Under Franks, officers should inform magistrates of prior searches, but failure to do so does not automatically invalidate the search. Here, that omission was not material under Franks. United States v. Hough, 2006 U.S. Dist. LEXIS 58030 (N.D. Cal. August 7, 2006):

The defense aptly notes dicta in Whitworth in which the Ninth Circuit asserts it “does not believe it is proper for law enforcement officials to withhold information regarding prior searches of the same premises from magistrates considering warrant applications.” Whitworth, 856 F.2d at 1281. While the court cautioned that “the better practice is to advise the magistrate that an earlier [search] has been conducted and provide the reasons why a warrant is still required,” the court found that “notwithstanding [its] disapproval of the government’s strategy,” it agreed with the district court that omission of the previous search did not necessitate a Franks hearing. Id. at 1281-82 (noting that failure to disclose prior search could not have affected magistrate’s decision to issue warrant, as warrant application did not rely on evidence seized or discovered during prior searches).

Thus, omission of case history does not necessarily invalidate a search warrant.

Delay in computer search not unreasonable: Defendant’s housemate found child porn on his computer and reported it to police. Defendant was on parole, and admitted in his pleadings that he knew he was subject to a parole search at any time. The fact his computer was not subjected to forensic analysis until a month after it was lawfully seized under the parole search is not unreasonable. Id.

Warrant was sufficiently particular to justify seizure of guns and gun cases and also drug paraphernalia. The GFE exception was applied, however, to seizure of loose change. United States v. Blari, 2006 U.S. Dist. LEXIS 57946 (W.D. Pa. January 14, 2006):

As to the loose change, assuming this was not encompassed by the category described in the warrant for “United States currency . . . indicative of illegal drug trafficking,” the officers were acting in good faith in believing the change fit that description.

(Leon, by its own term, however, seemingly does not apply to execution of warrant issues. That is not how it is generally being interpreted.)

Officer had reasonable suspicion for detaining defendant in a bar. His activity strongly suggested drug dealing in the ladies’ bathroom. United States v. Bonner, 2006 U.S. Dist. LEXIS 57944 (W.D. Pa. January 12, 2006)*

PC not shown between informant’s observations and possible theft. “Here, there is no indication that the items described by the informant were consistent with the description of the items taken from the victim. The document failed to establish a nexus between the crimes against the victim and the place to be searched. As conceded by the state, the affidavit in support of the search warrant did not establish probable cause and was, therefore, improperly issued.” The items can hardly be considered to be “voluntarily surrendered” in the face of a warrant that turns out to be invalid. Consent as a fall back position for the state also failed because of the absence of evidence in the record from which anyone could conclude that the alleged consent was voluntary. Since the state carried the burden on that, it failed. State v. Anderson, 2006 Tenn. Crim. App. LEXIS 628 (August 17, 2006).

Search issue was resolved in first appeal, and it would not be revisited after retrial and in the second appeal. State v. Vaughan, 2006 Tenn. Crim. App. LEXIS 630 (August 16, 2006):

Under the “law of the case” doctrine, when an initial appeal results in a remand back to the trial court, the decision of the appellate court established the law of the case, which must be followed on remand by a trial court and an appellate court upon a second trial and appeal.

PC shown under TN’s Aguilar-Spinelli standard. In executing search warrant for counterfeiting evidence, search of necessity will take officers into closed places. State v. Lewis, 2006 Tenn. Crim. App. LEXIS 634 (August 16, 2006):

During their authorized search for the above extensive list of items connected to the suspected counterfeit check operation, the officers would necessarily have opened dresser drawers, searched in closets and shelves, and looked under furniture, thereby uncovering not only the original bag of cocaine but also the other items, including the police scanner, plastic bags, and scales, which Agent Robbins testified that he recognized from his experience as associated with the sale of illegal drugs. We conclude, therefore, that the trial court did not err in denying the defendant’s motion to suppress.

