Archives for: January 2009


Permalink 09:50:25 am, by fourth, 268 words, 583 views   English (US)
Categories: General

SD: Indian Civil Rights Act made Indian casino hotel security guards governed by exclusionary rule

The Indiana Civil Rights Act, 25 U.S.C. § 1302(2), makes Indian casino hotel security guards governed by the exclusionary rule (surveying cases from other jurisdictions) because casino operations are a part of self-government. State v. Madsen, 2009 SD 5, 760 N.W.2d 370 (2009).

Defendant's home was not improperly seized by securing it until a warrant could be obtained where there was probable cause. United States v. Weeks, 2009 U.S. Dist. LEXIS 5841 (D. Del. January 26, 2009).*

Officer saw defendant, whom he did not recognize, in a high crime area with no trespassing signs, and defendant saw him and walked away from him; reasonable suspicion for stop. United States v. Lashley, 2009 U.S. Dist. LEXIS 5571 (W.D. Ky. January 26, 2009)* (comes dangerously close to giving carte blanche to the "discretion of the officer in the field"; walking away from another in a high crime area seems like a normal response, not a factor in reasonable suspicion).

Defendant passenger in a vehicle failed to show standing to be able to challenge a search of the vehicle where there was confusing proof as to who even owned the car to have given permission to drive it. Even so, the stop was justified by a window tint violation. Questions to the occupants during the ticket writing process were not impermissible. United States v. Gevorkyan, 2009 U.S. Dist. LEXIS 5688 (D. Utah January 27, 2009).*

Checking defendant's license was proper when she was seen asleep at the wheel. When they awoke her, she seemed confused, and her movements were strange. Her license was suspended, and that justified a search incident which produced drug paraphernalia. Goines v. United States, 964 A.2d 141 (D.C. App. 2009).*

Permalink 09:35:36 am, by fourth, 22 words, 325 views   English (US)
Categories: General

NYT: "Justices Step Closer to Repeal of Evidence Ruling "

Today's, by Adam Liptak, Justices Step Closer to Repeal of Evidence Ruling on the potential demise of the exclusionary rule.


Permalink 08:44:27 am, by fourth, 402 words, 407 views   English (US)
Categories: General

KA: Failure to allow vehicle to be moved to avoid inventory was a factor in totality, here favoring defendant

When the State failed to establish that the vehicle operated by the defendant was unattended, illegally parked, or obstructing traffic, and the officers failed to consult the operator or attempt to contact the registered owner regarding disposition, the impoundment of the vehicle was not based on reasonable grounds under the totality of the circumstances. State v. Branstetter, 40 Kan. App. 2d 1167, 199 P.3d 1272 (2009).

Telling a person to come home or be arrested for felony fleeing implicated the Fourth Amendment because the person would not feel capable of freely not complying. Silvan W. v. Briggs, 309 Fed. Appx. 216 (10th Cir. 2009) (unpublished).*

The knock-and-announce statute, 18 U.S.C. § 3109, was not violated by officers entering with their guns drawn after defendant failed to answer the door. United States v. Gladney, 2008 U.S. Dist. LEXIS 106699 (C.D. Cal. January 23, 2009)* (2008 on opinion, but it refers to a January 9, 2009 hearing).

Defendant's consent to look for identification that produced a gun was voluntary. (The court painstakingly looked through the facts and law to determine the issue.) United States v. Fix, 2009 U.S. Dist. LEXIS 6101 (D. Kan. January 28, 2009).*

Officers had probable cause and exigent circumstances from a call about a burglary in progress, and, when they arrived, they saw the door kicked in. (This is not even a close issue.) United States v. Getachew, 2009 U.S. Dist. LEXIS 6191 (N.D. Tex. January 29, 2009):

The circumstances presented to Officers Kirkland and Brumfield and Corporal Penwarden justified their warrantless entry into Getachew's townhouse. First, there was probable cause to believe that an illegal act was taking place. Based on Christopher's account, relayed through a neighbor at his request, a police dispatcher informed the officers that a burglary was in progress at the residence, and that several men in masks had broken in. The crime sounded to the responding officers more like a robbery in progress than a burglary. Officers Kirkland and Brumfield arrived three minutes after being dispatched, and Corporal Penwarden arrived approximately two minutes thereafter. As Officers Kirkland and Brumfield approached the townhouse, they observed that the front door had been kicked in and they saw two men near the door, one of whom had his hands bound in front of him with plastic handcuffs and looked scared. Similarly, as Corporal Penwarden approached the townhouse, he observed that the door had been damaged. Under these circumstances, the officers had probable cause to believe that the townhouse was the scene of a burglary or robbery.

Permalink 07:56:42 am, by fourth, 464 words, 331 views   English (US)
Categories: General

GA: Officers' lack of awareness of a bond search condition did not permit reliance on it by court

Officers working a high crime area with a drug dog. They saw defendant and smelled burnt marijuana. They asked for consent and were refused, so they searched anyway. The trial court sustained the search because defendant was on a bond condition that permitted searches, even though the officers were unaware of it. Remanded for consideration of the officer's lack of knowledge of the bond condition. Cantrell v. State, 295 Ga. App. 634, 673 S.E.2d 32 (2009).*

Defendant was stopped for a traffic offense and nearly immediately consented. The evidence supported the trial court's finding of consent, and the court distinguished defendant's authority (State v. Morelock, 851 S.W.2d 838, 840 (Tenn.1992)) where that defendant consented after five requests for consent. State v. Davis, 2009 Tenn. Crim. App. LEXIS 60 (January 23, 2009).*

One officer on the premises executing a search warrant went to use the bathroom, and he lifted the toilet seat finding a tampon box floating with three watches with sales tags on them which were stolen property. This was a valid plain view. United States v. Watson, 2009 U.S. Dist. LEXIS 5179 (E.D. Pa. January 23, 2009).*

Prescription fraud by doctor case: The warrant sufficiently complied with Rule 41 that the defendant could not claim that he was prejudiced. The probable cause was writing prescriptions for heavy painkillers for CI's who were not effectively treated. The warrant was not overbroad. United States v. Stack, 2009 U.S. Dist. LEXIS 5193 (D. Utah January 22, 2009):

The First Warrant was not a general warrant because it contained the following limitations: Paragraph Three of the First Warrant; the patient list and drug list provided to the searching agents; and the nature of the crime alleged (distribution of a controlled substance). Moreover, the broad scope of the records to be searched was not problematic because the fourteen-page affidavit established probable cause to search the records listed in those five paragraphs. See, e.g., United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997) ("Even a warrant that describes the items to be seized in broad or generic terms may be valid when the description is as specific as the circumstances and the nature of the activity under investigation permit.") (quoting David v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997)); Voss v. Bergsgaard, 774 F.2d 402, 408 (10th Cir. 1985) ("The breadth of a warrant must be justified by the breadth of the probable cause.") (Logan, J., concurring); United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir. 1986) ("The number of files that could be scrutinized ... is not determinative. The search and seizure of large quantities of material is justified if the material is within the scope of probable cause underlying the warrant."). In addition, the amount of documents seized was relatively small compared to the amount of documents in the office. (See Tr. at 19.) See also Voss, 774 F.2d at 405 (execution of search good evidence of whether warrant was overbroad).


Permalink 01:38:32 pm, by fourth, 353 words, 349 views   English (US)
Categories: General

E.D.Tenn.: Defendant's belief it was futile to resist search helped show search invalid

The government failed to prove that defendant's consent was valid. He testified that he consented because he believed it was futile to refuse, and this was not rebutted. United States v. Moore, 2009 U.S. Dist. LEXIS 5259 (E.D. Tenn. January 23, 2009):

The Court finds that though defendant expressly consented to a search of his person, the government did not meet its burden of showing that this consent was freely and voluntarily given. Defendant testified that when Officer Wallace asked defendant if he could search his person, though defendant did not want to be searched, he felt that Officer Wallace "was going to do it regardless." [Tr. at 75.] On cross-examination, defendant elaborated in response to questions from the Assistant United States Attorney ("AUSA"):

AUSA: You are aware of what you can and can't do, when it comes to officers with the KPD, aren:t you?

Defendant: Yes.

AUSA: So you are aware that you do have a choice?

Defendant: Not really. Not in that area. They are going to search you, regardless. It doesn't matter.

AUSA: Regardless of what you think they can do legally, when you are posed a question by an officer "Can I search you?" you know you can answer yes or no, don't you?

Defendant: I mean, you probably could. They still going to do it anyway.

AUSA: You could have answered no, if you wanted to, couldn't you?

Defendant: Like I say, I didn't have a choice.

[Tr. at 76-77.] There is nothing in the record which suggests that defendant was lying about his belief that he was going to be searched regardless of if he had answered no, and, in fact, Officer Wallace's actions immediately prior to defendant giving consent support defendant's testimony that he believed withholding consent would be futile.

Officer had reasonable suspicion for a patdown of the defendant for a knife based on reason to believe he had a knife and bizarre behavior. After defendant could not respond correctly to who he was, it was permissible to extend the stop to determine who he was. United States v. Horton, 2009 U.S. Dist. LEXIS 5505 (N.D. Iowa January 26, 2009).*


Permalink 01:21:58 pm, by fourth, 846 words, 652 views   English (US)
Categories: General

CA9: Manager of corporation had no standing to challenge search of corporate records; affdavit by reference does not need to be attached if it is present

Managerial authority is not enough in a corporation (except for a small one) to have standing to challenge a search of the corporate records. If the affidavit is present at the time of the search, it does not need to be attached to the search warrant for reference to it to be valid. United States v. SDI Future Health, Inc., 553 F.3d 1246 (9th Cir. 2009):

It thus appears that an employee of a corporation, whether worker or manager, does not, simply by virtue of his status as such, acquire Fourth Amendment standing with respect to company premises. Similarly, and notwithstanding the reference to "an independent ... proprietary interest" in Cella, to be merely a shareholder of a corporation, without more, is also not enough. As always, a reasonable expectation of privacy does not arise ex officio, but must be established with respect to the person in question.

. . .

The district court relied on three facts in concluding that Kaplan and Brunk had Fourth Amendment standing: their ownership of SDI, their management of SDI from offices in the building searched, and the security measures SDI took to secure its business records. Our review of relevant precedent indicates that these facts are too broad and generalized to support the district court's conclusion. The security measures that SDI took to ensure the privacy of its business records are relevant only to the standing of the corporation itself, not of its officers. As for Kaplan and Brunk, their ownership and management do not necessarily show a legitimate expectation of privacy. See Hill, 374 F.2d at 873; Cella, 568 F.2d at 1283. Because neither claims to enjoy "exclusive use" of the places searched--that is, the entire SDI office--they each must show a personal connection, along the lines we have drawn out of Anderson, to justify an expectation of privacy.

As to the reference to the affidavit issue:

With respect to the second prong, there appears to be no question that Special Agent Raftery and the search team had copies of the affidavit in their possession when they executed the warrant. Although it is unclear whether each member of the team had his own copy as he conducted the search, the magistrate accepted Special Agent Raftery's representation that "the affidavit was available during the search for reference by any member of the Government's search team." By making the affidavit available, the search team ensured that it "accompanied the warrant" to satisfy the requirements of incorporation. Nothing more is necessary for the affidavit to ensure "that the discretion of the officers executing the warrant is limited." Towne, 997 F.2d at 548 (internal quotation marks omitted).fn10

10 We have long since dispelled any lingering confusion in our case law that the affidavit must be physically affixed to the search warrant. Towne, 997 F.2d at 544-48. We have also clarified that "[t]he documents that are in fact relied upon to serve [the functions of a search warrant] simply are the 'search warrant' for purposes of constitutional analysis." Id. at 548 (addressing the accompaniment requirement). It is true that the magistrate judge questioned how much the search team actually relied on the affidavit to limit its search. As we discuss below, this was in the context of the good faith exception, where the procedural posture in the district court was different. In addition, we have never required actual reliance on an affidavit to meet the second prong for incorporation into a warrant.

SDI argues that the failure of the search team to give a copy of the affidavit to the defendants--which the government concedes--means that the affidavit did not "accompany" the warrant for purposes of this inquiry. Certainly some of our precedents have held that the "purpose of the accompanying affidavit ... is both to limit the officer's discretion and to inform the person subject to the search what items the officers executing the warrant can seize." United States v. McGrew, 122 F.3d 847, 850 (9th Cir. 1997) (internal citation and quotation marks omitted and emphasis removed); see also Towne, 997 F.2d at 548. Eliminating any doubt on this score, we held, in United States v. Grubbs, that "our prior cases unambiguously require officers to present any curative document ... to the persons whose property is to be subjected to the search." 377 F.3d 1072, 1078-79 (9th Cir. 2004), rev'd by United States v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006).

However, the Supreme Court overruled our decision. Grubbs, 547 U.S. at 98-99. The Court explained that "[t]he Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the deliberate, impartial judgment of a judicial officer between the citizen and the police, and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages." Id. at 99 (internal quotation and punctuation marks and citation omitted). Because the Supreme Court has rejected our previous position, SDI's argument that the Fourth Amendment required the search team to provide all defendants a copy of the affidavit fails. We therefore conclude that the warrant did incorporate the affidavit.

Permalink 12:57:16 pm, by fourth, 115 words, 311 views   English (US)
Categories: General

OR: Telling defendant he was free not to consent during illegal stop made consent valid

Search warrant for evidence of forgery permitted a search of defendant's closet which revealed drugs. State v. Hawkins, 225 Ore. App. 355, 201 P.3d 239 (2009).*

Consent to search for weapons did not include consent to open a tinfoil packet in his pocket because it could not possibly contain a weapon. State v. Quale, 225 Ore. App. 470, 202 P.3d 187 (2009).*

While defendant's stop was illegal, the fact that defendant was told that he did not have to consent to a search and the officer told him he was not telling him that he could not put his hands in his pocket in the cold mitigated it all, and it made the ensuing consent valid. State v. Hinds, 2009 Ore. App. LEXIS 56 (January 28, 2009).*

Permalink 09:45:27 am, by fourth, 283 words, 365 views   English (US)
Categories: General

E.D. Cal.: Defendant's statements in a bankruptcy proceeding showed no REP in premises

Defendant's statements in a bankruptcy proceeding where he disavowed any interest in a Las Vegas house showed he had no reasonable expectation of privacy in the house. His post hoc rationalizations were not believed. Going to the merits of reasonable expectation of privacy, he loses there, too. United States v. Burke, 2009 U.S. Dist. LEXIS 4762 (E.D. Va. January 23, 2009):

Prior to the search, at the time of the search, and months after the search, defendant expressly denied living at the residence and having any ownership interest in the residence or in the boxes stored in the garage and the house. His explicit statements and conduct relinquished any expectation of privacy in the place searched and the property seized. His contradictory and self-serving testimony made years after the search during the course of the criminal prosecution is not credible. As such, the court could deny defendant's motion to suppress on this basis alone. See Decoud, 456 F.3d at 1007; United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1990) (denying defendant's motion to suppress because his conduct demonstrates that he did not have a subjective expectation of privacy in the place searched).

Vehicle validly seized by the police was still subject to the automobile exception where there was probable cause. A security sweep of the premises that was strictly limited was valid, too. United States v. Weeks, 2009 U.S. Dist. LEXIS 5841 (D.Del. January 26, 2009).*

Officers had probable cause for something after the PC for drugs evaporated. They had probable cause to believe he was driving on a suspended driver's license, and they learned of the federal investigation. They could continue on the suspended license. Their subjective intent was irrelevant. United States v. Turner, 553 F.3d 1337 (10th Cir. 2009).*


Permalink 09:50:43 am, by fourth, 146 words, 570 views   English (US)
Categories: General

Shining flashlight into car revealing gun after frisk of person standing next to it was valid

Officers responded to a shots fired call, and the defendant was standing with a group in a high crime area leaning against a car with tinted windows. They directed the people to show their hands, which defendant refused. He was handcuffed, frisked, and nothing was found. He was unhandcuffed, and the officer used his flashlight to look in the car, seeing a gun sticking out from under the seat. The use of the flashlight was lawful. District Court's suppression order was valid. United States v. Tyson, 307 Fed. Appx. 664 (3d Cir. 2009) (unpublished).

A knock-and-talk resulted in an alleged consent search of defendant's hotel room. The trial court applied the wrong standard of review on whether a "founded suspicion" was required. The case was remanded to the trial court for findings on the voluntariness of consent. People v. Madden, 58 A.D.3d 1023, 871 N.Y.S.2d 766 (3d Dept. 2009).*

Permalink 09:16:32 am, by fourth, 314 words, 776 views   English (US)
Categories: General

IL: Defendants directed to stand away while officer searched interior were not free to leave when asked for consent to search the trunk

During a valid traffic stop, defendants were directed to stand in a particular place and the officer validly searched the interior, finding nothing. He asked for consent to search the trunk. At the time he asked, the defendants would not feel free to leave. People v. Oliver, 387 Ill. App. 3d 1045, 327 Ill. Dec. 154, 901 N.E.2d 482 (2009):

At the time Hampton requested consent to search the trunk, the defendant and James were still standing at the front and rear of the vehicle, respectively, pursuant to Hampton's earlier directive. Despite having found nothing illegal in the vehicle's interior, Hampton requested consent from James and the defendant to search the trunk. It is reasonable for one in the position of the defendant and James to conclude that: (1) had the defendant and James ignored Hampton's request and made efforts to leave the scene, Hampton would not have simply allowed them to leave; and (2) given the ongoing directive to stand at opposite ends of the vehicle, compliance with the request to search the trunk was compelled. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556, 239 Ill. Dec. 25. Under these circumstances, we find that a reasonable person in the defendant's position would not feel free to leave at the time Hampton made his request. Thus, the defendant and James were subjected to a seizure. See Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556, 239 Ill. Dec. 25.

