Archives for: April 2009

04/30/09

Permalink 08:35:09 am, by fourth, 396 words, 477 views   English (US)
Categories: General

D. Minn.: A second stop is not per se a seizure

First stop was on a bus, and a second stop occurred. The second stop is not per se an unreasonable seizure. United States v. Richards, 2009 U.S. Dist. LEXIS 35549 (D. Minn. April 23, 2009):

The mere fact that a law enforcement officer initiates a second encounter with a defendant after the initial encounter had been terminated, does not in itself render the second encounter a seizure. See United States v. Mendieta-Garza, 254 F. App'x 307, 314 (5th Cir. 2007) (holding, in a bus interdiction case, that the fact that a law enforcement officer initiated a second encounter after a first encounter had been terminated did not in itself necessitate a finding that the second encounter constituted a seizure); United States v. Ricardo, 472 F.3d 277, 283-84 (5th Cir. 2006) (holding that a second encounter with an officer did not result in a seizure when the first encounter, a traffic stop, had ended and the officer had returned all of the defendant's documents); see also United States v. Esparaza-Mendoza, 386 F.3d 953, 958-59 (10th Cir. 2004) (holding that an officer's making of a second request for identification does not, by itself, implicate the Fourth Amendment). Rather, determining if a seizure has occurred requires considering whether, in view of all of the circumstances surrounding the encounter, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980).

On a motion for return of property under Rule 41(g), the search warrant in this case was sufficiently particular. As to the deprivation of records, the government assured at the TRO hearing that copies of all records would be supplied to conduct the business. So the motion is denied. In re Search of Tobaccoville USA, Inc., 2009 U.S. Dist. LEXIS 35336 (D. S.C. April 10, 2009).*

During the traffic stop, the officer told that he was not issuing a ticket and the defendant could go, but the officer waited a few seconds and then asked if he could ask some questions, and that led to the defendant signing a consent form in Spanish. The defendant consented. United States v. Mendez-Cejas, 2009 U.S. Dist. LEXIS 34824 (D. Nev. January 15, 2009).*

To the same effect as United States v. Pedraza-Bucio, 2009 U.S. Dist. LEXIS 35367 (D. Utah April 23, 2009), where the stop was 15-20 minutes and a dog inspected the car during the process which did not extend it. The defendant was also found to have sufficient familiarity with English to understand to consent.

Permalink 07:53:12 am, by fourth, 426 words, 575 views   English (US)
Categories: General

W.D.Va.: Use of carpenter's scope to look in a locked trailer was an unreasonable search

Officer's entry into an open field and looking in the window of a locked trailer was not a search. The defendant had an expectation of privacy in the trailer, however. Inserting a carpenter's scope to see inside was a search. "[T]his time, brought, I call it a carpenter's scope, but it's kind of got a long tube on it with a monocular, just one eye piece, and it kind of uses--it's probably about two feet long and I could stick it through the crack where I could see in the … back of the trailer and that's where I could see it was a tremendous amount of jugs there." United States v. Smith, 623 F. Supp. 2d 693 (W.D. Va. 2009):

Though Agent Calhoun's entry onto the Pittsylvania County property was not a Fourth Amendment violation, the court does find that Jody Smith had a reasonable expectation of privacy in the locked trailer located on that land. See United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993) (affirming district court's finding that a defendant had a reasonable expectation of privacy in a barn located on an "open field"). However, Agent Calhoun's limited observation of the trailer's interior on March 1, 2006 was not a "search" under the Fourth Amendment, as he did not physically enter the locked trailer but merely peered inside the trailer with the aid of a flashlight. See Wright, 991 F.2d at 1186 (although defendant had a reasonable expectation of privacy in the barn, an officer could still "stand outside and peer into the barn through an open window or door" without a search warrant); United States v. Dunn, 480 U.S. 294, 304 (1987) (use of a flashlight to observe barn located on an open field "did not transform [officers'] observations into an unreasonable search within the meaning of the Fourth Amendment").

. . .

As for the second observation of the trailer on March 9, 2006, the court finds that this was a Fourth Amendment search. The "carpenter's scope" was inserted into the locked trailer. It did more than illuminate; it made visible inside the trailer what could not be observed from the outside the trailer with the naked eye by physically breaching the trailer's walls. See Wright, 991 F.2d at 1186 (while an officer could peer through a barn's window or door, the defendant's "reasonable expectation of privacy meant that the officer could not enter the barn without the benefit of a search warrant.") (emphasis added). Contrary to the government's argument, this intrusion goes far beyond mere use of a flashlight or binoculars from a location where an officer has a lawful right of access

Permalink 07:30:08 am, by fourth, 327 words, 554 views   English (US)
Categories: General

CA11: Probation search of home must be based on RS

Under Knights, a probation search of defendant's home need only be justified by reasonable suspicion. United States v. Carter, 566 F.3d 970 (11th Cir. 2009):

Unlike the defendants in Yuknavich and Knights, Carter was on probation for both a violent felony and a drug-related felony. As the Knights Court noted, the government's interest in monitoring a probationer stems from a probationer's propensity to commit more crimes, as well as a probationer's motivation to hide the evidence of his crimes. In this case, where the probationer has a history of drug and violence-related felonies, the government's interest in monitoring the probationer is particularly high. See, e.g., U.S.S.G. § 4B1.1(a) (providing enhanced penalties for criminals with history of drug felonies or crime of violence felonies).