Officers were executing a search warrant when a car pulled into the driveway. Defendant was surrounded by police, including one with an M16 over the shoulder, and he was ordered to show his hands. He was seized at that moment and not free to leave. His showing up at the scene of the search was not inherently suspicious, as were none of his other actions. Search suppressed. People v. Tate, 2006 Ill. App. LEXIS 734 (2d Dist. August 10, 2006):

In this case, the officers testified that they were on either side of the vehicle, it was dark, and they were shining flashlights into the vehicle. Quadraro, who was on the driver side, used “loud, repetitive commands” for defendant to show his hands. Coppotelli, who had walked up to the passenger side with a third officer, opened the passenger-side door of the car and also yelled for defendant to show his hands. Furthermore, Coppotelli was carrying an M16 rifle. The number of police officers surrounding the vehicle, the officers’ tone of voice, and the presence of a weapon lead us to believe that a reasonable person would not have felt free to terminate the encounter.

Based upon this evidence, defendant was seized when his vehicle was surrounded and he was “commanded” to show his hands. To decide otherwise would mean that the encounter was initially consensual and defendant could have refused to show his hands and terminated the encounter. That was obviously not the case here, as defendant was pulled from the car when he failed to show his hands. See People v. Smith, 331 Ill. App. 3d 1049, 1055, 780 N.E.2d 707, 269 Ill. Dec. 235 (2002) (noting that a refusal to comply with an officer’s request during a consensual encounter cannot establish the basis for a seizure). We also note that Quadraro testified that even if defendant had shown his hands he would been detained. We agree with defendant that his failure to display his hands cannot be a factor in determining whether the officers had a reasonable suspicion, because it took place after his seizure.

The NSA case, posted here, is now published: American Civil Liberties Union v. National Sec. Agency, 438 F.Supp.2d 754 (E.D.Mich. Aug 17, 2006).

Officers could reasonably believe that consenter had common authority to consent. They saw her walk into the front door of the defendant’s house shortly before the police coming to the door, and that indicated her common authority to them because she was free to come into the property on her own. United States v. Fregoso-Bonilla, 2006 U.S. Dist. LEXIS 64185 (E.D. Wis. September 7, 2006):

Further, just a few minutes before he approached the home, Gibson saw Pilar-Fregoso enter without knocking. This manner of entry supported the reasonableness of Gibson’s belief that Pilar-Fregoso possessed the authority to let him in. Pilar-Fregoso readily admitted the agents, without calling to anyone in the house for permission or even looking back into the house. There is no evidence (and defendants do not argue) that Pilar-Fregoso’s consent to the entry was other than voluntary. Based on these circumstances, I find that it was reasonable for Gibson to believe Pilar-Fregoso possessed authority to consent to the entry.

Pro se § 1983 suit against officers while criminal case was pending sought to imply future invalidity of criminal charges and was barred by Heck. Massey v. Edmonson County Soc. Servs. Bur., 2006 U.S. Dist. LEXIS 64128 (W.D. Ky. September 6, 2006).*

Citizen informant called 911 about erratic driver and followed him. She remained on the phone with police dispatch which was talking with an officer who took up following defendant’s car. The officer also saw erratic driving. Defendant got out of the car and was followed into a convenience store. The officer had reasonable suspicion to stop the defendant. State v. Littles, 2006 Tenn. Crim. App. LEXIS 684 (September 7, 2006).*

The NSA’s broad wiretapping program that sweeps into its perview non-terrorism suspects, including journalists, lawyers, and scholars, was declared unconstitutional by U.S. District Judge Anna Diggs Taylor of the Eastern District of Michigan. American Civil Liberties Union v. National Security Agency, 438 F.Supp.2d 754 (E.D. Mich. August 17, 2006). The opinion appears here. It was a resounding defeat for the Bush Administration.

CNN.com summarizes as follows:

The defendants “are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (TSP) in any way, including, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III,” she wrote.

She further declared that the program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III.”