Anonymous, uncorroborated tip was not enough for probation search. Gordon v. State, 1 So. 3d 1117 (Fla. App. 1st DCA 2009).*

Defendants were stopped for speeding and refused to consent to a search. The officer ordered the defendants out of the car while a dog was called for. Expanding the stop was unjustified, and it was reversed. The presence of an expandable police baton in the door cup holder did not justify a search of the vehicle. Bell v. State, 295 Ga. App. 607, 672 S.E.2d 675 (2009).*

Permalink 08:51:46 am, by fourth, 141 words, 372 views   English (US)
Categories: General

Can't relitigate search in 2255

A 2255 petitioner litigated his motion to suppress in the original criminal case, and he sought to reopen it for post-conviction. The issue cannot be relitigated, and there was sufficient evidence without the product of the search to convict. Stevenson v. United States, 594 F. Supp. 2d 695 (N.D. W.Va. 2009).*

"'[A]ny/all drugs, contraban[d] or items of evidence connected to but not limited to the (scales, pipes, baggies, cash, weapons, documents, etc.) use, [sale], and/or storage of these type items' [is not] so lacking in specificity as to cause the warrant to be constitutionally defective." Ex parte Jenkins, 26 So. 3d 464 (Ala. 2009), aff'g State v. Jenkins, 26 So. 3d 458 (Ala. Crim. App. 2007).

Defendant's stop was justified by crossing the centerline by a half a car width, at least by reasonable suspicion. Bracken v. State, 282 S.W.3d 94 (Tex. App. — Ft. Worth 2009).*


Permalink 04:30:08 pm, by fourth, 1146 words, 728 views   English (US)
Categories: General

SCOTUS: Johnson decided today

SCOTUS decides Arizona v. Johnson, 07-1122, today. Traffic stops are fraught with danger for the officer. A person legitimately stopped for a traffic offense can be told to get out of the car. Once outside the stopped vehicle, the driver may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. The decision was unanimous, and written by Ginsburg.

From the Syllabus:

In Terry v. Ohio, 392 U.S. 1, this Court held that a "stop and frisk" may be conducted without violating the Fourth Amendment's ban on unreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a requirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk (patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes "everyone in the vehicle," the driver and all passengers. Brendlin v. California, 551 U.S. 249, 255.

While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona's gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car's occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him to get out of the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. The trial court denied his motion to suppress the evidence, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court found that, prior to the frisk, the detention had evolved into a consensual conversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review.

Held: Officer Trevizo's patdown of Johnson did not violate the Fourth Amendment's prohibition on unreasonable searches and seizures. Pp. 5-9.

(a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392 U.S., at 24. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a patdown is constitutional. Id., at 23-24, 27. Traffic stops, which "resemble, in duration and atmosphere, the kind of brief detention authorized in Terry," Berkemer v. McCarty, 468 U.S. 420, 439, n. 29, are "especially fraught with danger to police officers," Michigan v. Long, 463 U.S. 1032, 1047, who may minimize the risk of harm by exercising "'unquestioned command of the situation,'" Maryland v. Wilson, 519 U.S. 408, 414. Three decisions cumulatively portray Terry's application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U.S. 106 (per curiam), the Court held that "once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment," id., at 111, n. 6, because the government's "legitimate and weighty" interest in officer safety outweighs the "de minimis" additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110-111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U.S., at 112. Wilson, 519 U.S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on "the same weighty interest in officer safety." Brendlin, 551 U.S., at 263, held that a passenger is seized, just as the driver is, "from the moment [a car stopped by the police comes] to a halt on the side of the road." A passenger's motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U.S., at 414. And as "the passengers are already stopped by virtue of the stop of the vehicle," id., at 413-414, "the additional intrusion on the passenger is minimal," id., at 415. Pp. 5-7.

(b) The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger, but concluded that once Officer Trevizo began questioning him on a matter unrelated to the traffic stop, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. The court portrayed the interrogation as consensual, and, Johnson emphasizes, Trevizo testified that Johnson could have refused to exit the vehicle and to submit to the patdown. But Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer's inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop's duration. See Muehler v. Mena, 544 U.S. 93. A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter with the police and move about at will. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free "to depart without police permission." Brendlin, 551 U.S., at 257. Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Pp. 7-9.

Permalink 08:18:33 am, by fourth, 701 words, 401 views   English (US)
Categories: General

CA7: Failure of particularity in warrant but not affidavit does not lead to suppression

Affidavit for search warrant particularly described what was to be seized but the warrant did not. This was insufficient for suppression of evidence. United States v. Sims, 553 F.3d 580 (7th Cir. 2009):

So just as in United States v. Stefonek, 179 F.3d 1030 (7th Cir. 1999), a case that differs in no material respect from this one, the search was reasonable. But we could not there, and we cannot here, draw the straightforward conclusion that there was no violation of the Fourth Amendment. The Supreme Court, on grounds of policy rather than of text or history--in fact, as we have just noted, in the teeth of the text and possibly of the history of the amendment (depending on whether Taylor or Amar, on the one hand, or Davies on the other, has the better historical case)--has ruled that, though with numerous but immaterial exceptions, a search without a warrant is unconstitutional. (For both the rule and the exceptions, see, e.g., Brigham City v. Stuart, 547 U.S. 398, 403 (2008).) The policy is that of reducing the number of unreasonable searches by requiring that a presumably neutral judicial officer screen police searches. E.g., Johnson v. United States, 333 U.S. 10, 13-14 (1948) (Jackson, J.). "[A]nd although the effective neutrality and independence of magistrates in ex parte proceedings for the issuance of search warrants may be doubted, there is a practical reason for requiring warrants where feasible: it forces the police to make a record before the search, rather than allowing them to conduct the search without prior investigation in the expectation that if the search is fruitful a rationalization for it will not be difficult to construct, working backwards." United States v. Mazzone, supra, 782 F.2d at 759.

Even so, it would not follow that in cases such as this, in which the judicial screening had failed to prevent the search (although it certainly succeeded in creating a written record), the fruits of the search should be suppressed at the defendant's trial. A person whose rights have been violated by a search can be remitted to a suit against the police for committing a constitutional tort. Now that such suits are common and effective, United States v. Langford, 314 F.3d 892, 895 (7th Cir. 2002), the exclusionary rule is bound some day to give way to them. For the rule is too strict: illegally seized evidence essential to convicting the defendant of a grave crime might have to be suppressed, and the criminal let go to continue his career of criminality, even if the harm inflicted by the illegal search to the interests intended to be protected by the Fourth Amendment was slight in comparison to the harm to society of letting the defendant off scot free.

. . .

Groh was a tort case, moreover, not a criminal case. There was no question of excluding illegally seized evidence, hence no concern that the sanction for violating the Fourth Amendment would be disproportionate to the harm caused by the violation. If the plaintiffs in Groh could not prove harm, they would get no damages, rather than escaping punishment for a crime--they were never charged with having committed a crime. We do not think that the fact that our defendant might have obtained some slight psychological benefit from being able to monitor the police search had the police shown him a warrant that described the things they were looking for takes this case out of reach of the "inevitable discovery" doctrine (we might call it the no harm, no foul, doctrine). As we explained in United States v. Cazares-Olivas, supra, 515 F.3d at 728-29, "permitting people to get away with crime is too high a price to pay for errors that ... do not play any causal role in the seizure (the inevitable-discovery situation) .... Groh was a suit for damages; we doubt that the Court would have invoked the exclusionary rule when a description of the things to be seized, though missing from the warrant, appeared in an affidavit that was filed with the court in support of the application and was respected when the search occurred. The inevitable-discovery doctrine, if nothing else, would have foreclosed use of the exclusionary rule in Groh."

Also, the inevitable discovery rule is the "no harm, no foul" exception.

Permalink 07:53:44 am, by fourth, 350 words, 410 views   English (US)
Categories: General

CA8: Trashing house during SWAT no-knock raid was not shown to be unreasonable

Defendant's house was trashed during the no-knock raid by a SWAT team looking for drugs and weapons. It was not shown to be unreasonable under all the circumstances. Officers have discretion how to serve a search warrant. Cook v. Gibbons, 2009 U.S. App. LEXIS 1095 (8th Cir. January 20, 2009) (unpublished):

We conclude that the law-enforcement officers, armed with a valid no-knock search warrant, initially acted reasonably on their belief that Cook was armed and dangerous, given the events that transpired with the CI the night before and morning of the search, given Cook's history of owning a lion and having significant numbers of firearms and storing some of them within the walls in trap doors, and given that they did not see him leave his residence. In other words, it was not "unnecessarily destructive" and was thus reasonable for the breach and entry teams to have introduced OC gas and flash grenades, apparently breaking two windows in the process, before ramming a side door and thereby damaging latches. See Hummel-Jones v. Strope, 25 F.3d 647, 650, 653 (8th Cir. 1994) (how best to proceed in performing search is generally left to discretion of officers executing warrant, but even valid warrants must be executed in reasonable manner); United States v. Baker, 16 F.3d 854, 855-56 (8th Cir. 1994) (officers' use of distraction stun device, without knocking and announcing, was needed to effect safe entry and therefore reasonable where officers possessed information that front door was barricaded and that two Doberman Pinschers were inside); Ginter, 869 F.2d at 388-89 (starting fire to force suspect, reasonably believed to be armed and dangerous murderer, out of house was not unnecessarily destructive). Further, Cook did not refute defendants' evidence that once the residence was breached, it took the entry team an additional thirty minutes to determine no one was present, and we conclude that an objectively reasonable officer, presented with the facts of this situation, could have thought it necessary to tear through the ceiling to access the attic, to use additional diversionary devices in the attic, and to make a hole in one wall to be sure that no persons or weapons were present.

Permalink 07:50:31 am, by fourth, 141 words, 327 views   English (US)
Categories: General

CA11: Under mattress with within "grab area" of man in room

Searching under a mattress was within the "grab area" for search incident purposes. The officers had legitimate fear of the risk of weapons where the person was detained. It was not the defendant, but it led to evidence against the defendant. United States v. Bennett, 555 F.3d 962 (11th Cir. 2009).

An officer pulled up along side a heavily tinted car in a "'very violent' area," and he saw the defendant with his arms raised, cell phone in one hand, money in another. He approached the car, and the arms went down. He asked to see the hands, and the defendant did not respond. He opened the door, and got the defendant out finding a gun in his waist band. This was sufficiently "unusual" conduct under Terry to permit the officer to go further. United States v. Rookard, 307 Fed. Appx. 501 (2d Cir. 2009) (unpublished).*


Permalink 10:33:59 am, by fourth, 734 words, 348 views   English (US)
Categories: General

W.D. Wis.: Maybe first application of Herring; no basis for stop so search was suppressed

Officers lacked reasonable suspicion using a trap-and-trace order to tail a cellphone like it was a beeper a day after a robbery. There was only a hunch as to defendant. Herring would not be applied to salvage this search because it was all tenuous. United States v. Thomas, 2009 U.S. Dist. LEXIS 4389 (W.D. Wis. January 20, 2009):

In any event, the deputies obtained a trap-and-trace order from the state court that allowed them to attempt to locate the telephone and its holder. The day after the robbery, using technology that either is prosaically old school (the court's view) or "voodoo" (defense counsel's view), a caravan of law enforcement officers led by a DCI tech agent chased the telephone northeast up Highway 151 to Fond du Lac. Using the target telephone essentially as a "beeper," the tech agent was able to pinpoint its location to a pump island at a gas station. Considering that the agent completely circled the pump to verify his readings, there can be little doubt that he had the right location.

. . .

Even so, it would not have been unreasonable at this juncture to initiate a police-citizen encounter to explore a bit further. The deputies were in warm pursuit of armed bank robbers and had a strong hunch/weak reason to suspect that the men at the gas station were associated with the bank robbers. Returning to the two-variable calculus employed by the Seventh Circuit for Terry stops, an approach commensurate to the weakness of the evidence perhaps could have been deemed reasonable. But the deputies, for their own safety, initiated a highly intrusive full felony stop of the two cars. Under Tilmon, this is not necessarily a constitutionally unreasonable approach, but there are sufficient factual differences here to question the appropriateness of the tactics used. This was not hot pursuit from the robbed bank during which the suspects undoubtedly still would have been armed, hypervigilant and potentially trigger-happy. The bank robbery had occurred over 24 hours earlier and 75 miles southwest, and there was no actual evidence that any of the four men in these two cars had participated in the robbery or that they currently were armed. The evidence linking these four men to a crime was that one of these men possessed a cell phone that had called two of the suspected robbers (and a third party) 17 times in the two days prior to the robbery.

. . .

But there's a final consideration: notwithstanding the overzealousness of the deputies, is this a case in which it would be unreasonable to apply the exclusionary rule? "Paradigm shift" is a trite and often meaningless phrase, but it might be an apt description of the Supreme Court's recent curtailment of the exclusionary rule as illustrated by Herring v. United States and Hudson v. Michigan, 547 U.S. 586 (2006). Here's the new rule:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the judicial system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.

Herring, 2009 WL 77886 at *7.

The parameters of this new iteration will be determined over time, and perhaps this case will be part of the vanguard. After all, how can you fault tenacious police work that results in the capture of a suspected armed bank robber, even if this capture is the result of some guesses and gut feelings? What sort of police behavior would be deterred by telling the deputies that they cannot use the evidence that they seized from Thomas at the gas station?

But this entire phase of the investigation was based on a miscommunication of a material fact between the investigating detectives and the misstatement of that material fact to the state court in support of the trap-and-trace application. There is no evidence that this was deliberate and I don't doubt that the detectives were putting forth best efforts in good faith in a fast-evolving investigation involving a gang of armed bank robbers. But switching Wilson's statement from "It was not Liggons's phone" to "it was Liggons's phone" in the trap-and-trace application flipped a critical fact in favor of the government. It also led to the detectives significantly overplaying their hand when they stopped, arrested and searched Thomas in the absence of probable cause or even reasonable suspicion.

Permalink 09:40:10 am, by fourth, 500 words, 418 views   English (US)
Categories: General

Cal.2d: Two parole searches in two days was not shown to be harassing; the officer had reason

Defendant was stopped and parole searched twice in 24 hours by the same police officer. Defendant did not show that the search was harassing because the officer had reason to believe defendant was in possession when he was seen the second time. People v. Sardinas, 170 Cal. App. 4th 488, 87 Cal. Rptr. 3d 896 (2d Dist. 2009):

In this case, the trial court heard the testimony of Officer Samuels at the hearing on defendant's motion to suppress and concluded that the December 21 search in the convenience store parking lot was conducted for a legitimate law enforcement purpose and not to harass. There is substantial evidence in the record to support that conclusion. The search in question was conducted directly across the street from an apartment complex known to Officer Samuels as a location where drug trafficking occurred. Officer Samuels also knew defendant was on parole for a drug possession conviction and had observed defendant associating with known drug addicts in the past. According to the trial court, there was no evidence that Officer Samuels harbored any animus toward defendant, and there was evidence that part of Officer Samuels's job was to know the identities of parolees in the City and to patrol areas known for drug trafficking. Therefore, the evidence presented at the hearing on the motion to suppress supported a reasonable inference that Officer Samuels was acting with a legitimate law enforcement purpose when he searched defendant on December 21.

Defendant focuses on the traffic stop the night before the search in question, the ensuing searches of defendant's person, van, and house, and the results of those searches that produced nothing illegal or suspicious. According to defendant, based on those searches, there was no legitimate reason to stop and search defendant less than 24 hours later as he walked through a convenience store parking lot. The gist of defendant's argument is that the temporal proximity between the December 20 and 21 searches, when combined with Officer Samuels's prior six or seven contacts with defendant, belies any legitimate purpose for the search on December 21 and compels the conclusion that the search was harassing. We disagree.

Dangling pine tree air freshener hanging from rear view mirror justified a traffic stop based on the officer's testimony it blocked view out windshield. United States v. McKissic, 2009 U.S. Dist. LEXIS 4019 (W.D. Mich. January 21, 2009).*

Defendant's live-in girlfriend consented to a search of her premises, so defense counsel was not ineffective for not challenging the search under Strickland. United States v. Moses, 2009 U.S. Dist. LEXIS 4083 (E.D. Wis. January 9, 2009).*

Defendant's "generalized objection in the introductory sentences of his objection [to USMJ's R&R] ... is insufficient to prevent waiver." "Regardless of waiver, Salahuddin would not prevail on his motion for suppression of physical evidence because the government met its burden of proving consent to the search. The court finds that Rose consented to a search of the apartment. Therefore, the physical evidence uncovered during the search may be properly admitted into evidence." United States v. Salahuddin, 607 F. Supp. 2d 930 (E.D. Wis. 2009).*

Permalink 09:19:40 am, by fourth, 336 words, 335 views   English (US)
Categories: General

E.D. N.Y.: Touching defendant to direct his movements communicated he was not free to leave

Touching the defendant's elbow to direct and turn the defendant was a seizure because his movement was controlled and impeded. United States v. Bellamy, 592 F. Supp. 2d 308 (E.D. N.Y. 2009):

Certainly, Bellamy's movement was impeded when Officer Ianno took him "by the elbow," turned him around so that his back was facing the officers, and led him up the ramp to the entrance of the Buckingham building. (Tr. 23-26.) Thus, Officer Ianno exerted "physical force" over, and maintained physical contact with, Bellamy. Moreover, both officers restrained Bellamy's liberty by directing him, rather than merely requesting that he move, up the ramp. Bostick, 501 U.S. at 434; Mendenhall, 446 U.S. at 554; see also United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990) (enumerating factors relevant to seizure inquiry, including "physical touching of the person by the officer"). In short, a reasonable person in Bellamy's shoes would not have concluded at that point that he was free to leave. Bostick, 501 U.S. at 434. The court thus concludes that Bellamy was "seized," as that term relates to the Fourth Amendment, when Officer Ianno took Bellamy by the elbow and turned him around and walked him up the ramp. See California v. Hodari P., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) ("[t]he word 'seizure' readily bears the meaning of a laying on of hands or application of physical force to restrain movement").

Seat belt civil infraction justified a stop, even though it was pre-planned. United States v. Holmes, 2009 U.S. Dist. LEXIS 3698 (E.D. Mich. January 16, 2009):

It does not matter that the traffic stop was pre-planned. If probable cause exists, an officer may stop a vehicle for a civil infraction even when his true motivation for the stop is to search for contraband. Hill, 195 F.3d at 264 (citing Whren, 517 U.S. at 812-13). The officer's knowledge or suspicions about the traffic violator at the time of the stop is irrelevant. Ferguson, 8 F.3d at 391. Simply put, "traffic stops based on probable cause, even if other motivations existed, are not illegal." Id. at 392.