Officers invited into defendant's house could follow defendant to get his shirt and shoes and conduct a protective sweep of that area. United States v. Wright, 2009 U.S. App. LEXIS 8727 (11th Cir. April 24, 2009) (unpublished):

Wright voluntarily consented to allow officers to enter his house in order for him to retrieve his shirt and shoes thus providing the officers with a legal right to be in the kitchen. The purpose of the protective sweep of Wright's kitchen was to secure it and investigate the officers' reasonable suspicion of danger. They knew that Wright had previously kept weapons in his home and that Tolbert was in the house. The sweep did not last longer than necessary to dispel the reasonable suspicion of danger and obtain Wright's clothing.

Officers had reasonable suspicion based on corroborated informant's information that he had a gun. [Court discusses all the information they have and how it all fit together.] United States v. Hicks, 2009 U.S. Dist. LEXIS 34860 (E.D. Wis. April 24, 2009).*

Defendant was asked about guns in bedroom, and she must have understood that she was consenting to look for weapons. Looking in a drawer was not unreasonable. United States v. Reynolds, 2009 U.S. Dist. LEXIS 35136 (D. Me. April 21, 2009).*

04/29/09

Permalink 01:57:34 pm, by fourth, 107 words, 378 views   English (US)
Categories: General

US AOC 2008 wiretap report online

The U.S. AOC wiretap report is online here. Wiretaps are not cheap: pdf page 11:

Table 5 provides a summary of expenses related to intercept orders in 2008. The expenditures noted reflect the cost of installing intercept devices and monitoring communications for the 1,703 authorizations for which reports included cost data. The average cost of intercept devices installed in 2008 was $47,624, down 2 percent from the average cost in 2007. For federal wiretaps for which expenses were reported in 2008, the average cost was $70,536, a 7 percent increase from the average cost in 2007. The average cost of a state wiretap declined 6 percent to $41,154 in 2008.

Convictions from wiretaps are a near certainty, but not all defendants.

Permalink 08:18:11 am, by fourth, 345 words, 385 views   English (US)
Categories: General

CA2: Locked out girlfriend could still consent to an entry

Defendant locked his girlfriend out of their place and took her key, but her stuff was inside. She still had apparent authority to consent to search. United States v. McGee, 2009 U.S. App. LEXIS 8698 (2d Cir. April 24, 2009).

Smell of marijuana alone, without a showing that the officer is trained to recognize it, is not probable cause. State v. Birdsong, 2009 Ohio 1859, 2009 Ohio App. LEXIS 1576 (5th Dist. April 20, 2009).

Police had information that defendant probationer had a machine gun, and that justified a probation search. Townes v. State, 2009 Tex. App. LEXIS 2727 (Tex. App. — San Antonio April 22, 2009).*

In the L.A. skid row Terry stop case, the plaintiffs' attorneys were awarded attorney's fees. Fitzgerald v. City of Los Angeles, 2009 U.S. Dist. LEXIS 34803 (C.D. Cal. April 7, 2009).*

Defendant's Fourth Amendment claim rejected on direct appeal could not be addressed in a § 2255. Newsome v. United States, 2008 U.S. Dist. LEXIS 108523 (S.D. Ga. August 22, 2008).*

The trial court erroneously applied the community caretaking function to the entry at issue, but defendant's consent was a possible resolution, and the case was remanded for consideration of that issue. State v. Snyder, 227 Ore. App. 544, 206 P.3d 1083 (2009).

District court did not clearly err in finding defendant consented even though handcuffed at gunpoint. United States v. Perez-Ruiz, 2009 U.S. App. LEXIS 8810 (8th Cir. April 27, 2009) (unpublished):

While officers approached the truck with weapons drawn, removed Zamora's child from the area, and handcuffed Perez-Ruiz and Zamora, these actions do not preclude a finding of voluntariness. United States v. Comstock, 531 F.3d 667, 677 (8th Cir. 2008) (finding that the use of handcuffs is not determinative of the voluntariness of consent); see United States v. Smith, 973 F.2d 1374, 1375 (8th Cir. 1992) (holding that a search was not coerced when officers entered the premises with their guns drawn); United States v. Lee, 886 F.2d 998, 1001 (8th Cir. 1989) (relying on a magistrate's credibility determination that woman's consent was not based on fear that her children would be taken from her). We conclude that the district court considered the totality of the circumstances and did not clearly err in determining that Zamora voluntarily consented to both searches.