She went on to say that “The president of the United States … has undisputedly violated the Fourth [Amendment] in failing to procure judicial orders.” (bracketed material added)

The NYTimes.com article is here, the LATimes.com article is here, and the Detroit Free Press is here.

The Washington Post article is here, and also adds this quote from the opinion:

“It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” she wrote. ” . . . There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.”

Judge Diggs was appointed by President Carter in 1979.

Perhaps not ironically, the U.S. Supreme Court’s biggest national security search case was United States v. United States District Court for the Eastern District of Michigan (Keith), 407 U.S. 297 (1972). The government lost that case, too.

Recording sounds in police car is not an unreasonable search. After defendant was placed in patrol car, he made a cellphone call, and the patrol car’s recording equipment recorded his end of the call. He had no objective reasonable expectation of privacy in the back seat of the patrol car because he could see the camera. While the Sixth Circuit has not addressed the issue, other courts have, and they conclude there is no reasonable expectation of privacy in the back of a patrol car, even if the defendant thought that his words would not be overheard. United States v. Jones, 2006 U.S. Dist. LEXIS 63578 (S.D. Ohio September 6, 2006).

Defendant was stopped for a traffic offense, and he refused to cooperate with the officer. The officer grabbed his shirt trying to control him, and slipped out of the shirt and fled on foot. That was an abandonment of the car. United States v. Payne, 2006 U.S. Dist. LEXIS 63772 (W.D. Mich. September 7, 2006).

Minor mistakes in officer’s testimony and reports did not undermine his credibility with the trial court. United States v. Abernathy, 2006 U.S. Dist. LEXIS 63724 (N.D. Ind. September 6, 2006).*

There was a wealth of PC for defendant’s arrest on a kidnapping charge. The court does not even have to reach his Franks challenge to the search of the car involved because he cannot make a threshold showing of standing to contest the search of the car. United States v. Encarnacion-Montero, 2006 U.S. Dist. LEXIS 63622 (D. P.R. September 5, 2006).*

I wrote a brief commentary about ACLU v. NSA here on Thursday.

As the rhetoric begins, I wrote a piece for Talkleft today that is too partisan to appear here.

I have my opinions about the Fourth Amendment, and I cannot always keep them to myself. This website does take positions that cases are wrongly or rightly decided, and that does not detract from its being largely nonpartisan. The Talkleft piece is totally partisan, which is why it is elsewhere.

Read it if you want, don’t if you don’t.

Body cavity searches for cellphones? Reuters has a story today, Hey, I think your lower intestine is ringing…, stating today that cellphones have been found by El Salvadorian jail officials hidden in inmates’ rectums. The article includes a photograph of an x-ray showing a phone.

Will this lead to other more intensive strip searches in the U.S.?

Four prisoners in an El Salvador jail hid cellphones, a phone charger and spare chips in their bowels so they could coordinate crimes from their cells, prison officials said on Wednesday.

The four men, all gang members, wrapped their phones and accessories in plastic and inserted them into their rectums “far enough to reach their intestines,” Ramon Arevalo, director of the maximum security Zacatecoluca prison, said.

Arevalo said the ruse was discovered during X-ray examinations following six weeks of investigations.

The men, members of the ultra-violent Mara Salvatrucha street gang and the first in El Salvador known to go to such lengths to make phone calls in jail, used the cellphones to manage robberies, blackmail and murders outside, Arevalo said.

Investigation started with an investigation of defendant’s child at school. The search warrant for defendant’s premises lacked probable cause because it was hearsay on hearsay and uncorroborated, but it was sufficient under GFE. Court suppresses, however, for violation of the family’s right of parent-child privacy under the due process clause. United States v. McCotry, 2006 U.S. Dist. LEXIS 62777 (S.D. Ind. July 13, 2006):

The court’s findings of fact do not fit completely with either side’s views of the case. All of the evidence pertaining to marijuana upon which the warrant was issued came from an interview of Hollingsworth’s daughter by school social worker Hoyt. The interview took place during instructional time at the elementary school after Hoyt pulled T.H. from class at the request of Officer Denny. The evidence was gathered for the sole purpose of pursuing a criminal investigation of Hollingsworth, and not for any child protective purpose, such as investigating child abuse or neglect.