Permalink 08:54:50 am, by fourth, 243 words, 510 views   English (US)
Categories: General

VA: Jail seizure of documents not used did not violate Fourth or Sixth Amendment

Defendant was stopped for a traffic offense and her license turned out to be suspended. Because she was subjected to a custodial arrest, a search incident of the car was appropriate. State v. King, 2009 Ohio 173, 2009 Ohio App. LEXIS 118 (5th Dist. January 16, 2009).*

Odor of raw marijuana found during a traffic stop was probable cause. The search of the "cargo area" was proper because that was a place where it could be found. State v. Gonzales, 2009 Ohio 168, 2009 Ohio App. LEXIS 149 (6th Dist. January 16, 2009).*

Odor of raw marijuana was found during a traffic stop, and the defendant's conduct justified the officer searching for safety reasons as well. State v. Haidet, 2009 Ohio 205, 2009 Ohio App. LEXIS 181 (5th Dist. January 20, 2009).*

Police repeating the CI's statement that the defendant's apartment had "1" on the door, but it turned out that it did not, was not a reckless false statement of the officer under Franks. Apartment 1 was searched. State v. Evans, 2009 Ohio 241, 2009 Ohio App. LEXIS 221 (1st Dist. January 23, 2009).*

Defendant's arrest was unlawful, but his assaulting the officer during the illegal arrest was not suppressed. State v. Cook, 273 S.W.3d 562 (Mo. App. 2008).*

Jail seizure of Romanian language documents from defendant's jail cell did not violate Fourth or Sixth Amendments because the documents were not used in the case or to provide investigative leads. It had no effect on the verdict. Gheorghiu v. Commonwealth, 53 Va. App. 288, 671 S.E.2d 407 (2009), opinion withdrawn and replaced Gheorghiu v. Commonwealth, 54 Va. App. 645, 682 S.E.2d 50 (2009) (same result).*


Permalink 10:53:35 am, by fourth, 636 words, 389 views   English (US)
Categories: General

"The End of Privacy" in 61 Stan.L.Rev.

New law review article: Jed Rubenfeld, The End of Privacy, 61 Stan. L. Rev. 101 (2008). A fascinating article. From the Introduction, which is tantalizing about what comes:

How fragile a thing, law.

Not long ago, the notion that Americans could be seized off the streets, arrested, and jailed without probable cause might have seemed laughable. The power to incarcerate on mere suspicion or executive say-so belonged to dictatorships. “We allow our police to make arrests only on ‘probable cause,’” we used to be told; “[a]rresting a person on suspicion, like arresting a person for investigation, is foreign to our system.”

But in 2002, the President of the United States claimed and exercised the power to designate an individual, including an American citizen seized on American soil, an “unlawful enemy combatant”—and to imprison him on that basis, without probable cause and with limited if any judicial review.

Not long ago, it was possible to believe that the government could intercept Americans’ telephone calls only with probable cause and, absent exigent circumstances, judicial authorization. As late as 2004, the President declared:

Now, by the way, any time you hear the United States Government talking about wiretap, it requires—-a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

These statements, it turned out, were not true. As the President would later admit, he had in 2002 personally but secretly authorized (and then repeatedly reauthorized) the National Security Agency (NSA) to intercept Americans’ telephone calls and e-mail messages in certain circumstances without probable cause and without a court order. At the same time, the NSA reportedly procured from major telecommunications companies access to communications data on tens of millions of people unsuspected of any crime.

This Article is about the Fourth Amendment. It is an attempt to recover that amendment’s core meaning and core principles.

Why has the Fourth Amendment, despite explicitly governing seizures of the person, played so minimal a role in the judicial response to the “unlawful combatant” detentions? What allows courts to find no Fourth Amendment search or seizure when the government obtains records from telephone companies or Internet service providers showing whom you have
communicated with and when and for how long?7 What allowed the Sixth Circuit last summer to dismiss a challenge to the NSA’s covert wiretapping on grounds implying that the program might never be reviewed under the Fourth Amendment at all?8 What flaw, in short, in modern doctrine has made the Fourth Amendment so irrelevant to the present search and seizure debates—-and how could it reclaim its relevance? This Article tries to answer these questions.

At the heart of search and seizure law today, there is a kind of doctrinal black hole, known as the “reasonable expectation of privacy.” This concept, the “touchstone of Fourth Amendment analysis,” has never been able to do the work required of it.

. . .

In this Article, I will argue that Fourth Amendment law should stop trying to protect privacy. The Fourth Amendment does not guarantee a right of privacy. It guarantees—if its actual words mean anything—a right of security.

Despite privacy’s triumph, the right “to be secure” that the Fourth Amendment actually protects has never died. It still flickers in the case law and scholarship, even if without much doctrinal function and even if unsatisfactorily defined. By revitalizing the right to be secure, Fourth Amendment law can vindicate its text, recapture its paradigm cases, and find the anchor it requires to stand firm against executive abuse.


Permalink 04:06:42 pm, by fourth, 232 words, 317 views   English (US)
Categories: General

W.D. Ky.: Removing defendant from vehicle at gunpoint is a seizure

Evidence supports the conclusion that there was at least reasonable suspicion for the stop and removal of defendant from vehicle at gunpoint, something clearly a seizure. United States v. Carver, 2009 U.S. Dist. LEXIS 3375 (W.D. Ky. January 15, 2009):

Sgt. Hill was never asked whether he had "placed Carver under arrest" at the time he removed him at gunpoint from the vehicle, handcuffed him, and removed him from the immediate vicinity of the vehicle. We think that such action quite clearly amounted to a Fourth Amendment seizure as, under the circumstances, a reasonable person would have believed he was not free to leave. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), quoting, U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), (and noting that the subjective intent of the officer was not relevant); Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)(Harlan, J. concurring). As the encounter developed, the officers' initial thoughts about what might occur were rapidly replaced with what actually occurred.

The search warrant authorized a search of defendant's vehicle parked on the curtilage. United States v. Silva, 593 F. Supp. 2d 316 (D. Mass. 2009).*

Defendant who admitted to ownership of crack and gun seized from an apartment that was not his did not show standing to contest the search of the apartment. United States v. Morgan, 2009 U.S. Dist. LEXIS 3812 (N.D. N.Y. January 21, 2009).*

Permalink 03:30:29 pm, by fourth, 183 words, 318 views   English (US)
Categories: General

TX: Grandfather had no apparent authority of grandson's closed room

Defendant lived with his grandfather as a housemate. The police could not reasonably believe the grandfather had apparent authority to consent to an entry into his grandson's separate bedroom with a shut door. The evidence of apparent authority was ambiguous at best. Hubert v. State, 2009 Tex. App. LEXIS 249 (Tex. App. – Corpus Christi January 15, 2009).*

Stop for turn signal even though no traffic was interfered with was still a violation, and that supported the stop. State v. Bartone, 2009 Ohio 153, 2009 Ohio App. LEXIS 128 (2d Dist. January 16, 2009).*

Officers who walked up to a parked van had reasonable suspicion the occupants were involved in dogfighting by the condition of the dogs. A gun clip was in plain view through the open door of the vehicle. The stop was not coercive because the stop was not with lights and they were free to go. State v. Lewis, 2009 Ohio 158, 900 N.E.2d 1084 (2d Dist. 2009).*

Defendant's arrest was irrelevant to the officer's request to search, which came from a CI's tip. So, the exclusionary rule would not be applied. United States v. Meece, 2009 U.S. Dist. LEXIS 3024 (W.D. Wis. January 13, 2009).*

Permalink 02:58:07 pm, by fourth, 384 words, 610 views   English (US)
Categories: General

MA: Affidavit for SW for child porn on defendant's computer failed to show probable cause; presence of adult porn has no bearing on presence of child porn

Affidavit for search warrant for child porn on defendant's computer failed to show probable cause. Also, presence of adult porn on the computer says nothing about the presence of child porn, and the court refuses to make this inference at the request of the state. Commonwealth v. Kaupp, 453 Mass. 102, 899 N.E.2d 809 (January 16, 2009):

After reviewing Officer Maglio's affidavit, we conclude that the affidavit, read as a whole and in a nontechnical manner, does not establish probable cause to believe that child pornography was located among the defendant's private files. The portions of the affidavit suggesting that the defendant's private files contained child pornography consisted of (1) the fact that both Joester and Sinister had a copy of the recently released movie Spiderman, suggesting that the movie had passed from one computer to another; (2) the fact that child pornography had been observed in Joester's open share; and (3) Officer Maglio's statement that the defendant "could not guarantee that there were not any child pornographic images stored in electronic format within his computer." None of these facts, even when considered together, provided a "substantial basis" to believe that the defendant's private files contained child pornography.

With respect to the presence of the Spiderman movie on both computers, the inference urged by the Commonwealth is simply too attenuated. The presence of Spiderman on both computers bears on probable cause only if it may reasonably be inferred that sharing an electronic copy of a commercial movie suggests an interest in sharing child pornography. Such an inference is not reasonable. The fact that the defendant could access child pornography does not advance the Commonwealth's contention that the defendant copied child pornography from Joester onto his computer. ...

The Commonwealth urges us to draw an adverse inference from the defendant's admission that he had a personal collection of pornography on his computer. We decline to do so. The affidavit provides no basis to conclude that an interest in adult pornography (which, if not obscene, is constitutionally protected, see Miller v. California, 413 U.S. 15, 24-25, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]; Commonwealth v. Donahue, 358 Mass. 803, 263 N.E.2d 589 [1970]) is a basis to infer an interest in child pornography. See United States v. Falso, supra at 122 (rejecting inference between sexual abuse of minor and possession of child pornography where association was neither stated nor supported in affidavit).


Permalink 06:54:16 am, by fourth, 301 words, 331 views   English (US)
Categories: General

LA5: Chambering a round while driving without hands is RS of something

Defendant gave a false name during his unlawful arrest, but the seizure of shotgun shells and a crack pipe from his person was valid by independent source. Jackson v. State, 1 So. 3d 273 (Fla. App. 1st DCA 2009).*

Defendant's "observing our presence in a nervous fashion," watching officers conducting a traffic stop, was not cause for an investigative detention. He also fled when they looked back at him. State v. Alvarez, 2009 La. App. LEXIS 57 (5th Cir. January 13, 2009).*

Chambering a round into a gun while driving with no hands on the wheel is reasonable suspicion for a stop. [One has to agree that this is mildly suspicious activity.] State v. Anderson, 2009 La. App. LEXIS 64 (5th Cir. January 13, 2009):

In the present case, Detective Peterson, a law enforcement officer with approximately 10 years experience, observed the defendant chambering a round into a firearm while driving with no hands on the wheel. Detective Peterson testified that, although he did not witness the defendant committing a specific crime, he stopped the defendant to investigate because "[he] did not know if a crime had been committed or was about to be committed."

We cannot say that the trial court erred in finding that Detective Peterson had sufficient reasonable suspicion that a crime was being committed, had been committed, or was about to be committed to justify an investigatory stop. Detective Peterson did not have to observe what he knew to be criminal behavior before investigating but rather behavior he reasonably suspected may become criminal activity.

Extracting defendant's blood after an accident complied with Schmerber and state law. While some factors under state law were not met, the state supreme court has cautioned that exclusion is not required if the extraction is otherwise reasonable. State v. Bowman, 327 S.W.3d 69 (Tenn. Crim. App. 2009), 130 S. Ct. 559, 175 L. Ed. 2d 388 (U.S. Nov. 9, 2009).*


Permalink 07:23:06 pm, by fourth, 1344 words, 950 views   English (US)
Categories: General

SCOTUS: Pearson decided today: Fourth Amendment qualified immunity

The Supreme Court held today in Pearson v. Callaghan, 07-751, 2008 U.S. Lexis 591 (U.S. January 21, 2009), that the Saucier v. Katz two step analysis was not required in every case. The district court was free to determine the determinative second question first. Here, the question of "consent-once-removed" was still developing and unresolved in the circuit, and holding the officers liable for it when the issue was not clearly established was erroneous. The decision, by Alito, was unanimous. From the Court's syllabus:

After the Utah Court of Appeals vacated respondent's conviction for possession and distribution of drugs, which he sold to an undercover informant he had voluntarily admitted into his house, he brought this 42 U.S.C. § 1983 damages action in federal court, alleging that petitioners, the officers who supervised and conducted the warrantless search of the premises that led to his arrest after the sale, had violated the Fourth Amendment. The District Court granted summary judgment in favor of the officers. Noting that other courts had adopted the "consent-once-removed" doctrine -- which permits a warrantless police entry into a home when consent to enter has already been granted to an undercover officer who has observed contraband in plain view -- the court concluded that the officers were entitled to qualified immunity because they could reasonably have believed that the doctrine authorized their conduct. Following the procedure mandated in Saucier v. Katz, 533 U.S. 194, the Tenth Circuit held that petitioners were not entitled to qualified immunity. The court disapproved broadening the consent-once-removed doctrine to situations in which the person granted initial consent was not an undercover officer, but merely an informant. It further held that the Fourth Amendment right to be free in one's home from unreasonable searches and arrests was clearly established at the time of respondent's arrest, and determined that, under this Court's clearly established precedents, warrantless entries into a home are per se unreasonable unless they satisfy one of the two established exceptions for consent and exigent circumstances. The court concluded that petitioners could not reasonably have believed that their conduct was lawful because they knew that (1) they had no warrant; (2) respondent had not consented to their entry; and (3) his consent to the entry of an informant could not reasonably be interpreted to extend to them. In granting certiorari, this Court directed the parties to address whether Saucier should be overruled in light of widespread criticism directed at it.


1. The Saucier procedure should not be regarded as an inflexible requirement. Pp. 5-19.

(a) Saucier mandated, see 533 U.S., at 194, a two-step sequence for resolving government officials' qualified immunity claims: A court must decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was "clearly established" at the time of the defendant's alleged misconduct, id., at 201. Qualified immunity applies unless the official's conduct violated such a right. Anderson v. Creighton, 483 U.S. 635, 640. Pp. 5-7.

(b) Stare decisis does not prevent this Court from determining whether the Saucier procedure should be modified or abandoned. Revisiting precedent is particularly appropriate where, as here, a departure would not upset settled expectations, see, e.g., United States v. Gaudin, 515 U.S. 506, 521; the precedent consists of a rule that is judge-made and adopted to improve court operations, not a statute promulgated by Congress, see, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20; and the precedent has "been questioned by Members of th[is] Court in later decisions, and [has] defied consistent application by the lower courts," Payne v. Tennessee, 501 U.S. 808, 829-830. Respondent's argument that Saucier should not be reconsidered unless the Court concludes that it was "badly reasoned" or that its rule has proved "unworkable," see Payne, supra, at 827, is rejected. Those standards are out of place in the present context, where a considerable body of new experience supports a determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained. Pp. 7-10.

(c) Reconsideration of the Saucier procedure demonstrates that, while the sequence set forth therein is often appropriate, it should no longer be regarded as mandatory in all cases. Pp. 10-19.

(i) The Court continues to recognize that the Saucier protocol is often beneficial. In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. And Saucier was correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable for questions that do not frequently arise in cases in which a qualified immunity defense is unavailable. See 533 U.S., at 194. Pp. 10-11.

(ii) Nevertheless, experience in this Court and the lower federal courts has pointed out the rigid Saucier procedure's shortcomings. For example, it may result in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the case's outcome, and waste the parties' resources by forcing them to assume the costs of litigating constitutional questions and endure delays attributable to resolving those questions when the suit otherwise could be disposed of more readily. Moreover, although the procedure's first prong is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development, as where, e.g., a court of appeals decision is issued in an opinion marked as not precedential. Further, when qualified immunity is asserted at the pleading stage, the answer to whether there was a violation may depend on a kaleidoscope of facts not yet fully developed. And the first step may create a risk of bad decisionmaking, as where the briefing of constitutional questions is woefully inadequate. Application of the Saucier rule also may make it hard for affected parties to obtain appellate review of constitutional decisions having a serious prospective effect on their operations. For example, where a court holds that a defendant has committed a constitutional violation, but then holds that the violation was not clearly established, the defendant, as the winning party, may have his right to appeal the adverse constitutional holding challenged. Because rigid adherence to Saucier departs from the general rule of constitutional avoidance, cf., e.g., Scott v. Harris, 550 U.S. 372, 388, the Court may appropriately decline to mandate the order of decision that the lower courts must follow, see, e.g., Strickland v. Washington, 466 U.S. 668, 697. This flexibility properly reflects the Court's respect for the lower federal courts. Because the two-step Saucier procedure is often, but not always, advantageous, those judges are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each case. Pp. 11-17.

(iii) Misgivings concerning today's decision are unwarranted. It does not prevent the lower courts from following Saucier; it simply recognizes that they should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, it will not retard the development of constitutional law, result in a proliferation of damages claims against local governments, or spawn new litigation over the standards for deciding whether to reach the particular case's merits. Pp. 17-19.

2. Petitioners are entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional. When the entry occurred, the consent-once-removed doctrine had been accepted by two State Supreme Courts and three Federal Courts of Appeals, and not one of the latter had issued a contrary decision. Petitioners were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on consent-once-removed entries. See Wilson v. Layne, 526 U.S. 603, 618, 119 S. Ct. 1692, 143 L. Ed. 2d 818. Pp. 19-20.

ScotusWiki here
. The question presented, per ScotusWiki:

Whether, for qualified immunity purposes, police officers may enter a home without a warrant on the theory that the owner consented to the entry by previously permitting an undercover informant into the home. (Note: in addition to the questions presented, the Court directed the parties to brief and argue the following question: “Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”)


Permalink 12:45:22 am, by fourth, 5 words, 393 views   English (US)
Categories: General

In trial today and tomorrow and not watching history, I'm afraid


Permalink 07:46:10 am, by fourth, 540 words, 781 views   English (US)
Categories: General

CA4: Cellphone's storage capacity not relevant to a search incident

Whether a cellphone has a "volatile" phone number storage capacity for search incident is an unworkable standard because there is no way an officer would know. United States v. Murphy, 552 F.3d 405 (4th Cir. January 15, 2009):

Murphy argues that whether a cell phone may be searched without a warrant can be determined only upon the officers ascertaining the cell phone's storage capacity. In so arguing, he concedes that a device with a small storage capacity may be searched without a warrant due to the volatile nature of the information stored, but that a search of a cell phone with a larger storage capacity would implicate a heightened expectation of privacy and thus would require a warrant to be issued before a search could be conducted.

