding that Whren was not conceived as altering the longstanding reasonable suspicion standard recognized in the traffic-stop setting. Thus, we now join our sister circuits in holding that the Terry reasonable suspicion standard applies to routine traffic stops.

The Fourth Amendment applies to entry on to real property. Presley v. City of Charlottesville, 2006 U.S. App. LEXIS 24048 (4th Cir. September 22, 2006):

The Fourth Amendment’s protections against unreasonable seizures clearly extend to real property. See, e.g., United States v. James Daniel Good Real Property, 510 U.S. 43, 52 (1993) (noting that the Fourth Amendment applies to the seizure of a four-acre parcel of land with a house); Freeman v. City of Dallas, 242 F.3d 642, 647 (5th Cir. 2001) (en banc) (“[T]he City seized the Freemans’ real property for demolition.”). Nevertheless, the district court held that Presley had failed to allege a Fourth Amendment violation. The court offered two grounds for its holding; we find neither persuasive.

In NY, a “no bill” from a grand jury is not a finding of no probable cause. Houghton v. Culver, 452 F. Supp. 2d 212 (W.D. N.Y. September 21, 2006):

I note that the fact that the grand jury returned a “no bill” is not dispositive of the issue of whether defendants had probable cause to arrest plaintiff. See Phillips v. Corbin, 132 F.3d 867, 869 (2d Cir. 1998) (“the grand jury’s refusal to indict Phillips does not, as a matter of law, establish that the officers lacked probable cause to arrest her”); Vonritter v. Town of Bethel, Connecticut, No. 91-CV-612, 1993 WL 83291, at *3 (N.D.N.Y. Mar.15, 1993) (finding existence of probable cause to arrest although three months later the grand jury returned a “no bill”).

A criminal defense lawyer charged with obstruction of justice had a reasonable expectation of privacy in phone calls with his client, Holyoke, from the jail, so the recordings were suppressed. United States v. Novak, 2006 U.S. Dist. LEXIS 71281 (D. Mass. September 26, 2006):

In apparent recognition of the traditional sanctity of conversations between attorney and client and the requirements of state regulations, in this case, the Jail attempted to exempt attorney-client calls from its general monitoring procedure. The attempt, however, was poorly executed. First, as noted above, Securus, using a database of Massachusetts attorneys, created a list of telephone numbers that were to be exempt from monitoring. The list was flawed because it did not include Novak’s telephone number, despite the fact that Novak’s number was listed in the Lawyers’ Diary. Second, the evidence establishes that there was essentially no communication, either to inmates or to attorneys, of the Jail’s policy regarding the exemption from monitoring of attorney-client calls, or the procedure that the Jail used to identify attorney phone numbers so as to exempt them from monitoring. Because the calls to Novak’s office were answered by his secretary, and routed to Novak after the warning message was received, Novak did not hear the warning of potential monitoring played at the beginning of the phone call. He therefore was not placed on notice that his normal expectation of confidentiality might be different with respect to the call from Holyoke.

Drug arrest seven months earlier was too stale for reasonable suspicion for a probation violation search. People v. Ward, 2006 Ill. App. LEXIS 891 (5th Dist. September 29, 2006).

Affidavit for search warrant was specific because it sufficiently alleged that there was evidence of a crime at the place to be seached (Zurcher) and not just that the defendant was the holder. United States v. Allen, 2006 U.S. Dist. LEXIS 71189 (N.D. Okla. September 29, 2006).* Similar is United States v. Flynn, 2006 U.S. Dist. LEXIS 70942 (W.D. Pa. September 27, 2006)* (“although the affidavit must set forth the nexus between the items to be sought and seized and the place to be searched, direct evidence linking the place to be searched with a crime is not required for a warrant to issue.”).

Plaintiff’s claim he was choked to retrieve a cocaine baggie that he attempted to swallow was not a constitutional violation, but his allegation of a second choking was. Stokes v. Porretto, 2006 U.S. Dist. LEXIS 71060 (S.D. Tex. September 29, 2006).*