In light of the court’s factual findings, the question presented here is whether the police may interrogate a young elementary school child at a public school (using a school personnel member as the interrogator) for the sole purpose of a criminal investigation of the child’s parent and not for any purpose relating to child protection, such as in cases of suspected abuse or neglect. Under the court’s findings, this issue is not identical to those argued by the parties, but it is closely related to them. Defendants have made it clear that they believe the school authorities acted improperly in questioning T.H. as part of a criminal investigation, so that the results of the questioning should not have been available to pursue a search of the apartment.

Questions like this do not arise often. Relevant case law is scarce. American police appear not to have made a habit of investigating a parent’s suspected crimes by interrogating young children, especially by using the child’s required presence at school to do so, and by using the friendly and familiar school personnel to carry out the interrogation.

A full discussion of the Fourteenth Amendment’s substantive due process protection of family privacy and family relationships is well beyond the scope of this decision. This court’s reasoning is built in large part on the foundations of the dissenting opinions in United States v. Penn, 647 F.2d 876 (9th Cir. 1980) (en banc), and in particular on the dissenting opinion of then Circuit Judge (now Justice) Kennedy, which relied on cases that recognize a fundamental liberty and privacy interest in family relationships. Some general principles are worth noting.

. . .

The police-sponsored interrogation of T.H. in this case intruded much further into the private sphere of the family, and on the basis of far less evidence or reason for suspicion, than occurred in either Penn or Davies. The police here decided to investigate the suspicious but ambiguous reference to “stuff” only by using T.H.’s state-mandated presence in a public school to question her, and they did so by using the familiar face of the school social worker to carry out the interrogation. The social worker’s questioning of T.H., acting as an agent of the police, must be viewed as a custodial interrogation of the young child. T.H. could not have felt free to leave, even if she had been in a position to make a truly voluntary decision about whether to answer questions about her mother. See Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003) (finding that fourth grade student was seized within meaning of Fourth Amendment when child welfare officials had him removed from class in private school and took him to secluded part of school to question him). Nor could T.H. have felt free not to answer the social worker’s questions, given her young age, the setting, and the social worker’s authority as a school official.

Lexis sent 24 cases this morning, but 20 were updated citations, and one was insignificant.

Videotape showed that stop was lawful, but it did not support the state’s claim that continuing it was. State v. Collins, 2006 Ohio 4155, 2006 Ohio App. LEXIS 4089 (2d Dist. August 11, 2006):

According to the State, the arresting officer “was concerned that there might be a weapon involved,” however nothing in the record supports this assertion. Collins was cooperative and did not engage in any conduct such as furtive movements that would warrant reasonable suspicion he was armed. Contextually, this was an uneventful misdemeanor traffic stop. It is evident instead that Collins’ unlawful arrest occasioned the search of his vehicle, and the shotgun “bears a sufficiently close relationship to the underlying illegality” to warrant exclusion. Id. The trial court erred in overruling Collins’ Motion to Suppress. Collins’ assignment of error is sustained. Judgment reversed and remanded for further proceedings consistent with this opinion.

Note: When there is a videotape of the stop, defense counsel must look at the tape. The number of appellate cases commenting on their independent review of the tape and disagreeing or agreeing with the trial court has been noticably increasing. In addition, the videotape likely has the words of the defendant on it, and that would make it discoverable.