Murphy's argument is problematic for several reasons. First, Murphy has not provided the Court with any standard by which to determine what would constitute a "large" storage capacity as opposed to a "small" storage capacity, as he does not quantify these terms in any meaningful way. Second, Murphy has introduced no evidence that his cell phone had the requisite "large" storage capacity which he contends is subject to a heightened expectation of privacy. Third, even assuming that his cell phone does have a "large" storage capacity, his argument still fails because it is premised on the unwarranted assumption that information stored on a cell phone with a "large" storage capacity would be any less volatile than the information stored on a cell phone with a "small" storage capacity.

Finally, Murphy's argument must be rejected because to require police officers to ascertain the storage capacity of a cell phone before conducting a search would simply be an unworkable and unreasonable rule. It is unlikely that police officers would have any way of knowing whether the text messages and other information stored on a cell phone will be preserved or be automatically deleted simply by looking at the cell phone. See Young, 278 Fed. Appx. at 245. Rather, it is very likely that in the time it takes for officers to ascertain a cell phone's particular storage capacity, the information stored therein could be permanently lost. For these reasons, we reject Murphy's argument that the government must ascertain a cell phone's storage capacity in order to justify a warrantless search of that phone incident to arrest.

Defendant did not have a reasonable expectation of privacy from entry onto his enclosed porch by a law enforcement officer who was there to investigate a dog complaint and smelled marijuana. United States v. Wilson, 2009 U.S. Dist. LEXIS 2980 (N.D. Iowa January 14, 2009).*

There was no reasonable expectation of privacy in a common hallway of a fourplex where defendant was arrested. The defendant showed that he had a TV set sitting there, but that alone proved nothing. United States v. Martin, 2009 U.S. Dist. LEXIS 2994 (D. Kan. January 12, 2009).*

The officer stopped defendant, a Canadian citizen, for a traffic offense, and he developed reasonable suspicion from defendant's unusual travel plans of driving to California and back from New York with a one day stay. After handing the papers back, the defendant was asked further questions and then consented to a search, which produced 119 kg of cocaine. United States v. LeBon, 307 Fed. Appx. 2 (7th Cir. 2009)* (unpublished).

Permalink 07:20:47 am, by fourth, 192 words, 495 views   English (US)
Categories: General

CA10: Drug dog success rate of 80% is PC

Drug dog success rate of 80% is probable cause. United States v. Bertram, 307 Fed. Appx. 214 (10th Cir. 2009)* (unpublished).

Officer had probable cause for stop based on speeding in a work zone, and reasonable suspicion for a further detention based on information from the DEA. United States v. Beltran-Aguilar, 2009 U.S. Dist. LEXIS 2566 (D. Kan. January 14, 2009):

Even though the activities of defendants and the Honda's relationship to drug activity may have been ambiguous and susceptible of innocent explanation, officers may detain individuals to resolve the ambiguity. Illinois v. Wardlow, 528 U.S. 119, 126, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (Terry accepts risk that officers may stop innocent people); see United States v. Arvizu, 534 U.S. 266, 277, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002) (reasonable suspicion need not rule out possibility of innocent conduct); ....

Twenty minutes for a traffic stop was not unreasonable. "The traffic stop was not so dilatory that it became unlawful." Defendant also invited the officer to search. United States v. Perez-Vasquez, 2009 U.S. App. LEXIS 716 (3d Cir. January 12, 2009)* (unpublished).

Defendant's bare assertion district court erred in crediting testimony about consent was inadequate. United States v. Mitchell, 2009 U.S. App. LEXIS 685, 2009 FED App. 0024N (6th Cir. January 13, 2009)* (unpublished).


Permalink 11:07:18 am, by fourth, 273 words, 582 views   English (US)
Categories: General

TX14: "your fall partner has given you up" led to confession and attenuated the taint

Multiple Miranda warnings are not required to purge the taint of an illegal arrest. Here, the defendant took a bathroom break and was told when he came out that "your fall partner has given you up." Then he confessed. That was the cause of his confession. Monge v. State, 276 S.W.3d 180 (Tex. App.–Houston (14th Dist.) January 13, 2009):

[T]he first factor of Brown v. Illinois requires multiple Miranda warnings. The fact that repeated warnings may have been sufficient in other cases does not necessarily mean, in the context of this attenuation analysis, that multiple warnings are mandatory. See Bell, 724 S.W.2d at 788 (asking simply whether Miranda warnings were given); see also Rosalez v. State, 875 S.W.2d 705, 722 (Tex. App.--Dallas 1993, pet. ref'd) (resolving first factor in State's favor because defendant received Miranda warnings immediately after arrest, and indicated he understood his rights).

A claim of sexual battery on the job is not a Fourth Amendment claim. Rasi v. Dep't of Correction, 2009 U.S. Dist. LEXIS 2540 (W.D. Va. January 13, 2009):

Rasi's allegation that Allen's alleged sexual battery constituted an unlawful seizure and search in violation of the Fourth Amendment is incorrect. Since "the harm inflicted did not occur in the course of an attempted arrest or apprehension of one suspected of criminal conduct ... the claim [is] not one of Fourth Amendment violation." Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997) (internal citations omitted).

Comment: This, to me, is an overgeneralization. It is true as far as it goes in this case, but it cannot be conclusively stated that a governmental actor is not conducting a seizure if it is not a criminal investigation.

Permalink 10:51:16 am, by fourth, 246 words, 369 views   English (US)
Categories: General

WA: Officer's observations of defendants and citizen informants before stop was corroboration

Officers had reasonable suspicion for a stop based on a statement from citizen informant who defendants pulled up next to and offered crack and showed it. The citizen told the officers who observed the encounter. State v. Lee, 147 Wn. App. 912, 2008 Wash. App. LEXIS 2962 (December 29, 2008).

Taillight stop led officer to reasonably suspect that the occupants had been involved in a recent robbery. State v. Cooper, 2 So. 3d 1172 (La. App. 2d Cir. 2009):

Officer Person noted that the suspects fit the general description of the perpetrators and that the suspects were in the vicinity of the vehicle which had been abandoned by the offenders. He also saw that the number and size of the suspects was incongruous with the small car that they entered, that one of the suspects looked startled upon seeing a police officer and that all of the suspects acted nervous after the stop. Finally, Officer Person observed that the driver gave rambling answers in response to his questions and that none of the suspects could supply consistent answers as to their previous whereabouts. Officer Person's belief that the suspects may have been involved with the armed robbery earlier that day was, therefore, a reasonable inference which was based on particularized facts.

On the state's petition for discretionary review, the Court of Criminal Appeals independently determines that defendant's stop was justified by probable cause. Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009),* rev’g Amador v. State, 242 S.W.3d 95 (Tex. App. — Beaumont 2007), posted here.

Permalink 10:19:05 am, by fourth, 389 words, 395 views   English (US)
Categories: General

ME: Presence of narcotics officer expanded administrative search

An administrative warrant that has a valid basis under Burger is proper even if a possible crime is expected to be found. Here, a pub with a liquor license was subjected to an unannounced entry. Narcs came with the fire inspector and when to the third floor residence, and the narc's presence there was unreasonable and unconstitutionally violated the administrative warrant. Marijuana was seen on the third floor, outside of the area subject to inspection. State v. Johnson, 2009 ME 6, 962 A.2d 973 (2009) (pending 19 months after argument):

[*P45] This lack of record support for any authority to extend the inspection beyond the second floor is fatal to both of the theories advanced by the State on appeal that the search of the third floor stairwell was constitutionally justified. First, the State argues that, despite their lack of independent authority, the Fire Marshals' presence was reasonable under the United States Supreme Court's decision in Wilson v. Layne, 526 U.S. 603, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). In Wilson, the Court held that the presence of news media during the execution of a valid search warrant in a home violated the residents' Fourth Amendment rights. Id. at 614. The Court noted, however, that "the presence of third parties during the execution of a warrant may in some circumstances be constitutionally permissible," id. at 613, such as when the third parties "aided in the execution of the warrant," id. at 611.

[*P46] Had the liquor inspector been authorized to be on the third floor landing, and had he been accompanied by the Fire Marshal's representatives for the purposes of assisting in that authorized search, then the presence of the Fire Marshal's representatives may have been permissible under Wilson. However, as discussed above, there is nothing in the record to suggest that entry beyond the second floor was authorized, and the parties agree that the liquor inspector did not in fact accompany the Fire Marshal's representatives up the third floor stairwell. Furthermore, the motion court found, and the record amply demonstrates, that the sole purpose of the Fire Marshal's representatives in ascending the stairwell from the kitchen was to conduct an inspection for possible fire safety violations, and their presence and eventual entry into the area where marijuana leaves were found cannot be characterized as that of mere third parties assisting in the administrative inspection conducted by the liquor inspector.

Permalink 09:55:35 am, by fourth, 202 words, 356 views   English (US)
Categories: General

WY: Warrant check is not a seizure

A comment by the prosecutor about defendant's refusing to give a DNA sample would violate the Fourth Amendment. Smith v. State, 2009 WY 2, 199 P.3d 1052 n.1 (2009) (recognizing rule, but finding it waived):

The State candidly admits that eliciting testimony and commenting about a suspect's refusal to give a sample for DNA testing may violate a defendant's Fourth Amendment right to be free from unreasonable searches and seizures. See, e.g., United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999) (ruling that asking the jury to draw adverse inferences from a refusal to consent to a search may be impermissible under the Fourth Amendment); Deno v. Commonwealth of Kentucky, 177 S.W.3d 753, 762 (Ky. 2005) (stating that a defendant's pre-arrest refusal to provide a sample for DNA testing could not be used as evidence of his guilt under the Fourth Amendment).

A warrant check during a limited stop is not a seizure. Wilson v. State, 2009 WY 1, 199 P.3d 517 (2009).

Police entry into defendant's apartment was unjustified once the officer determined that defendant was not involved in a robbery. Also, there were no sounds from inside that would justify an entry to determine who they were if they were the robbers. State v. Culpepper, 295 Ga. App. 525, 672 S.E.2d 494 (2009).*


Permalink 03:48:32 pm, by fourth, 1082 words, 887 views   English (US)
Categories: General

FISCR: Wiretapping without warrant for calls outside US satisfies Fourth Amendment

There is a foreign intelligence surveillance exception to the Fourth Amendment for surveillance conducted on calls outside the United States involving suspected terrorists. In re Directives [Redacted] Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 2008 U.S. App. LEXIS 27417, 2008 WL 5501436 (Foreign Int. Surv. Ct. Rev. August 22, 2008), ordered released January 12, 2009:

2. The Foreign Intelligence Exception. The recurrent theme permeating the petitioner's arguments is the notion that there is no foreign intelligence exception to the Fourth Amendment's Warrant Clause. The FISC rejected this notion, positing that our decision in In re Sealed Case confirmed the existence of a foreign intelligence exception to the warrant requirement.

While the Sealed Case court avoided an express holding that a foreign intelligence exception exists by assuming arguendo that whether or not the warrant requirements were met, the statute could survive on reasonableness grounds, see 310 F.3d at 741-42, we believe that the FISC's reading of that decision is plausible.

The petitioner argues correctly that the Supreme Court has not explicitly recognized such an exception; indeed, the Court reserved that question in United States v. United States District Court (Keith), 407 U.S. 297, 308-09, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). But the Court has recognized a comparable exception, outside the foreign intelligence context, in so-called “special needs” cases. In those cases, the Court excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (upholding drug testing of high-school athletes and explaining that the exception to the warrant requirement applied “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement[s] impracticable” (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987))); Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 620, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (upholding regulations instituting drug and alcohol testing of railroad workers for safety reasons); cf. Terry v. Ohio, 392 U.S. 1, 23-24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (upholding pat-frisk for weapons to protect officer safety during investigatory stop).

The question, then, is whether the reasoning of the special needs cases applies by analogy to justify a foreign intelligence exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a foreign power or an agent of a foreign power reasonably believed to be located outside the United States. Applying principles derived from the special needs cases, we conclude that this type of foreign intelligence surveillance possesses characteristics that qualify it for such an exception.

For one thing, the purpose behind the surveillances ordered pursuant to the directives goes well beyond any garden-variety law enforcement objective. It involves the acquisition from overseas foreign agents of foreign intelligence to help protect national security. Moreover, this is the sort of situation in which the government's interest is particularly intense.

The petitioner has a fallback position. Even if there is a narrow foreign intelligence exception, it asseverates, a definition of that exception should require the foreign intelligence purpose to be the primary purpose of the surveillance. For that proposition, it cites the Fourth Circuit's decision in United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir.1980). That dog will not hunt.

This court previously has upheld as reasonable under the Fourth Amendment the Patriot Act's substitution of “a significant purpose” for the talismanic phrase “primary purpose.” In re Sealed Case, 310 F.3d at 742-45. As we explained there, the Fourth Circuit's “primary purpose” language-from which the pre-Patriot Act interpretation of “purpose” derived-drew an “unstable, unrealistic, and confusing” line between foreign intelligence purposes and criminal investigation purposes. Id. at 743. A surveillance with a foreign intelligence purpose often will have some ancillary criminal-law purpose. See id. The prevention or apprehension of terrorism suspects, for instance, is inextricably intertwined with the national security concerns that are at the core of foreign intelligence collection. See id. In our view the more appropriate consideration is the programmatic purpose of the surveillances and whether-as in the special needs cases-that programmatic purpose involves some legitimate objective beyond ordinary crime control. Id. at 745-46.

Under this analysis, the surveillances authorized by the directives easily pass muster. Their stated purpose centers on garnering foreign intelligence. There is no indication that the collections of information are primarily related to ordinary criminal-law enforcement purposes. Without something more than a purely speculative set of imaginings, we cannot infer that the purpose of the directives (and, thus, of the surveillances) is other than their stated purpose. See, e.g., United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”).

. . .

3. Reasonableness. This holding does not grant the government carte blanche: even though the foreign intelligence exception applies in a given case, governmental action intruding on individual privacy interests must comport with the Fourth Amendment's reasonableness requirement. See United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Thus, the question here reduces to whether the PAA, as applied through the directives, constitutes a sufficiently reasonable exercise of governmental power to satisfy the Fourth Amendment.

. . .


Our government is tasked with protecting an interest of utmost significance to the nation-the safety and security of its people. But the Constitution is the cornerstone of our freedoms, and government cannot unilaterally sacrifice constitutional rights on the altar of national security. Thus, in carrying out its national security mission, the government must simultaneously fulfill its constitutional responsibility to provide reasonable protections for the privacy of United States persons. The judiciary's duty is to hold that delicate balance steady and true.

We believe that our decision to uphold the PAA as applied in this case comports with that solemn obligation. In that regard, we caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts. This is such a case.

We need go no further. The decision granting the government's motion to compel is affirmed; the petition for review is denied and dismissed; and the motion for a stay is denied as moot.

News stories: Washington Post, NY Times, LA times.

Permalink 03:34:33 pm, by fourth, 191 words, 425 views   English (US)
Categories: General

N.D.N.Y.: Stop was based on speeding, and motive was irrelevant; defendant was expected to be coming from Canada with marijuana

Officers had word that defendant would be transporting marijuana from Quebec into Northern New York, and they saw him and stopped him for speeding. There was an objective basis for the stop, and it was valid. United States v. Shefler, 2009 U.S. Dist. LEXIS 2108 (N.D. N.Y. January 13, 2009).*

Officer had reasonable suspicion for stop of defendant's car based on collective information, and the plain view after that was justified. United States v. Burk, 2009 U.S. Dist. LEXIS 2321 (E.D. Pa. January 13, 2009).*

Testimony of officers was credited over defendant's affidavit and shows consent. United States v. Chisholm, 2008 U.S. Dist. LEXIS 106474 (E.D. N.Y. October 29, 2008).*

Officer responding to a shooting call saw a vehicle. Questioning and a patdown produced nothing. But, the two men were nervous and evasive, and it was determined to search the car anyway for a weapon, which was found. The motion to suppress was properly denied based on the likely presence of a weapon from the shooting. People v. Johnson, 387 Ill. App. 3d 768, 327 Ill. Dec. 127, 901 N.E.2d 455 (2009).*

Exclusionary rule does not apply in bar disciplinary proceedings. In re Clark, 08-DB-034 (La. Atty. Disc. Bd. January 12, 2009).

Permalink 03:17:18 pm, by fourth, 123 words, 497 views   English (US)
Categories: General

CA9: Admin subpoena procuring defendant's IP address as recipient of child porn was PC

An administrative subpoena was used to get defendant's IP address as the recipient of child pornography. This gave probable cause. United States v. Sloan, 307 Fed. Appx. 88 (9th Cir. 2009)* (unpublished).

Officer had reasonable suspicion to detain the defendant for 20-25 minutes to get a drug dog to the scene. The dog's alert gave PC. United States v. Johnson, 307 Fed. Appx. 372 (11th Cir. 2009)* (unpublished).

Officer watched two men separately enter a convenience store while talking on a cellphone. They stayed a brief time, and came out without buying anything. One defendant came back to the parking lot two minutes later. In the officer's experience, this indicated a drug deal was going down, and this was reasonable suspicion. United States v. Morris, 305 Fed. Appx. 992 (4th Cir. 2009)* (unpublished).


Permalink 08:24:36 pm, by fourth, 190 words, 771 views   English (US)
Categories: General

Cert. granted in a school strip search case

The Supreme Court has granted certiorari on Friday in the Ninth Circuit's Redding v. Safford Unified School District case to decide the legality of an anonymous tip from a student used to strip search a student for ibuprofen. The SCOTUSBlog summary:

In reopening the issue of public school students’ rights of privacy, the Court agreed to hear an appeal by an Arizona school district arguing that the Ninth Circuit Court has created a new rule requiring public school officials to have more evidence of illegal possession of drugs or weapons at school than an unproved tip from a student. The case grows out of the strip-search of a 13-year-old girl at school after one of her classmates said that prescription drugs found on that other student belonged to the girl who was searched. The case is Safford Unified School District v. Redding (08-479).

The opinion below: Redding v. Safford Unified School District, 531 F.3d 1071 (9th Cir. 2008) (en banc, 6-5), posted here.

LATimes article is here.