Plain feel during a patdown after police responded to a “shots fired” call revealed crack. The trial court credited the officer’s testimony that it felt “squishy” without being manipulated in violation of Dickerson. State v. Lawson, 2006 Ohio 4158, 2006 Ohio App. LEXIS 4091 (2d Dist. August 11, 2006).*

Question of PC was close, and it was found insufficient. But, it was close enough for GFE to apply to save the search. State v. Fry, 2006 Ohio 4157, 2006 Ohio App. LEXIS 4093 (2d Dist. August 11, 2006):

We conclude that although the issue is close, the affidavit submitted to the magistrate was insufficient to establish the existence of probable cause. Because that issue is very close, and because an experienced prosecutor approved the application for the search warrant, we conclude that the officer who executed the search warrant was entitled to rely, in good faith, upon the warrant. Therefore, we agree with the State that the trial court erred in ordering the evidence suppressed.

Fox 5 News in NYC reported two nights ago that the random airport search selection appears on one’s boarding pass as “SSSS” or “****.” If this is news, Fox 5 doesn’t travel much. They breathlessly reported, Fox News style, that this obviously tips off the terrorists. I noticed it more than two years ago on a Southwest Airlines boarding pass, purchased with a credit card, for a return from from STL where I was arguing in the Eighth Circuit. I just assumed I was targeted because I hadn’t flown Southwest in a while, so their computer didn’t recognize me. Therefore, I get picked for a “random” search. This is neither rocket science nor a state secret, ladies and gentlemen of the press, and it wasn’t hard for me to figure out why I was selected. I knew it was coming when I saw the boarding pass pop out of the boarding pass “kiosk” with four big S’s on it. The TSA screener was really interested in my briefs. He asked what the case was about. Unlike a previous TSA experience, this guy was nice and convivial, and he even directed me to my gate and the restaurant for a respite from my near strip search.

Officer’s subjective motivation for probation search is irrelevant under Knights. Probation search extends to the jacket of a third party staying with probationer because of possibility that the probationer could secrete contraband in pockets of third party. United States v. Santana, 2006 U.S. Dist. LEXIS 56008 (D. Me. August 10, 2006).

In an environmental case over a Superfund site, a state search warrant was issued, and the RI environmental authorities filed a motion to dismiss. The district court held that Younger abstention did not yet apply because there was no state action, as defined by state law, to yet enjoin. Rhode Island Resource Recovery Corp. v. Rhode Island Dep’t of Envtl. Mgmt., 2006 U.S. Dist. LEXIS 56072 (D. R.I. July 26, 2006).*

No cases received today. Yesterday had only three unreported, essentially redundant, fact dependent cases.

In an article on Law.com on August 16th, the trial judge admitted the defendant’s end of a telephone call to his mother he made while in the interrogation room after his interrogators left, leaving the tape recorder running.

He claimed no recollection of the shooting, but he told his mother “He tried to grab the gun, and I pulled away and it went off.”

The article mentions nothing about any reasonable expectation of privacy in a telephone call from an interrogation room, but it is obvious there would be none.

I had the good fortune of having such a recording turned over by the state they made when they hoped to get some admission of a shooting death that the client was saying was accidental. The grief and crying during the telephone call was genuine, and it helped us get a not guilty verdict.

Searching brings up a document, and the phrase is not highlighted. I can’t afford to spend what it takes to get software that highlights searches.

Remember the coding system?

2. Acronyms: These should be obvious to those involved in the criminal justice system:
BOLO = be on the look out
CI = confidential informant
DL = driver’s license
GFE = good faith exception
IAC = ineffective assistance of counsel
LEO = law enforcement officer (a police term, not a lawyer term)
MSJ = motion for summary judgment
PC = probable cause
PO = probation or parole officer
QI = qualified immunity
REP = reasonable expectation of privacy
RS = reasonable suspicion
SI = search incident
SJ = summary judgment
SW = search warrant
UA = urinalysis

1) Several of these acronyms will appear in words. As of yet, we haven’t been able to get the search function to discriminate between “SI” and “CI” and words where “si” or “ci” appear together. For now, search for “Thornton” or “Belton.” It gives a few, but obviously not all. We’re working on an effective way to improve the searches. It may just require starting to spell it all out.

“RS” could appear at the end of a word, but searching for what is or is not reasonable suspicion is not all that helpful because of the sheer number of cases and variety of fact situations. Also, one court may say RS exists on certain facts yet another will not. Cataloging even a signifficant number of these cases is impossible.

2) Case names will be easy, but, remember, you only get a block of cases to look through. There are already nearly 275 segments just for 2006. That translates into approximately 1,300 cases.

3) I attempted to limit the number of cases per post to 5-7. So, a day with 15 cases will be broken into three sections which will facilitate searching.

Mendenhall and Hodari D. can co-exist. The officer tried to stop defendant and he fled. While Hodari D. is potentially subject to abuse, this is not such a case. State v. Young, 2006 WI 98, 717 N.W.2d 729 (July 12, 2006):

[*P46] Adding to these arguments about individual liberty, Justice Stevens maintains that the majority’s decision abandons a standard that permits police officers to “determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” [Hodari D., 499 U.S.] at 643-44 [633-37 (Stevens, J., dissenting)]. Because of these shortcomings, Justice Stevens would reject the Hodari D. test, and instead require a court to evaluate the constitutionality of police conduct based on the conditions at the time the officer took action, when liberty is first restrained and privacy first infringed. Id. at 645.
[*P47] Although we recognize the strength of these critiques, we remain unconvinced that Hodari D. should be discarded. We acknowledge the potential that police officers may rely upon Hodari D. to manufacture reasonable suspicion by attempting to seize individuals in expectation that they will flee. This is not such a case. There is no indication in the record that Officer Alfredson was attempting to induce flight or other suspicious conduct. On the facts here, the concerns prompting the criticism of Hodari D. appear unwarranted.
[*P48] We disagree that adhering to Hodari D. will leave police officers unable to determine in advance whether contemplated conduct will implicate the Fourth Amendment. Contra Hodari D., 499 U.S. 643-44 (Stevens, J., dissenting). As Hodari D. and other decisions suggest, most people will acquiesce with a police show of authority, in which case the Fourth Amendment applies and the exclusionary rule will exclude any evidence obtained in the absence of reasonable suspicion. See id. at 627; Drayton, 536 U.S. at 205. Consequently, before initiating an investigatory stop, police officers must presume that the target of the stop will comply and the protections of the Fourth Amendment’s exclusionary rule will have full effect.
[*P49] The exclusionary rule is the primary means by which Fourth Amendment rights are protected. Its primary purpose is to deter future unlawful police conduct. See Mapp v. Ohio, 367 U.S. 643, 656, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); Knapp II, 2005 WI 127, 285 Wis. 2d 86, P22, 700 N.W.2d 899. The exclusionary rule is not absolute. Id., P23. The benefits of any increased deterrence must be weighed against the substantial social costs exacted. Id., P22. The exclusionary rule “applies only in contexts ‘where its remedial objectives are thought most efficaciously served.'” Id., P23 (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998)). Because a police officer cannot know in advance that a suspect will flee or not comply with a show of authority, and because a police officer must presume that people will comply with orders and thus the officer must adhere to the Fourth Amendment to prevent the exclusion of evidence, we fail to see how rejecting Hodari D. will further deter Fourth Amendment violations. The benefits of extending the exclusionary rule to situations before seizure, when a person does not comply with a police order, appear to be negligible.
[*P50] Under Hodari D. the protection afforded by the exclusionary rule remains unless the person confronted by a show of authority chooses to abandon its protective embrace by opting for self-help flight. Under Hodari D. courts have created an incentive for people to obey police orders without creating an incentive for police to violate the Fourth Amendment. Under Hodari D. courts remain the final arbiter of whether police conduct violates the Fourth Amendment, not the citizen on the street.

I should read cases from my own circuit, but I don’t regularly do so. This was sent to me by a reader.