SCOTUSBlog and SCOTUSWiki have not posted serious discussions of this case yet, but they will shortly. When they do, their postings will be posted on the sidebar.

Permalink 06:22:07 pm, by fourth, 140 words, 329 views   English (US)
Categories: General

OH2: Shopping bag temporarily left in a motel room that was not defendant's was not an abandonment

Defendant did not abandon a shopping bag he left in a motel room that was not his. An officer asked about another person, and he went into the motel room to get her, leaving the bag behind. The officer illegally entered the room and searched the bag. State v. Jones, 2009 Ohio 61, 2009 Ohio App. LEXIS 46 (2d Dist. January 9, 2009).*

Plain feel did not justify seizure of lump from defendant's pocket that officer could not identify as contraband. State v. Lawson, 2009 Ohio 62, 180 Ohio App. 3d 516, 906 N.E.2d 443 (2d Dist. 2009).*

Police had information that defendant was involved with the property targeted by a search warrant to detain him when he was seen nearby. State v. Jacobs, 2009 Ohio 68, 2009 Ohio App. LEXIS 78 (4th Dist. January 6, 2009).*

Defendant's clothing could be searched when he was in custody under Edwards. State v. Muquit, 381 S.C. 114, 671 S.E.2d 643 (2009).*

Permalink 05:43:24 pm, by fourth, 171 words, 307 views   English (US)
Categories: General

OH2 reaffirms a person with an outstanding warrant has no REP from a SI even where stop illegal

There is no reasonable expectation of privacy in one's person when there is an outstanding warrant for him. While defendant's stop was illegal, a search incident of his person on his arrest for the outstanding warrant found when his name was run was valid. State v. Harding, 2009 Ohio 59, 180 Ohio App. 3d 497, 2009 Ohio App. LEXIS 50 (2d Dist. January 9, 2009):

[*P19] Most recently, however, we reaffirmed our holding in Click in State v. Smith, Montgomery App. No. 22434, 2008 Ohio 5523, wherein we found that the defendant had no reasonable expectation of privacy because he had an outstanding warrant for his arrest. It did not matter that the police became aware of the warrant following, and as a result of, an otherwise unlawful detention. In Smith, we specifically overruled our prior holding in Jamison.

The police were called when a father discovered defendant would be coming by house to sell drugs. When strange car showed up, officer talked to defendant. He was not in custody when he was being questioned. Commonwealth v. Teeter, 2008 PA Super 272, 961 A.2d 890 (2008).*

Permalink 01:35:54 pm, by fourth, 533 words, 758 views   English (US)
Categories: General

DNA testing of federal arrestees started Jan. 9th; DNA is taken on fingerprinting

In a little noticed move, the federal government started taking DNA samples from arrestees and immigration detainees without regard to conviction. See the Chicago Tribune. Few other papers mentioned it.

The proposed regulation is here posted April 18, 2008. The summary states:

SUMMARY: The Department of Justice is publishing this proposed rule to implement amendments made by section 1004 of the DNA Fingerprint Act of 2005 and section 155 of the Adam Walsh Child Protection and Safety Act of 2006 to section 3 of the DNA Analysis Backlog Elimination Act of 2000. This rule directs agencies of the United States that arrest or detain individuals, or that supervise individuals facing charges, to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States. Unless otherwise directed by the Attorney General, the collection of DNA samples may be limited to individuals from whom an agency collects fingerprints. The Attorney General also may approve other limitations or exceptions. Agencies collecting DNA samples are directed to furnish the samples to the Federal Bureau of Investigation, or to other agencies or entities as authorized by the Attorney General, for purposes of analysis and entry into the Combined DNA Index System.

DNA is to be taken at fingerprinting:

Accordingly, the Attorney General is directing all agencies of the United States that arrest or detain individuals or supervise individuals facing charges to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States, pursuant to 42 U.S.C. 14135a(a)(1)(A), if the agency takes fingerprints from such individuals.

The Department recognizes, however, that there may be some circumstances in which agencies collect fingerprints but in which the collection of DNA samples would not be warranted or feasible. For example, in relation to non-arrestees, DHS will not be required to collect DNA samples from aliens who are fingerprinted in processing for lawful admission to the United States, or from aliens from whom DNA-sample collection is otherwise not feasible because of operational exigencies or resource limitations. If any agency believes that such circumstances exist within its sphere of operations, the agency should bring these circumstances to the attention of the Department, and exceptions to the DNA-sample collection requirement may be allowed with the approval of the Attorney General.

Maybe one reason it has not been in the news is that some articles only focused on the testing of arrested suspected illegal immigrants, as in the LATimes and Washington Post. The NY Times never mentioned it.

This April 2008 article mentioned the DOJ plan which was authorized by statute. So does the regulation's notice.

DOJ did not have a press release on it.

I personally doubt the constitutionality of something as intrusive as a DNA sampling without individualized probable cause for it. An arrestee has been convicted of nothing, so all the case law on the special needs exception has utterly no application. And what about a pretextual arrest for something else just to get the DNA of somebody the police cannot show probable cause as to a specific crime? The states will get on the bandwagon, too.


Permalink 11:10:08 am, by fourth, 412 words, 306 views   English (US)
Categories: General

E.D.Tenn.: Even if officers engaged in deception, the consent would have been valid

Driveby at a house called in to the police justified officer's entry to check on people inside. That resulted in a plain view, a denial of consent, and then obtaining a search warrant. United States v. Wilson, 2009 U.S. Dist. LEXIS 1897 (D. Kan. January 12, 2009).*

Informant's statement that he had seen drugs inside the defendant's house did not have to be corroborated to show probable cause. [Indeed, it would be hard to corroborate, wouldn't it?] United States v. Johnson, 2009 U.S. Dist. LEXIS 1961 (M.D. Ala. January 12, 2009).*

Defendant was told he was free to leave, but a drug dog was on the scene and was used on the car, and that was sufficient because there was reasonable suspicion at that point. This is not the same as holding a car while a drug dog is brought in (distinguishing Eighth Circuit authority the defense relied on). United States v. Norwood, 2009 U.S. Dist. LEXIS 1835 (D. Neb. January 12, 2009).*

Officers responding to a call of men with guns in two cars had reasonable suspicion to stop them. Finding no guns in one did not mean there were none in the other. United States v. Howard, 2009 U.S. Dist. LEXIS 2014 (E.D. Ky. January 12, 2009).*

Defendant's wife validly consented to an entry to search for explosives. The defense argument that she was misled, even if adopted, would not carry any weight because the officers still got a valid consent. United States v. Jones, 2009 U.S. Dist. LEXIS 1798 (E.D. Tenn. January 8, 2009):

Though the Court agrees with Magistrate Judge Shirley's determination that the officers advised Mrs. Jones that her husband was a suspect before she signed the consent form, even if it determined that she was not told that her husband was a suspect until after she gave her consent, the Court would not find Mrs. Jones's consent involuntary. The officers suspected that there may be explosives and other materials for making pipe bombs in the house and therefore were not engaging in deceptive tactics or trickery when they told Mrs. Jones that they wanted to check the house to make sure it was safe. There is no requirement that a person giving consent to search a residence be told that a cohabitant is a suspect of a crime, only that they give consent voluntarily. Because Mrs. Jones understood her constitutional rights and understood that she did not have to give her consent, the Court finds that Mrs. Jones's consent was voluntarily given and, accordingly, this objection is OVERRULED.


Permalink 11:08:41 am, by fourth, 634 words, 1966 views   English (US)
Categories: General

SCOTUS: Herring decided today; watch out: if negligent, no exclusion?

Yes Virginia, there is a Barney Fife exception to the exclusionary rule.

In Herring v. United States, 07-513, the Supreme Court decided today, 5-4, holding that a constitutional violation that is only negligent is not subject to the exclusionary rule. The implications of this go beyond the recordkeeping issue presented. See The Surpassing Significance of Herring on SCOTUSBlog.

From the Court's syllabus:

Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County’s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database. Herring was indicted on federal gun and drug possession charges and moved to suppress the evidence on the ground that his initial arrest had been illegal. Assuming that there was a Fourth Amendment violation, the District Court concluded that the exclusionary rule did not apply and denied the motion to suppress. The Eleventh Circuit affirmed, finding that the arresting officers were innocent of any wrongdoing, and that Dale County’s failure to update the records was merely negligent. The court therefore concluded that the benefit of suppression would be marginal or nonexistent and that the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897.

Held: When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply. Pp. 4–13.

(a) The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213, 223. The rule is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free. Leon, 468 U. S., at 908–909. For example, it does not apply if police acted “in objectively reasonable reliance” on an invalid warrant. Id., at 922. In applying Leon’s good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding, Arizona v. Evans, 514 U. S. 1, 14–15, the Court left unresolved the issue confronted here: whether evidence should be suppressed if the police committed the error, id., at 16, n. 5. Pp. 4–7.

(b) The extent to which the exclusionary rule is justified by its deterrent effect varies with the degree of law enforcement culpability. See, e.g., Leon, supra, at 911. Indeed, the abuses that gave rise to the rule featured intentional conduct that was patently unconstitutional. See, e.g., Weeks v. United States, 232 U. S 383. An error arising from nonrecurring and attenuated negligence is far removed from the core concerns that led to the rule’s adoption. Pp. 7–9.

(c) To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The pertinent analysis is objective, not an inquiry into the arresting officers’ subjective awareness. See, e.g., Leon, supra, at 922, n. 23. Pp. 9–11.

(d) The conduct here was not so objectively culpable as to require exclusion. The marginal benefits that might follow from suppressing evidence obtained in these circumstances cannot justify the substantial costs of exclusion. Leon, supra, at 922. Pp. 11–13.

Comment: Whether the Court intends it or not, in effect, it is promising in the future to reward sloppy police work. Ironically, that’s one of the kinds of conduct the exclusionary rule was created to correct. It’s the "Barney Fife" exception to the Fourth Amendment. This case is the subject of my NACDL President's Column from the Nov.-Dec. issue: The Barney Fife Exception to the Exclusionary Rule.

(By the way, SCOTUS cases prior to 2007 have been removed from the sidebar.)

Permalink 11:00:11 am, by fourth, 98 words, 317 views   English (US)
Categories: General

D.P.R.: Trying to sideswipe police car in a stolen car justified stop

Covenant not to sue barred later civil rights action. MK Ballistic Systems v. Simpson, 2009 U.S. Dist. LEXIS 1244 (N.D. Cal. January 6, 2009).*

Habeas petitioner’s strained theory about a Fourth Amendment violation by his counsel did not show that defense counsel was ineffective. Kerr v. Smith, 2009 U.S. Dist. LEXIS 1725 (N.D. Ohio January 12, 2009).*

Officer had reason to stop defendant in a stolen car. He was furtive in his hand movements and tried to sideswipe the police car. United States v. Fernandez-Torres, 2008 U.S. Dist. LEXIS 106338 (D. P.R. July 8, 2008)* (hard to believe this issue was seriously presented).


Permalink 02:39:09 pm, by fourth, 159 words, 469 views   English (US)
Categories: General

CA10: Being in a high crime area with furtive movements and gang colors was RS

Officers had reasonable suspicion that defendant probationer was staying in the place the police entered. They had probable cause to believe he had a gun and reasonable suspicion he was where he was staying. United States v. Graham, 553 F.3d 6 (1st Cir. 2009).*

Police had reasonable suspicion of defendant's car based on it being in a high crime area with furtive movements with the hands and wearing gang colors. United States v. Dejear, 2009 U.S. App. LEXIS 358 (10th Cir. January 9, 2009).*

Defendants were seen acting suspiciously on the parking lot of a VA Medical Center, and the VA police were called. Officers saw them move to another parking lot. One of the defendants was seen hiding something under his shirt. Defendants were stopped and questioned, and they lied about what they were doing there. They were handcuffed and put into separate police cars. One validly consented to a search of the car. United States v. Craig, 306 Fed. Appx. 256 (6th Cir. 2009) (unpublished).*


Permalink 07:15:26 am, by fourth, 293 words, 512 views   English (US)
Categories: General

CA10: Defense did not show that highway drug dog was roving checkpoint

Argument that a drug dog in a highway patrol car is the equivalent of a roving drug checkpoint was not preserved for appeal, but the argument would lose anyway. United States v. Bravo, 306 Fed. Appx. 436 (10th Cir. 2009) (unpublished):

Moreover, this case is easily distinguishable from Edmond and therefore the argument is without merit. Edmond involved a programmatic purpose to uncover evidence of ordinary criminal wrongdoing (drug trafficking), Edmond, 531 U.S. at 40-43, "without individualized suspicion," id. at 45-46. Here, in contrast, the programmatic purpose of drug interdiction which the agent testified to, Tr. 29-32, is carried out only when there is individualized suspicion that a traffic violation has occurred. Because the stop was objectively justified, we do not look beyond that justification to the officer's unit assignment. See United States v. Patterson, 472 F.3d 767, 775 (10th Cir. 2006) (finding a stop to be justified even though the officer's unit assignment was to detect drug couriers).

The seizure and search of defendant's home computer was with his wife's consent and within the scope of her consent. United States v. Thomas, 302 Fed. Appx. 558 (9th Cir. 2008)* (unpublished).

Officer who stopped defendant had independent probable cause from the DEA, so the stop was justified. United States v. Sellers, 2009 U.S. Dist. LEXIS 1137 (N.D. Ind. January 8, 2009).*

Police were called to a disturbance call, and defendant's wife and son were on the street saying that defendant kicked them out and threatened them with a gun. After he came out with a gun and knife and was tackled and arrested, his wife validly consented to an entry of the house to continue the investigation. State v. Adams, 2009 Ohio 53, 2009 Ohio App. LEXIS 38 (5th Dist. January 5, 2009).*

Note: The Ninth Circuit link has recently changed and it has been updated. Its website is more user friendly now.


Permalink 09:42:09 am, by fourth, 846 words, 2074 views   English (US)
Categories: General

S.D.W.Va.: Random drug testing of teachers violates Fourth Amendment

School board policy of drug testing school teachers could not be justified under the special needs exception, and teachers do not have a reduced expectation of privacy. American Federation of Teachers—West Virginia AFL-CIO v. Kanawha County Bd. of Educ., 592 F. Supp. 2d 883 (S.D. W.Va. January 8, 2009) (on court's website):

The Kanawha County School Board adopted a revised drug testing policy mandating the random testing of teachers and other categories of public school employees. The teachers' unions have joined forces in this lawsuit seeking to enjoin the implementation of that policy on constitutional and privacy grounds. The questions before the court are whether the random drug testing policy adopted by the Board as a state actor violates the Fourth Amendment to the United States Constitution, Article III, § 6 of the West Virginia Constitution, and the right to privacy as it is recognized in this state. The evidence does not demonstrate either that these employees have a reduced expectation of privacy by virtue of their employment in a public school or that there is a special governmental need to guard against a concrete risk of great harm. I therefore find that because the safety justification offered by the Board does not outweigh the privacy interests of the school employees, the Board may not abandon the Fourth Amendment's protection against suspicionless searches. Consequently, the plaintiffs are likely to succeed on the merits of their claims and I preliminarily enjoin the enforcement of the random drug testing policy.

. . .

To determine whether a special need exists that justifies a suspicionless search, a court must ask whether there is a safety concern that is substantial enough to override the individual's privacy interest and to suppress the Fourth Amendment's requirement of individualized suspicion. See Chandler, 520 U.S. at 318, 323; Von Raab, 489 U.S. at 668-671, 674; Skinner, 489 U.S. at 608-34. The requisite weight of the safety interest is apparent from an examination of the Supreme Court precedents on point: Skinner v. Railway Labor Executives' Association, National Treasury Employees Union v. Von Raab, Chandler v. Miller, Vernonia School District 47J v. Acton, and Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls.

. . .

Suspicionless drug testing in all of those cases was justified by varying types of special needs, but the requirement that there be a safety concern of sufficient magnitude to outweigh the particular privacy interests involved is a common thread that ties them together and which guides my determination in this case. The Supreme Court has found thus far sufficiently important special needs to outweigh an individual's privacy interests when faced with major safety concerns such as the great harm to people and property that could result from a railroad accident, the threat to national security posed by the failed interdiction of illegal drugs smuggled across our borders, and the risk to safety created by the potential use of deadly force by a drug-addled Customs employee equipped with a firearm. The Supreme Court has also found that a lesser safety concern can qualify as a special need, but only when the persons to be tested possess a greatly diminished privacy interest. See Earls, 536 U.S. at 830-32, 836-37; Vernonia, 515 U.S. at 654-56, 661-62. Viewed as a whole, these precedents plainly reveal that the special needs exception to a suspicion-based search was intended to be a very narrow one and to apply only when the government is faced with a safety concern of sufficiently great magnitude to outweigh the privacy interests of the group to be searched.

. . .

On the record before me, I FIND that the proposed drug testing collection process is not an overly intrusive drug testing procedure. See Chandler, 520 U.S. at 326 (Rehnquist, J., dissenting); Von Raab, 489 U.S. at 672 n.2. The vast majority of the collections will not be monitored; only approximately ten out of every 5000 or 6000 collection attempts will be monitored. The Medical Review Officer is charged with keeping any medical information disclosed to him or her private from all third parties, including the employer. Testing is only performed for the presence of amphetamines, methadone, phencyclidine, cocaine, opiates, marijuana (THC), barbiturates, and benzodiazepines.

Secondly, I must consider whether any of these employees have a reduced privacy interest. Public employees may have a reduced expectation of privacy by virtue of their employment if that employment carries with it safety concerns for which the employees are heavily regulated. See Skinner, 489 U.S. 626-27; ...

. . .

Finally, I FIND no evidence that the teachers or other school employees have a reduced privacy interest by virtue of their employment in the public school system that is comparable to the students in Vernonia and Earls. Teachers, administrative assistants, cabinetmakers, coaches, handymen, plumbers and the like are professional adults over whom the school as employer (and not as parent) does not maintain a comparable degree of control. See Schmidt, supra, 34 Colum. J. L. & Soc. Probs. at 267-68. The state simply cannot exercise a similar degree of control over adult employees as it does over students. See Earls, 536 U.S. at 831 ("Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults.").

Permalink 08:43:18 am, by fourth, 405 words, 349 views   English (US)
Categories: General

N.D.Ind.: The smaller the place, the more likely the whole place can be swept under Buie

"Immediately adjoining" area for a protective sweep under Buie permitted sweep of kitchen when defendant was arrested in the adjoining room and even though the officers had no individualized suspicion that somebody else was present. The smaller the place, the more likely the whole place can be swept. Also, defendant asked the officer to get pants for him to wear to jail, and that sent the officer through the kitchen. United States v. Brookshire, 2009 U.S. Dist. LEXIS 1140 (N.D. Ind. January 8, 2009):

Because the Defendant focuses on the second type of Buie sweep, he does not specifically address the area that he considers the place of his arrest or dispute that the kitchen was immediately adjoining the hallway in which he asked a deputy to go to get his pants. The D.C. Circuit rejected a defendant's narrow construction of his place of arrest and corresponding adjoining spaces and held that "[i]f an apartment is small enough that all of it immediately adjoins the place of arrest and all of it constitutes a space or spaces from which an attack could be immediately launched, ... then the entire apartment is subject to a limited sweep of places where a person may be found." United States v. Thomas, 429 F.3d 282, 287-88 (D.C. Cir. 2005) (brackets, quotations marks, and citations omitted) (upholding search of bedroom that was a straight shot down the hallway even though it was fifteen feet away from the area of apprehension); see also United States v. Lauter, 57 F.3d 212 (2d Cir. 1995) (upholding precautionary sweep of second room of a two-room apartment, which was immediately adjacent to room where the defendant was arrested); United States v. Ford, 56 F.3d 265, 270 (D.C. Cir. 1995) (finding that a bedroom immediately adjoining a hallway in which the defendant was arrested was within the scope of a precautionary Buie sweep). Although the Seventh Circuit has not directly addressed the meaning of "immediately adjoining" in the context of the confined quarters of a small house or apartment, in dicta it characterized Buie as allowing police to "walk through rooms adjacent to the one in which they make an arrest, to ensure that no danger lurks within," and that the "officers need not demonstrate any danger; they may simply look as a precaution." United States v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995) (using the Buie scenario as an example of the kind of intrusion that is justified by a lower degree of suspicion).


Permalink 02:14:30 pm, by fourth, 229 words, 381 views   English (US)
Categories: General

CA6: Large drug transactions create nexus to defendant's house

Nexus between drugs and defendant's home was shown from defendant's engaging in significant drug transactions. It was logical they would be in his house. United States v. Gunter, 551 F.3d 472 (6th Cir. January 8, 2009):

As discussed above, the affidavit contains evidence that Gunter was engaged in repeated purchases of cocaine in the one to four kilogram range. Because the quantity of drugs and the repeated nature of the transactions make it reasonable to conclude that Gunter was engaged in ongoing drug trafficking, it was reasonable to infer that evidence of illegal activity would be found at Gunter's residence. See United States v. Jones, 159 F.3d 969, 974-75 (6th Cir. 1998) (probable cause to search residence existed where defendant engaged in two recorded transactions outside of his residence because "[i]n the case of drug dealers, evidence is likely to be found where the drug dealers live").

The issuing magistrate does not have to personally view child porn to issue a search warrant for it. United States v. Wellman, 2009 U.S. Dist. LEXIS 833 (S.D. W.Va. January 7, 2009).

Defendant conceded facts in his motion to suppress that showed that reasonable suspicion existed, so a suppression hearing was not required. United States v. Pasillas, 2008 U.S. Dist. LEXIS 106221 (W.D. La. December 12, 2008).*

Defendant driving a stolen vehicle had no standing to contest its search. United States v. Pickar, 2008 U.S. Dist. LEXIS 106240 (D. Minn. November 18, 2008).*

Permalink 02:00:36 pm, by fourth, 237 words, 974 views   English (US)
Categories: General

CA4: Video surveillance in open field not protected by Fourth Amendment

"The appellant in this case, Steve Vankesteren, invites us to consider the application of the Fourth Amendment to a product of modern surveillance technology: namely, a hidden, fixed-range, motion-activated video camera placed in the appellant's open fields. We find that the protective wall of the Fourth Amendment does not shield the appellant from the Commonwealth's use of such a camera, and we therefore affirm the decision of the district court." United States v. Vankesteren, 553 F.3d 286 (4th Cir. 2009):

Given the facts of these Supreme Court decisions [Hester (1924), Oliver (1984), Dunn (1987)], Vankesteren has little on which to base his case. Vankesteren's fields were located a mile or more from his home, the land was being used for farming and not intimate activities, VDGIF had received a report of a trapped protected bird, and there is no indication in the record that Vankesteren had taken any steps to protect his field from observation. Therefore, under the Supreme Court's jurisprudence, the subject land must be classified as open fields and not curtilage, and Vankesteren has no reasonable expectation of privacy in those open fields.

As noted previously, Vankesteren has essentially conceded this point. Vankesteren instead stakes his case on the argument that hidden surveillance cameras are subject to a higher degree of Fourth Amendment scrutiny. He cites cases in support of that proposition; yet, none of these cases involve open fields where the defendant presumably has no reasonable expectation of privacy.


Permalink 08:01:48 am, by fourth, 308 words, 323 views   English (US)
Categories: General

M.D.Fla.: No time for anticipatory SW left police with a protective sweep, which was valid

Defendant's tight control over the movement of the drugs and the money prevented an anticipatory search warrant and created exigency itself. Therefore, the police were justified in entry on a Buie protective sweep and the plain view that resulted was lawful. United States v. Flores, 2009 U.S. Dist. LEXIS 707 (M.D. Fla. January 7, 2009) (the court also chided the lawyers for not citing Grubbs):

As Grubbs stated, an anticipatory search warrant cannot issue until the officers have probable cause that the triggering condition will occur. The triggering condition in this case was the confidential source seeing the crystal meth; as the officers correctly recognized, given the multiple occasions when this group of suspects had promised drugs but failed to deliver, nothing short of seeing the drugs was sufficient. The confidential source reported at 6:30 or 6:38 p.m. (the time was variously stated in the testimony) that he had seen the crystal meth. Given the factual background with these particular suspects, there was not probable cause to believe that the drugs would be there prior to that time. Under the terms of the agreement with the suspects, $23,000 was to be brought by a female money courier immediately thereafter, and the courier was to have been within minutes of the house. Given the suspects' history of caution in the transaction and their stated desire to do the transaction quickly, there was simply not sufficient time to obtain an anticipatory search warrant, even by telephone or electronic media. This is not based upon speculation, but upon the reasonable inferences of the facts known to the officers at the time.

A NYC livery cab encroaching on a sidewalk was sufficient cause for a stop. The driver's furtive movements after the stop gave RS. United States v. Stewart, 551 F.3d 187 (2d Cir. January 8, 2009), rev'g United States v. Stewart, 491 F. Supp. 2d 423 (S.D. N.Y. 2007).*

Permalink 07:18:59 am, by fourth, 315 words, 421 views   English (US)
Categories: General

OH8: CI being defendant's stepfather supported reliability

CI being defendant's stepfather and telling officer face-to-face about defendant being in a shooting and officer asking questions of the CI made it reliable. State v. Portis, 2009 Ohio 32, 2009 Ohio App. LEXIS 25 (8th Dist. January 8, 2009):

[*P24] Under the totality of the circumstances, we find that Roberts' information was reliable. Roberts told police, face-to-face, that appellant had been shooting, left in a tan car, and had lived at the address on 91st Street. Roberts answered all of the officer's questions right at the scene. Finally, Roberts was motivated to inform the officers after they asked who had been shooting. In fact, the fact that the suspect was Roberts' stepfather makes the information even more reliable. It is unlikely that Roberts would purposely misinform the police that a family member had committed a crime.

The police had no consent or exigent circumstances for the entry into defendant's property. They knew nothing of guns until after they were inside. United States v. Tatman, 615 F. Supp. 2d 664 (S.D. Ohio 2008):

As in those cases, the victim in this case, Taresa Tatman, was not in any imminent danger. She was standing safely outside the house in the presence of two law enforcement officers. Moreover, at the time Deputy Clark entered the house, he did not know that there were any weapons inside the house. Nor was there any reason to believe that anyone other than Defendant was inside the house. Ms. Tatman had told Deputy Clark that she had dropped the kids off at a friend's house before the alleged physical confrontation. Therefore, as in Ohlsen, there is no evidence to suggest that delaying the entry in order to obtain a warrant would present any risk to Ms. Tatman, the officers, or anyone else. In short, even though the officers were at the house to investigate a complaint of domestic violence, there were no exigent circumstances to justify a warrantless entry.

Permalink 06:59:59 am, by fourth, 211 words, 294 views   English (US)
Categories: General

Two typos in SW did not undermine PC or void the search

Mere typographical errors on the face of the search warrant are insufficient to suppress. (Checking a box about relying on a CI and failing to include the time of issuance.) Besides, the good faith exception would save the search anyway. United States v. Fitzgerald, 2009 U.S. Dist. LEXIS 456 (W.D. Va. January 6, 2009).*

Driver was CI to her passenger being in possession of cocaine and a gun. The driver was a prior CI for the police and had direct information, and she signaled the officer to initiate the stop. Jackson v. State, 295 Ga. App. 427, 671 S.E.2d 902 (2009).*

Trial court might have erred in concluding that a joint occupant of the premises could consent to a search of defendant's own closet, but the record is incomplete for the appellate court to reach that issue. Here, however, the other evidence in the case is so significant on the issue of defendant's involvement in the crime that the product of the search is harmless in comparison. State v. Early, 194 N.C. App. 594, 670 S.E.2d 594 (2009).*

Defendant was seen driving on a suspended DL and he was then moving furtively when the officer's attention was drawn to him. That was cause for the stop. United States v. Harris, 2009 U.S. Dist. LEXIS 464 (E.D. Va. January 6, 2009).*


Permalink 07:53:13 am, by fourth, 619 words, 734 views   English (US)
Categories: General

CA10: One officer's mistake not insulated under Leon and Evans

Good faith exception could not be applied to the officer's good faith belief that the drug dog was well trained without proof that the dog was. Also, one officer's mistake applies to all of them, and an officer cannot rely on the mistakes of another to invoke the good faith exception [not to mention it was a warrantless search and why should Leon apply to a warrantless search?]. United States v. Clarkson, 551 F.3d 1196 (10th Cir. January 6, 2009):

In declining to extend the Leon good-faith exception to mistakes made by law enforcement personnel, this court has relied on the Leon Court's statement that the purpose of the exclusionary rule is to deter police misconduct. Herrera, 444 F.3d at 1249-51. That "[t]he Supreme Court has never extended Leon's good-faith exception beyond circumstances where an officer has relied in good faith on a mistake made by someone other than the police" provides additional support for this court's continued reliance on the Leon Court's stated purpose of the exclusionary rule and continued refusal to extend the good-faith exception to mistakes by law enforcement. Id. (emphasis added).

The Supreme Court's decision in Arizona v. Evans, 514 U.S. 1, 15-16 (1995), further reinforces confinement of the good-faith exception. There, in determining whether to apply the good faith exception to an illegal search, the Court explicitly distinguished court employees from law enforcement personnel for purposes of the Leon good-faith exception. Id. at 14-15. The Court again recognized "that the exclusionary rule was historically designed as a means of deterring police misconduct." Id. at 14. The Court went on to explain that excluding evidence based on a court employee's clerical error would not deter improper conduct, since unlike police officers, "court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, they have no stake in the outcome of particular criminal prosecutions." Id. at 15 (citation omitted). The Court then created an exception to the exclusionary rule for clerical errors of court employees and remanded the case for a determination of whether a court clerk or a member of law enforcement had made the mistake in question. See id. at 16. Thus, the Court was willing to apply the good-faith exception only where a neutral third party, not a law enforcement member, was responsible for the error leading to the Fourth Amendment violation. See also Illinois v. Krull, 480 U.S. 340, 349-50 (1987) (extending Leon's good-faith exception where officers conducting a search relied in good faith on a statute's regulatory scheme permitting warrantless administrative searches, when the statutory regulatory scheme was later declared unconstitutional).

Here, any mistake on which Officer Sutera relied was made by a fellow officer. Were the good faith exception to apply in this circumstance, the improper police conduct of conducting a search with an untrained or unreliable dog would not be effectively deterred. Such a rule would minimize motivation for police officers to ensure a dog is actually trained or reliable before deploying it. Allowing the good-faith exception to apply in this situation would therefore contravene the purpose of the exclusionary rule. See James v. Illinois, 493 U.S. 307, 311 (1990) ("[The exclusionary rule is the] principal mode of discouraging lawless police conduct. Without it the constitutional guarantee against unreasonable searches and seizures would be a mere form of words." (alteration and quotation omitted)). The district court thus erred in concluding Officer Sutera's reasonable reliance on Oso's [the dog'] reliability warranted a finding of probable cause and declining to rule on whether Oso was qualified. On remand, the district court should determine whether Oso was trained or otherwise reliable. While successful completion of a training course and a current certification would be satisfactory, we do not exclude the possibility that reliability can be established by other evidence.

Permalink 07:49:48 am, by fourth, 340 words, 314 views   English (US)
Categories: General

MA: Leaving bags by side of road was a waiver of any REP

Defendant's leaving belongings by side of the road was a waiver of his reasonable expectation of privacy. The fact the defendant may have thought he would get back to them did create a reasonable expectation of privacy. Commonwealth v. Nattoo, 452 Mass. 826, 898 N.E.2d 827 (2009), aff'g [and essentially adopting] Commonwealth v. Nattoo, 70 Mass. App. Ct. 625, 876 N.E.2d 431 (2007), posted here:

The judge rejected the Commonwealth's argument that the police conducted a proper inventory search. The search was not permissible as an inventory search because, she concluded, the bags searched were not in the possession of, or carried by, the defendant at the time of his arrest. In addition, Officer Crevier failed to follow the department's inventory policy by preparing a written inventory report at the time he searched the bags or at the time he arrived at the police station with the bags. The judge concluded that the search was a pretext for a general investigatory search, and allowed the defendant's motion to suppress the handgun.

The Appeals Court reversed, concluding that there was no search in the constitutional sense because "the defendant could not reasonably have expected that bags he left by the side of a street would remain insulated from examination by any member of the public, including the police." Commonwealth v. Nattoo, 70 Mass. App. Ct. 625, 626, 633, 876 N.E.2d 431 (2007). Thus, as reasoned by the Appeals Court, the defendant was unable "to establish that his subjective expectation of privacy was [objectively] reasonable," a component necessary to a protected expectation of privacy. Id. at 630. See Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991).

A traffic stop does not require a Miranda warning under Berkemer. State v. Chrzanowski, 2008 Ohio 6993, 180 Ohio App. 3d 324 (11th Dist. 2008).*

Officer's forcing way in, breaking the latch, after responding to a 911 hang up call where the occupants refused to answer repeated knocks at the door and denied calling and lied about others being was all reasonable. Clark v. Pielert, 2009 U.S. Dist. LEXIS 126 (D. Minn. January 5, 2009),* relying on United States v. Najar, 451 F.3d 710, 712-20 (10th Cir. 2006), with similar facts.

Permalink 07:26:18 am, by fourth, 238 words, 366 views   English (US)
Categories: General

W.D.N.C.: DL roadblock valid

DL roadblock was valid. Defendant's license having been revoked, he was subject to arrest. United States v. Nixon, 2008 U.S. Dist. LEXIS 105889 (W.D. N.C. December 18, 2008):

Although Nixon does not challenge the validity of the initial stop, this Court notes as a preliminary matter that the driver's license checkpoint was permissible. Vehicle checkpoints are permissible where all drivers on a certain road are stopped as they pass, or where all cars at specific intervals (e.g., every fifth car) are stopped, so long as the intrusion on the drivers' privacy and time is minimal, the procedure is uniform, and the stop satisfies a purpose other than normal law enforcement. See City of Indianapolis v. Edmond, 531 U.S. 32, 37-38 (2000); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450-55 (1990). Here, all drivers were stopped and asked to produce their licenses before they could proceed on their way. The intrusion was minimal and uniformly imposed. The purpose of the stop was roadway safety, a purpose approved by the Supreme Court as distinct from normal law enforcement. Edmond, 531 U.S. at 37-38. Of especial relevance to the present case, the Supreme Court in Edmond suggested in dicta that a "roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible." Id. at 37-38. Thus, the initial seizure of Nixon at the checkpoint for the purpose of checking his driver's license was reasonable and comports with Supreme Court precedent on the issue.

Permalink 07:11:28 am, by fourth, 458 words, 778 views   English (US)
Categories: General

E.D.N.Y.: Co-tenant lacked common authority to consent to a search of a separate closet, pockets, and closed containers inside

Third party did not have the authority to consent to a search inside a closet in co-tenant's separate bedroom. United States v. Chisholm, 2009 U.S. Dist. LEXIS 140 (E.D. N.Y. January 5, 2009):

Relatives with joint access do not automatically have authority to consent to a search of closed containers in a room occupied by a defendant. See United States v. Orejuela-Guevara, 659 F. Supp. 882, 887-89 (E.D.N.Y. 1987) (holding that joint occupant had no common authority over or implied right of access to containers in co-occupant's closet); see also United States v. Davis, 332 F.3d 1163, 1169 (9th Cir. 2003) (tenant did not have authority to consent to search of defendant's gym bag in defendant's bedroom); United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (mother had authority to consent to search of son's bedroom but no authority to consent to search of son's footlocker in the bedroom); United States v. Robinson, 999 F. Supp. 155, 162-63 (D. Mass. 1998) (mother had authority to consent to search of adult son's bedroom for items open to view but not a closed vinyl bag in the room or the pockets of a pair of pants in the room). Once a search extends beyond the common areas of the jointly occupied premises, the determination of whether a third party has the requisite authority to consent requires "layered analysis to identify and accommodate these areas entitled to independent constitutional protection." Orejuela-Guevara, 659 F. Supp. at 887. An adult's dresser drawer is generally recognized as a place where a person can place private items and can expect them to remain private. See Randolph, 547 U.S. at 112 ("[W]hen it comes to searching through the bureau drawers, there will [*24] be instances in which even a person clearly belonging on the premises as an occupant may lack any perceived authority to consent . . . .").

. . .