On Thursday, a panel held 2-1 that the claimant’s flimsy explanations of possession of that much cash justified a forfeiture for what reads like reasonable suspicion of possession of too much cash. United States v. $124,700 in U.S. Currency, 05-3295 (8th Cir. August 18, 2006):

The route and circumstances of Gonzolez’s travel were highly suspicious. Gonzolez had flown on a one-way ticket, which we have previously acknowledged is evidence in favor of forfeiture, see United States v. U.S. Currency in the Amount of $150,660.00, 980 F.2d 1200, 1206 (8th Cir. 1992), and he gave a vague explanation, attributed to advice from an unidentified third person, about why he elected to return by car. Gonzolez purportedly carried $125,000 in cash with him on his flight, for the purpose of buying a truck that he had never seen, from a third party whom he had never met, with the help of a friend whose name he could not recall at trial. This testimony does not inspire confidence in the innocence of the conduct. When he was stopped by the Nebraska State Patrol, Gonzolez was driving a rental car that was leased in the name of another person who was not present, another circumstance that gives rise to suspicion. Then, when Gonzolez was questioned by officers, he lied about having money in the car and about the names of his friends, thus giving further reason to question the legitimacy of the currency’s presence. See $117,920.00 in U.S. Currency, 413 F.3d at 829. The totality of these circumstances–the large amount of concealed currency, the strange travel pattern, the inability to identify a key party in the purported innocent transaction, the unusual rental car papers, the canine alert, and the false statements to law enforcement officers-–leads most naturally to the inference that Gonzolez was involved in illegal drug activity, and that the currency was substantially connected to it.

A completely innocent person would likely lie about having that much cash in the car because it is none of the officer’s business. The fear of theft of the money can apply to police officers as well. (Sheriff’s deputies with a DTF were convicted in my federal district for stealing money from an FBI bait car.)

The District Court also found that a drug dog’s alert on the money had only slight probative value, citing Eighth Circuit opinions in accord. The Eighth Circuit panel rejected the government’s effort to reverse on that ground as well:

The government argues that the district court erred by according only “slight” probative value to the canine alert. That precise language, however, was drawn from one of our decisions, see $84,615 in U.S. Currency, 379 F.3d at 502, and the government in this case presented no expert testimony or other scientific evidence that might warrant a stronger inference. Cf. United States v. Funds in the Amount of $30,670, 403 F.3d 448, 457-59 (7th Cir. 2005). The significance of canine alerts is largely a scientific question, and absent a developed record, we decline to expand on our previous pronouncements in this area.

Even more profoundly surprising is the fact that the claimant was prosecuted for nothing.

Hiding marijuana in acetylene tanks that were hard open may have suggested an expectation of privacy, but turning them over to a third person belied any expectation of privacy. United States v. Cugno, 2006 U.S. Dist. LEXIS 59069 (W.D. Tex. July 28, 2006).*

Civil case over impoundment and inventory of car dismissed. There was a policy, and it was firmly in place, but it was not fully in writing. The fact a paper inventory of the items in the car does not not make it invalid. Poole v. Cassaday, 2006 U.S. Dist. LEXIS 6379 (E.D. Mo. February 17, 2006).*

Seizure of vehicle after arrest for assaulting girlfriend for purpose of towing it from the high crime area where defendant was found was within inventory policy, and actually in defendant’s interests. United States v. Best, 415 F. Supp. 2d 50 (D. Conn. February 14, 2006) (“we (as well as other circuit courts) have considered the likelihood of theft or vandalism when determining the reasonableness of an impoundment.” United States v. Kanatzar, 370 F.3d 810, 813 (8th Cir. 2004)).

Retrieval of digital information from “black box” (actually, “air bag sensor module”) in defendant’s car after fatal crash by state’s accident reconstructionist when the vehicle was seized as evidence of the crime was valid without a warrant. State v. Holladay, 2006 Tenn. Crim. App. LEXIS 152 (February 10, 2006).