Even if Ms. Staley had actual or apparent authority to hang clean clothes in Defendant's closet, I agree with Judge Go that there is no evidence that she had any authority over or interest in rummaging through the pockets of Defendant's jackets. Nor is there any evidence that Ms. Staley or Ms. Chisholm had authority over or an interest in what was on or in a box perched on the closet rod, especially given Judge Go's finding that that Ms. Staley's access to Defendant's bedroom was essentially limited to tidying up the room and putting away clean laundry. (R&R 41.) Ms. Staley thus did not have the required actual or apparent authority to grant consent to a search of the locations of the closet where evidence was seized, as required by Moore v. Andreno, 505 F.3d at 208-09. The Government's objections with respect to the search of the closet are thus denied, and this portion of the R&R is adopted in full.


Permalink 01:41:37 pm, by fourth, 597 words, 350 views   English (US)
Categories: General

AR: Questions to a motorist going right into questions about drugs would lead motorist to believe he was not free to leave

Arkansas concludes that questioning about drugs right on the heels of a warning ticket would lead a reasonable person to believe he was not free to leave and suppressed. Bedsole v. State, CACR08-376 (Ark. App. January 7, 2009):

The issue presented is whether a reasonable person in Roger Bedsole’s position would have felt free to ignore State Trooper Condley’s post-traffic-stop questions and proceed on his way. Bedsole was traveling east on I-40 in Pope County when Condley noticed Bedsole’s car cross the fog line onto the shoulder. Condley initiated a traffic stop. Bedsole pulled over and got out of his car to talk to Condley. Bedsole provided his driver’s license, the rental agreement for his car, and answered Condley’s questions. Condley issued Bedsole a warning. The video tape of the stop reveals that, right after receiving the warning, Bedsole began to turn toward his vehicle. At that instant, Condley said “[l]et me ask you a question.” The Trooper asked whether Bedsole had any drugs or weapons in his car. Bedsole said that he did not. Condley then asked to search the car. And Bedsole agreed.

. . .

The circumstances of the Lilley stop and this one were similar, though not identical. The officer asked Lilley to come back to his patrol car, where there was a drug dog in the backseat, and Lilley complied. Lilley, 362 Ark. at 437–38, 208 S.W.3d at 786–87. The officer then ran the appropriate checks, asked Lilley some general questions, and issued a warning. Ibid. Here, Bedsole voluntarily got out of his car and spoke with Trooper Condley near the front of the patrol car. Bedsole remained between the vehicles while Condley ran the appropriate checks and asked him general questions. This record contains no evidence that Condley had a drug dog with him. In sum, the citizen’s location in Lilley presented greater coercive circumstances than in this case.

Trooper Condley then issued Bedsole the warning and, after a moment’s pause, said “[l]et me ask you a question.” Officer Condley testified that he “gave [Bedsole] a warning and handed his driver’s license back and then started talking to him about if he had anything illegal in the vehicle.” 362 Ark. at 438, 440, 208 S.W.3d at 787–88. Bedsole also testified that, after Trooper Condley issued the warning and returned his paperwork, “[h]e never quit talking to me.” The video confirms this testimony. ...

This case presents a closer question than Lilley. After considering the totality of the circumstances, however, we conclude that a reasonable person would not have felt free to ignore Trooper Condley’s final questions and proceed on his way. We therefore hold that the post-warning encounter was not consensual. Because the State concedes that Condley did not have reasonable suspicion, the Trooper illegally detained Bedsole. The circuit court should have suppressed all the evidence obtained as a result of that illegal detention. Lilley, 362 Ark. at 445–46, 208 S.W.3d at 792.

(Comment: As I have repeatedly said here, the police-citizen balance always tips toward the police in these cases because courts refuse to recognize the reality that a person is just not free to terminate roadside encounter, get back in a car, and leave. The police know it, and they exploit it. Judges who refuse to recognize it are engaging in legal fiction, just to affirm the trial court's denial of a suppression motion. The conventional wisdom is that the Arkansas Supreme Court will grant review and probably affirm the trial court in about eight weeks, notwithstanding the thoughtfulness and reputation of the people on the Court of Appeals panel.)

Permalink 08:58:21 am, by fourth, 150 words, 324 views   English (US)
Categories: General

MO: Absent objecting target of search can't invoke Randolph

Absent objecting defendant did not stand in the position of the present and objecting target in Randolph. State v. Oliver, 2008 Mo. App. LEXIS 1756 (December 16, 2008):

Fourth, there is no obligation that the officers had to tell Wife that Appellant had previously refused to give his consent to search. See Hudspeth, 518 F.3d at 959. Wife was in the bedroom speaking to the caseworker when Appellant informed the officers that they needed to get a search warrant for the computer and there is nothing in the record which suggests Wife knew Husband had previously denied consent. "Thus, we must conclude [the officers'] failure to advise [Wife] of her husband's earlier objection to a search of the home computer did not convert an otherwise reasonable search into an unreasonable one." Hudspeth, 518 F.3d at 960-61. "[T]he Fourth Amendment's reasonableness requirement did not demand that the officers inform [Wife] of her husband's refusal." Id. at 960.

Permalink 07:53:54 am, by fourth, 121 words, 566 views   English (US)
Categories: General

N.D.Iowa: Recent drug transactions justified stop and felony arrest

Knowledge that the passenger in a vehicle that was stopped had just been involved in a drug transaction was justification for a pat down. United States v. Hardy, 2009 U.S. Dist. LEXIS 70 (N.D. Iowa January 5, 2009), relying on United States v. Oliver, 2008 U.S. App. LEXIS 26394, 2008 WL 5333835 (8th Cir. December 23, 2008).*

Similarly, a felony stop at gunpoint is justified by knowledge of a just occurring hand-to-hand drug transaction. United States v. Brewer, 2009 U.S. Dist. LEXIS 71 (N.D. Iowa January 5, 2009).*

The question was probable cause for arrest, and it isn't the level of proof required for conviction [not that appellant actually argued that]. Here, the police sufficiently corroborated the CI to justify the stop. Pullan v. State, 104 Ark. App. 78, 289 S.W.3d 180 (2008).*

Permalink 07:22:47 am, by fourth, 224 words, 439 views   English (US)
Categories: General

CA9: Midday encounter quickly led to consent

Defendant consented to a search when officers encountered him in midday, parked next to him, and asked to talk to him. United States v. Dawson, (4th Cir. 2008), quoting United States v. Weaver, 282 F.3d 302, 309-10 (4th Cir. 2002)* (unpublished):

[g]enerally speaking, a "seizure" warranting protection of the Fourth Amendment occurs when, in view of the totality of the circumstances surrounding the "stop," a reasonable person would not feel free to leave or otherwise terminate the encounter. Because the test is an objective one, its proper application is a question of law. Circumstances where the citizen would feel free to go, but stays and has a dialogue with the officer, are considered consensual, and therefore do not implicate the Fourth Amendment. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. In applying the totality of the circumstances test, courts look to numerous factors including the time, place and purpose of the encounter, the words used by the officer, the officer's tone of voice and general demeanor, the officer's statements to others present during the encounter, the threatening presence of several officers, the potential display of a weapon by an officer, and the physical touching by the police of the citizen.


Permalink 01:16:30 pm, by fourth, 227 words, 521 views   English (US)
Categories: General

NYC TLC to requre recording of passengers in taxicabs

The NYC Taxicab and Limousine Commission is seriously considering video recording passengers in NYC Taxicabs, according to a posting yesterday afternoon on the City Blog on NYTimes: A ‘Black Box’ for Taxicabs?:

You may be recorded.” Soon, a select group of New York City yellow taxicabs will be marked with decals bearing that message.

As part of a data-collection experiment, the New York City Taxi and Limousine Commission will install windshield-mounted cameras, similar to the “black boxes” in aircraft, that will record data on vehicle use, road accidents and other information in and around the city’s yellow taxicabs.

The information about the cameras has been making the rounds of the Internet, including a Web site known as YellowCabNYC. The Daily News, which reported on the pilot project, described the initiative as a form of surveillance, but officials at the Taxi and Limousine Commission disputed that term.

A seven-page presentation [pdf] [dated 12/18/08] released by the commission said the windshield-mounted cameras, under the model name MacBox III, were proposed by a manufacturer, Drivequest Technologies.

Las Vegas has required this for years. You can see them in the cabs.

As one of the comments says:

“Of course you can continue to have sex in NYC cabs. It will just be recorded.”
— coco

In 2007, the S.D. N.Y. upheld a TLC requirement of GPS transmitters in cabs, posted here.

Permalink 10:07:39 am, by fourth, 214 words, 344 views   English (US)
Categories: General

PA: Suspected parole violator did not show REP in place searched looking for him as an absconder

The parole search here was justified by reasonable suspicion under Samson (if necessary). Defendant was a regular absconder. He also failed to put on any proof of a reasonable expectation of privacy in the premises where he was found. Evidence found resulted in a new case. Commonwealth v. Hunter, 2008 PA Super 294, 963 A.2d 545 (2008).*

Officers had reasonable suspicion to stop defendants for matching description of suspects shortly after crime report. Commonwealth v. Acevedo, 73 Mass. App. Ct. 453, 898 N.E.2d 864 (2009)*:

In the case at bar, the judge found that the specific facts on which the detectives based the stop of the defendant were the broadcast received by the detectives, the proximity of the suspects to the scene of the crime, the minor lapse of time (three minutes) between the report of the crime and Lyons's observation of the suspects, and the fact that one of the two suspects was wearing white Converse sneakers. In addition, and of great significance, was the fact that here, unlike the situation in Cheek, the judge found that the suspects were the only persons seen by the detectives "who generally fit the description given via the radio dispatch." Viewing the circumstances as a whole, we agree with the motion judge that the stop was proper and the evidence secured therefrom admissible.

Permalink 09:25:31 am, by fourth, 209 words, 299 views   English (US)
Categories: General

OH9: Man with a gun and observed activities justified warrantless entry to secure premises

The facts justified a warrantless entry to secure the premises pending getting a warrant based on a man going inside with a gun report and other highly suspicious activity indicative of a crime inside. State v. Motley, 2008 Ohio 6937, 2008 Ohio App. LEXIS 5835 (9th Dist. December 31, 2008)*:

[*P14] In its decision denying Motley's motion to suppress, the trial court stated that the officers responded to a call from Motley's neighbor who observed a male with a gun enter 664 Blaine, a known drug house. Shortly before receiving this call, Officer Hankins arrested a man who had purchased drugs from 664 Blaine. The court stated that the outside of the house "was fraught with indicia of drug dealing" including covered windows and video surveillance equipment. As the officers approached the door, a female flung the door open, after exclaiming her frustration that the surveillance camera had been manipulated to conceal the identity of the individual(s) standing behind the door. The officers observed two males run away from the door. Once inside the apartment, the officers observed a gun as well as other contraband. The officers obtained a warrant before searching the residence. The trial court held that, in light of the totality of the circumstances, the officers had probable cause for a warrantless entry.

Permalink 09:17:34 am, by fourth, 113 words, 520 views   English (US)
Categories: General

OH11: Guilty plea was res judicata to later action for return of seized property

Defendant's guilty plea and prior losing of a motion to return property in a criminal case was res judicata to a later action for return of seized property. State v. Dudas, 2008 Ohio 6983, 2008 Ohio App. LEXIS 5808 (11th Dist. December 31, 2008).

Looking under the hood was within the scope of consent. There, reasonable suspicion or even probable cause had developed. Pincherli v. State, 295 Ga. App. 408, 671 S.E.2d 891 (2008).*

Officer's failure to disclose that defendant had a piece of paper in his mouth when he took a PBT was not material to the finding of probable cause, and the trial court's finding of a Franks violation was clearly erroneous. People v. Mullen, 282 Mich. App. 14, 762 N.W.2d 170 (2008).*

Permalink 08:35:44 am, by fourth, 66 words, 328 views   English (US)
Categories: General

CA6's Davis fuzzy dice case of 12/19 withdrawn

A week ago was "NLJ on CA6's Davis's fuzzy dice" posted here. This is about United States v. Davis, 2008 U.S. App. LEXIS 25757 (6th Cir. December 19, 2008), posted here, holding that the Michigan statute on things hanging from a vehicle mirror was unconstitutional, but the search there was valid under DeFillippo and Krull. I see on NLJ again that the 6th Circuit has withdrawn the opinion.

Permalink 08:14:53 am, by fourth, 303 words, 456 views   English (US)
Categories: General

S.D.Ohio: Search of house was attenuated from defendant's arrest on invalid state arrest warrant

Defendant's arrest was based on an invalid state warrant that clearly failed to show probable cause. Thus, the court had to determine whether the arrest was valid as a warrantless arrest. There was probable cause for the arrest, but Payton was implicated. The exclusionary rule would not be applied, however, because the search was attenuated from the unlawful arrest. United States v. Alfaro, 2008 U.S. Dist. LEXIS 105535 (S.D. Ohio December 24, 2008):

Considering these factors, the Court notes that there were no significant intervening circumstances in the instant case. Nor did a significant amount of time pass between Alfaro's arrest and his grant of consent. However, the Court finds that in the instant case, the remaining two factors tilt the scales toward finding that the causal chain was broken. First, Alfaro was read his Miranda rights prior to consenting to the search and that Alfaro indicated that he understood those rights. Second, as to the flagrancy of the misconduct, the Court finds that the officers did not act with a blatant disregard for the law. The arresting officers relied upon warrants approved by a judicial officer in Ohio. The arresting officers were not present when the warrants were secured, and therefore had no idea what Officer Crock stated to the judge when applying for the warrants or whether any affidavits separate from the complaints were provided. Instead, they believed that they had probable cause to arrest Alfaro and that valid warrants had been secured. As such, the officers were entitled to rely upon the warrants in good faith and the arrest of Alfaro was not an egregious violation of his rights.

School search was not excessive or overly intrusive where school official felt inside wasteband of defendant's pants. Search was otherwise justified. In re A. H. A., 2008 Tex. App. LEXIS 9715 (Tex. App.—Austin December 30, 2008).*


Permalink 10:22:02 pm, by fourth, 147 words, 397 views   English (US)
Categories: General Sherry Johnston case sets stranger

Was obtaining and executing the Sherry Johnson search warrant delayed because of the Presidential election? See Anchorage Daily News today: Trooper, union say politics delayed Johnston drug case. The principals in this controversy contend that obtaining the search warrant was either delayed because of politics or because they wanted to make another Oxy buy before getting the warrant. So much for her right to a fair trial. They blame her in the press for the delay. There is even a claim that the Secret Service was present so she wasn't dealing drugs then. Bizarre.

So, can she claim the delay in executing the search warrant made the probable cause stale? The state will contend that this was (apparently) an ongoing drug operation. Even three months would not be stale. See, e.g., here.

How convenient to blame her in the press for the delay for a CYA.

Permalink 11:22:48 am, by fourth, 22 words, 474 views   English (US)
Categories: General

Additional Obama DOJ picks

Elena Kagan, Solicitor General
David Ogden, Deputy Attorney General
Tom Perrelli, Associate Attorney General

Their short bios are here on

Permalink 08:29:12 am, by fourth, 590 words, 1030 views   English (US)
Categories: General

FL1: Video surveillance in a hospital room here was not under a reasonable expectation of privacy

Defendant was charged with child abuse murder in Florida. After the death of her child in Florida, she moved to West Virginia. Defendant was suspected there of child abuse by Munchausen syndrome by proxy, and video surveillance was set up in her child's hospital room in West Virginia to record her interactions with a second child. Under the narrow facts of this case, she did not have a reasonable expectation of privacy in that room that there would be no surveillance. State v. Butler, 1 So. 3d 242 (Fla. App. 1DCA 2008):

We do not read Jones or any analogous authority to create an unbending and unequivocal rule that individuals within hospital rooms invariably have reasonable and broad expectations of privacy. Such a reading would be counter to the dictate of Katz that "the Fourth Amendment protects people, not places." Katz, 389 U.S. at 351. Instead, the case law emphasizes that the objective reasonableness of an expectation of privacy in a hospital setting turns on the particular circumstances of each case. See, e.g., State v. Stott, 794 A.2d 120, 127 (N.J. 2002) (noting that "a patient admitted for long-term care may enjoy a greater expectation of privacy than one rushed to an emergency room and released that same day. Moreover, the nature or scope of the privacy interest may differ depending on the facts and circumstances of a given case."); People v. Brown, 151 Cal. Rptr. 749, 754 (Cal. Ct. App. 1979) (observing that "the question of privacy in a hospital does not merely turn on a general expectation of privacy in use of a given space, but to some degree depends on the person whose conduct is questioned. ... [A] patient may well waive his right of privacy as to hospital personnel, [but] it is obvious that he has not turned 'his' room into a public thoroughfare.").

The surveillance at issue here occurred in a type of space in which, under some circumstances, individuals have held reasonable expectations of privacy, but that alone does not mean appellee's expectation was reasonable in this case. See Katz, 389 U.S. at 351; accord Brown, 151 Cal. Rptr. at 754 (observing that "the question of privacy in a hospital ... to some degree depends on the person whose conduct is questioned"). We find the trial court erred by apparently concluding that society is prepared to recognize as reasonable appellee's expectation that her interactions with her heavily monitored and very sick child in a hospital bed would remain private.

First, no record evidence supports the conclusion that appellee's presence in her son's room was so established that she would reasonably have regarded the room as affording her a quantum of privacy equivalent to that she would expect in a hotel room. In fact, although nurses brought meals to Butler in the room, Butler alleged in her motion to suppress that hospital staff urged her to stay overnight, suggesting it was no foregone conclusion that she would stay in the room at all.

. . .

We emphasize that our conclusion regarding the reasonableness of appellee's expectation of privacy is limited to the peculiar and, fortunately, rare facts presented in this case. Our opinion by no means stands for the proposition that the Fourth Amendment permits the government to set up video surveillance in private hospital rooms indiscriminately. That, quite simply, is not the question confronting us. We merely hold that, as to appellee's interactions with her son in the circumstances presented here, she did not have a reasonable expectation of privacy. Because no search in the constitutional sense occurred, Butler's right to be free from unreasonable searches has not been implicated.

Permalink 08:18:43 am, by fourth, 299 words, 531 views   English (US)
Categories: General

IL: Stickers and religious talismans not RS on totality

The stop of defendant's tractor trailer was based on hunches. Even collectively, the information did not rise to reasonable suspicion. People v. Ruano, 387 Ill. App. 3d 181, 900 N.E.2d 427, 326 Ill. Dec. 791 (2008):

Here, the stop of defendant's vehicle was based upon the status of its registration as well as other questionable factors related by Inspector Knaus. These additional factors included, inter alia, the truck's state of origin, that it was owner-operated, that it was adorned with certain stickers, that it pulled a refrigerated trailer complete with a padlock and seal, and that the cab was decorated with religious artifacts and talismans. According to the State, all of these factors observed by the officers, taken in combination, were sufficient to warrant an investigatory stop of defendant's truck. The defense counters that each of the factors articulated by the officers were subject to an innocent explanation.

In our view, the aggregate weight of these factors did not give rise to a reasonable suspicion, let alone probable cause. Beverly, 364 Ill. App. 3d at 368, 845 N.E.2d at 969. It is clear from the record that the trial court, while far from ignoring these factors, relied more heavily on the issue of the registration. Furthermore, we agree with defendant and the trial court that many of the factors cited as supporting a reasonable suspicion were subject to innocent explanations and even when considered together did not support a reasonable suspicion. Having reviewed the record and the trial court's findings regarding the factors, other than the registration issue, we find they were not manifestly erroneous. Luedemann, 222 Ill. 2d at 542, 857 N.E.2d at 195.

Defendant was driving a moped across the center line and not wearing safety goggles as a minor, and that was sufficient reasonable suspicion for the stop. State v. Washington, 898 N.E.2d 1200 (Ind. 2008).*


Permalink 05:50:00 pm, by fourth, 30 words, 611 views   English (US)
Categories: General

Am.U.L.Rev.: "The High-Crime Area' Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis"

Excellent new law review article: Andrew Guthrie Ferguson & Damien Bernache, The “High-Crime Area” Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 Am. U. L. Rev. 1587 (2008).

Permalink 12:26:27 pm, by fourth, 352 words, 444 views   English (US)
Categories: General

OR: When defendant shows "but for," burden shifts to state

When defendant shows "but for," the burden shifts to the state to explain it away. Here they did. State v. Ashbaugh, 225 Ore. App. 16 (2008):

In order to establish a "minimal factual nexus," the defendant must show that there is at least a "but for" relationship between the unlawful stop and the consent. Id. at 25. The burden then shifts to the state. If the state cannot establish "independence"--that is, that the evidence inevitably would have been discovered through the exercise of lawful procedures (such as a mandatory inventory policy), or that it was obtained not only as a result of the illegality, but also as the result of a chain of events that did not include an illegality (that is, an "independent source")--it must prove "attenuation." State v. Tyler, 218 Ore. App. 105, 110, 178 P.3d 282 (2008). Factors on which the state might rely to make that showing include the amount of time that elapsed between the illegality and the request for consent and the presence of any intervening or mitigating circumstances. Id.

In accordance with those principles, we must first determine whether defendant has established the requisite "but for" relationship. Hall, 339 Ore. at 25. We have explained that relationship, albeit in the civil context, as follows: one event is the "but for" cause of a second event if the second event would not have occurred if the first event had not occurred. Wallach v. Allstate Ins. Co., 206 Ore. App. 137, 143, 135 P.3d 404 (2006), aff'd, 344 Ore. 314, 180 P.3d 19 (2008); see also Blacks Law Dictionary 213 (8th ed 2004) (defining "but-for test" as "[t]he doctrine that causation exists only when the result would not have occurred without the party's conduct"). The state asserts that, although the request for consent occurred after the unlawful stop, defendant has failed to show that the request occurred as a result of it. Defendant's position is that, if her interaction with the officers had ended before they took her identification and began a warrant check, the subsequent series of events culminating in the officers' request for consent to search would never have occurred. Instead, the encounter would have ended and, presumably, the officers would have moved on.

Permalink 12:04:44 pm, by fourth, 286 words, 539 views   English (US)
Categories: General

NY4: Fire scene search by deputy sheriff violated Fourth Amendment

Fire scene search by deputy sheriff after fire was extinguished was a criminal search unrelated to the fire, and it was suppressed. People v. Christianson, 2008 NY Slip Op 10269, 2008 N.Y. App. Div. LEXIS 10026 (4th Dept. December 31, 2008):

At the time the Sheriff's Deputy arrived at defendant's home, the fire officials had extinguished the blaze, ventilated the home, and determined the origin of the fire. Moreover, the Fire Chief testified at the suppression hearing that he called for the Sheriff's Deputy to investigate other safety concerns, such as the locked interior door and boarded-up windows. Those concerns, however, did not pose an immediate threat to defendant and thus do not fall within the purview of the emergency exception to the warrant requirement (see generally People v Molnar, 98 NY2d 328, 332; People v Mitchell, 39 NY2d 173, 177-178, cert denied 426 U.S. 953).

The issue was really just one of consent, not fruit of the poisonous tree. State v. Melton, 2008 Iowa App. LEXIS 1296 (December 31, 2008):

In Bergmann our supreme court held that even if an initial pat-down search were illegal, marijuana discovered as a result of a subsequent search based on probable cause and exigent circumstances was not subject to suppression as fruit of the poisonous tree because there was no link between the pat-down and the subsequent search. Id. at 333, 338. The only incriminating evidence seized from Melton was marijuana found not during the pat-down search, but instead found during a later search to which Melton consented. Melton does not question the nature or character of that consent, or claim that it was involuntary.

Finding of one joint was not the entire basis of a search warrant for defendant's house. Other things she said contributed to it. State v. Gdovin, 2008 ME 195, 961 A.2d 1099 (December 30, 2008).*

Permalink 09:28:19 am, by fourth, 291 words, 395 views   English (US)
Categories: General

AFCCA: CI provided details, and was barely corroborated; GFE saved warrant

The CI gave detailed information about defendant's marijuana use. All the investigator could corroborate was that his roommate had a dirty UA. The issuing magistrate did not abuse her discretion in issuing the search warrant. Moreover, the good faith exception applied because the affidavit was not so lacking in probable cause that it should not have been issued. United States v. Cowgill, 2008 CCA LEXIS 494 (A. F. Ct. Crim. App. December 10, 2008) (2-1, but apparently unpublished):

The military judge also did not find the affidavit so facially deficient in that it was a "bare bones" affidavit. We concur. By definition, "bare bones" affidavits are documents so lacking in information that a reasonable magistrate cannot find probable cause. The standard is that it must not only be unreasonable for the magistrate to issue the warrant, but that it is entirely unreasonable. Leon, 468 U.S. at 923. The affidavit could have contained additional information, especially about the reliability of the source, and it should not have contained the mistaken erroneous information. However, the affidavit did provide that the source had detected the smell of marijuana on several occasions throughout the previous year, the number of times the appellant had been using marijuana at his residence in December 2006, and the manner in which the appellant was using the marijuana, which established a substantial basis for the magistrate to determine the existence of probable cause. Accordingly, the military judge did not abuse her discretion in denying the appellant's motion to suppress.

(Note: All the military appellate courts are separately listed on the right margin, too.)

Defendant's traffic stop was based on a taillight violation. It lasted 10 minutes and it was reasonable. Probable cause discovered before consent was revoked was still valid. United States v. Garcia, 317 Fed. Appx. 632 (9th Cir. 2008).*


Permalink 09:21:13 am, by fourth, 245 words, 337 views   English (US)
Categories: General

WI: SI permitted search of eyeglasses case found below driver's door after stop

An eyeglass case on the ground below the driver's door was subject to search incident under the circumstances. While a search incident is presumed unreasonable, the facts here showed an officer alone on the highway with two persons detained, and a potential weapon involved. The court sensitively analyzes the search incident rationale in detail on these facts. State v. Denk, 2008 WI 130, 315 Wis. 2d 5, 758 N.W.2d 775 (2008):

[*P61] We determine that the warrantless search here was incident to the arrest and was supported by both of the historical rationales at the heart of that exception, namely the safety of the arresting officer and the need to discover and preserve evidence. In this situation, Office Hahn was outnumbered at a late night arrest involving two men and knew that narcotics were present. The proximity of the eyeglass case to the car, to Denk, and to Pickering, as well as its unexplained location at Denk's feet, raised questions about the danger Denk posed acting alone or in concert with Pickering. Thus, we conclude that based on the reasoning in State v. Pallone, the search of the eyeglass case was a permissible search incident to the arrest of the driver of the vehicle.

Defendant urged police to search his car to prove that he did not have a stolen high powered rifle in the trunk (which he did). That was sufficient for the court to find consent. United States v. Clinton, 2008 U.S. Dist. LEXIS 104927 (N.D. Ind. December 30, 2008).*

Permalink 08:48:59 am, by fourth, 247 words, 321 views   English (US)
Categories: General

State trial judge does not have to have CI in front of him to determine credibility

State court judge did not have to have the CI in front of him to determine his credibility. Probable cause existed. United States v. Bowman, 2008 U.S. Dist. LEXIS 104777 (W.D. Wis. November 28, 2008).*

Free Exercise, Fourth and Fifth Amendment claims failed in DNA collection case. Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. December 30, 2008).*

The evidence supports the district court's finding of consent to search defendant's house. He was Mirandized and informed of his consular rights. He was in handcuffs in a police car and was asked for additional consent to open a locked cabinet. United States v. Espinoza-Flores, 303 Fed. Appx. 434 (9th Cir. 2008) (unpublished).*

Defendant's claim of his inability to understand English well enough to consent was rejected on the testimony of the four officers who conversed with him in English. United States v. Galvan-Mena, 2008 U.S. Dist. LEXIS 104764 (S.D. Ill. December 29, 2008):

Specifically, they testified that in the course of Mena's arrest and subsequent interview, the officers had conversations with Mena in English, all of his responses were in English, and all of his responses were appropriate and relevant to the questions being asked. The officers also testified that Mena never indicated that he could not understand English. This testimony indicates that Mena understood English well enough to understand Deputy Rich's request and consent to a search.

Where the defendant would lose on the merits of his search claim, defense counsel is not ineffective. United States v. Moreno-Chavarria, 2008 U.S. Dist. LEXIS 104661 (E.D. Ark. December 19, 2008).*


Permalink 08:12:36 am, by fourth, 266 words, 300 views   English (US)
Categories: General

TX: Resolving standing unnecessary where third party clearly consented

The question of defendant's standing to contest the search of the apartment he allegedly was staying in was not the point. The apartment could legitimately be searched under the tenant's consent because, regardless of defendant's standing, she consented to its search. Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. October 29, 2008).*

Defendant was observed by an officer with another in a car pull up next to a woman walking, and they asked her if she wanted to get into the car and smoke crack. She declined. The officer talked to the woman, and she was frightened by the experience and related what happened. That was sufficient showing of reasonable suspicion for a stop of the car under Terry. State v. Lee, 2008 Wash. App. LEXIS 2962 (December 29, 2008):

In sum, the trial court in this case properly considered the totality of the circumstances known to the officers at the time of the investigatory detention. Those circumstances, as established by evidence that is not disputed on appeal, were as follows: Stevens reported that two individuals in a specific car pulled over and told her to get in the vehicle to smoke crack cocaine while showing her that they possessed both crack and a crack pipe. Furthermore, Officer Haines corroborated much of Stevens's report in that he saw the car pull up to her in a high-crime area, saw the occupants speak with her briefly and saw her then walk quickly away, appearing frightened. The undisputed facts support the trial court's conclusion that the Terry stop was justified by the informant's statements and the circumstances corroborated by the officer's own observations.

Permalink 07:56:24 am, by fourth, 201 words, 346 views   English (US)
Categories: General

E.D. Cal.: Samson likely will be applied to probationer searches

In a civil case over an alleged unlawful probationer search, the court believes the Ninth Circuit will find that probationers have sufficiently less expectation of privacy and that the search here was lawful. While Samson deals with parolees and it is different than Knights, and the Supreme Court has not equated them yet, it probably will. Sanders v. Bishop, 2008 U.S. Dist. LEXIS 104507 (E.D. Cal. December 29, 2008).*

Defendant, instead of pulling over, slowed down to 10 mph and jumped out of his truck and fled on foot. That was an act of abandonment. The only inference the court can draw is that his jumping from the truck was a diversion to get the officer to deal with the driverless truck to buy time to escape. United States v. Leunen, 2008 U.S. Dist. LEXIS 104583 (D. Ariz. November 17, 2008).

Defendant had standing to challenge the stop of the car he was riding in, and it was valid. He had no standing in the area around his feet in the car he was riding in. Being directed to roll down the windows at the time of the stop does not offend the Fourth Amendment. United States v. Smith, 2008 U.S. Dist. LEXIS 104578 (S.D. Ga. November 10, 2008).*


Permalink 09:35:13 am, by fourth, 438 words, 382 views   English (US)
Categories: General

D.Neb.: Getting defendant off a train was a seizure without PC

Defendant was confronted by officers during a train stopover in Omaha. One bag was found with a lock and no tags and the officers asked who it belonged to and nobody claimed it. The officers saw defendant and decided that he was nervous looking, so they started talking to him and he told them his name, provided ID, told them where he was going to visit a girlfriend, and, when the train was about to leave, they got him off the train. He was effectively seized at that point, and the seizure of the second bag was unlawful. United States v. Posadas, 2008 U.S. Dist. LEXIS 104618 (D. Neb. December 29, 2008):

Even if the evidence could show that the officers were operating on anything more than a "hunch," the defendant in this case was effectively taken into custody when he was asked to leave the train, which would require probable cause. A reasonable person in the defendant's position would not have felt free to leave or to refuse the officers' request. See, e.g., also Florida v. Royer, 460 U.S. 491, 503 n. 9 (1983) (noting officers taking possession of defendant's airline ticket, luggage, and identification contributed to determination defendant had been seized because "[a]s a practical matter, Royer could not leave the airport without them."); United States v. Mendenhall, 446 U.S. 544, 554, (1980) (stating that "[a] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."). Whatever consent the defendant had provided to officers for a search of his bag before the seizure, the consent did not extend to the removal of the defendant and his bag from the train and the attendant consequence that the train would leave without him. The officers lacked probable cause to remove the defendant and his bag from the train.

Administrative search warrant for animal control violations was issued with probable cause and was sufficiently particular for "animals" in violation of law. Armon v. McHenry County, 2008 U.S. Dist. LEXIS 104553 (N.D. Ill. December 29, 2008):

The warrant was by no means a general warrant and was limited to authorizing a seizure of "any animals" that were being kept on the property in violation of animal control ordinances and statutes. While it is true that the warrant did not specify each and every animal that was to be seized, that type of detail would have been impossible, especially considering the sheer volume of animals that were present on the property and the fact that animals of the same type are not necessarily readily distinguishable.

Permalink 09:14:08 am, by fourth, 439 words, 379 views   English (US)
Categories: General

CA7: 911 call was sufficiently corroborated by observations of details; caller's name not required

911 call describing man who pulled a gun on his female companion was sufficiently corroborated by seeing people matching the description. A requirement of more corroboration or detail would make the 911 system incapable of being a crime tip system. United States v. Wooden, 551 F.3d 647 (7th Cir. December 29, 2008), lower court opinion posted here. As always, an interesting read from Judge Easterbrook:

Doubtless greater confidence can be achieved when police know a caller's identity, for then, as the Court observed in J.L., the threat of penalties for lies makes information more reliable. Yet as a practical matter a name given by a caller does not make the tip less anonymous. Suppose that the 911 call in this case had begun: "My name is John Jenkins, and I would like to report ...". That a caller gives a name does not mean that he is John Jenkins (either the President of Notre Dame or any other John Jenkins). Caller ID does not solve this problem for public phones or even home phones, which can be used by multiple people (including guests at a party); some subscribers block the service. Cell phones, which almost always use caller ID, can be stolen. And it would undermine the goal of the 911 system to require a caller to prove his identity, perhaps by coming to the station with a driver's license or passport, before the police react to the information. When crime is in progress, prompt action is essential. The fourth amendment prohibits unreasonable searches and seizures, and it has long been understood that, when the police believe that a crime is in progress (or imminent), action on a lesser degree of probability, or with fewer procedural checks in advance, can be reasonable. See, e.g., Brigham City v. Stuart, 547 U.S. 398 (2006).

. . .

A 911 system designed to provide an emergency response to telephonic tips could not operate if the police had to verify the identity of all callers and test their claim to have seen crimes in progress. A process of testing would frustrate the expedition that often is essential to protect lives and safety. A system that follows an "act fast, verify later" approach creates risks of unjustified action and makes it possible for someone holding a grudge to cause trouble. All of this goes into the calculus of reasonableness, together with the fact that Terry stops are brief, and people can quickly go on their way if the call proves to be unfounded. So we reiterate the holding of Drake and Hicks that a need for dispatch can make reasonable a stop that would not be reasonable if the police had time to investigate at leisure.

Permalink 12:10:27 am, by fourth, 197 words, 472 views   English (US)
Categories: General

New: Scotus Wiki added, broken links fixed, obsolete links removed

During the last week, I got access to parts of the template that weren't previously accessible. I added references to Scotus Wiki, a part of SCOTUSBlog, for each of the pending cases so readers can gain a better understanding of what is pending.

I also repaired some broken links on the website, updated other material, and deleted some obsolete material. The cert grants link had been inactive because I posted links to the cases. But, with the advent of Scotus Wiki, it seemed natural to just link to it.

On the State Appellate Court links, you are taken to LII's website which has some broken links. I tested all of them, and found corrections. I haven't figured out what to do with them since LII hasn't responded to e-mails about them for the last year. If you have a need for these states, these are the links:

Florida S.Ct. and 2d DCA
Kentucky Court of Appeals
Louisiana Circuit Courts of Appeal: 1st, 2d, 3d, 4th, 5th
Michigan S.Ct. and Court of Appeals
New York
South Carolina S.Ct. and Court of Appeals
South Dakota

There were 720,000 visits in 2008.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

© 2003-14, online since Feb. 24, 2003

URL hits since 2010


Fourth Amendment cases,
citations, and links

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Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)

Research Links:
  Supreme Court:
  S. Ct. Docket
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  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
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  "On the Docket"–Medill
  S.Ct. Monitor:
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  General (many free):
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx $ (criminal law/ 4th Amd) $ (4th Amd) $
  F.R.Crim.P. 41

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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