Permalink 07:11:31 am, by fourth, 130 words, 395 views   English (US)
Categories: General

News: CIs at large in Philly

Philadelphia Daily News: Narc supervisors repeatedly ignored procedures for issuing search warrants
:

RED FLAGS were everywhere. Something wasn't right.

Search-warrant applications read like form letters. A confidential informant made drug buys across the city, sometimes just minutes apart, defying the laws of physics. And narcotics officers worked alone with their informants, violating a Police Department rule.

Yet police brass apparently failed to notice.

Again and again, supervisors in the Philadelphia Police Narcotics Field Unit signed off on cookie-cutter applications for search warrants, which are now the subject of an expanding FBI and police Internal Affairs Bureau investigation.

"I think supervisors dropped the ball," said David Rudovsky, a prominent civil-rights attorney who specializes in police misconduct cases.

From PoliceOne.com and the Philadelphia Inquirer: Philly police reliance on informants has risks.

04/28/09

Permalink 09:54:31 am, by fourth, 400 words, 535 views   English (US)
Categories: General

FL5: Officer entering home returning child left at day care not reasonable, no matter how well intentioned

After a six year old child was not picked up at day care and the parents did not respond to telephone calls, a deputy picked up the child and drove him home. The child let himself in and nobody responded to shouts. The master bedroom door was locked, but easily unlocked, and the deputy went in figuring foul play. Inside, there was no one, but cocaine was seen. The defendant child's father showed up and was arrested for the cocaine. The entry, no matter how well intentioned was not justified by exigent circumstances. Ortiz v. State, 2009 Fla. App. LEXIS 3460 (Fla. App. 5DCA April 24, 2009):

The State maintains, and the dissent agrees, that Fourth Amendment jurisprudence, and Riggs [Riggs v. State, 918 So. 2d 274 (Fla. 2005)], in particular, support the trial court's conclusion that the deputy acted reasonably in entering Ortiz's home without a warrant. However, unlike in Riggs, here, the State offered no evidence to demonstrate a reasonable belief that the child's parents were: (a) inside the house and (b) might be in need of medical attention. When the deputy and child arrived at the house, there were no indications of foul play and no car in the driveway. The deputy testified that he only became concerned for the well-being of the child's parents after he entered the house and found the locked master bedroom. The evidence in this case simply does not rise to the level found in Riggs.

The conclusion that the State did not establish that exigent circumstances existed justifying the warrantless entry into the residence does not detract from the trial court's finding that the deputy's actions were well intended to safely return the child to his family. However, "good intentions" do not control a determination of whether exigent circumstances exist to justify law enforcement's warrantless entry into a home. The test for such a determination is an objective one, not a subjective one. See Rolling v. State, 695 So. 2d 278, 293-94 (Fla. 1997) (holding that to permit warrantless entry into home in emergency, objectively reasonable circumstances must exist that provide basis for officer to believe there is immediate need for police assistance for protection of life). Here, with no reasonable basis to believe the parents were in the home, let alone in need of assistance, there was no exigency demonstrated justifying the entry.

Update:

Different result on rehearing en banc: Ortiz v. State, 24 So. 3d 596 (Fla. App. 5th DCA 2009), posted here.

Permalink 09:49:38 am, by fourth, 120 words, 474 views   English (US)
Categories: General

NE: Foster homes not pervasively regulated businesses

Observation of hand-to-hand drug deal was probable cause for defendant's stop and arrest. State v. Pearson, 2009 Tenn. Crim. App. LEXIS 275 (April 6, 2009).*

A tag light is not required in Tennessee, so a stop for not having the license plate illuminated is without justification. State v. Hunt, 2009 Tenn. Crim. App. LEXIS 300 (April 17, 2009).*

Foster care homes are not pervasively regulated businesses in Nebraska. Instead, they are subject to the special needs exception. Omni Behavioral Health v. Neb. Foster Care Review Bd., 277 Neb. 641, 764 N.W.2d 398 (2009).

"Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation which the officer believed to have occurred." White v. State, 2009 Ark. LEXIS 135 (April 23, 2009).*

04/27/09

Permalink 09:57:24 am, by fourth, 465 words, 415 views   English (US)
Categories: General

CA4: Putting a key into a lock just to see if it fits is reasonable

Taking a key from defendant and inserting it in a lock to determine whether it worked, without entering, was reasonable. Whether it is a search did not have to be decided. United States v. Daniels, 2009 U.S. App. LEXIS 8501 (4th Cir. April 21, 2009) (unpublished):

Among the items seized from Daniels on the night of March 3, 2005, was a key which the officers had reason to believe could access Apartment 106 of 1305 Kelston Place. (J.A. 749.) While Daniels originally consented to the detectives' use of the key to access the residence, he ultimately revoked his consent. (J.A. 173, 749.) Later the officers inserted the key into the door lock of Apartment 106, which was accessible to the public. The officers turned the key to confirm that it operated the lock but did not enter the apartment. (J.A. 136.) Daniels argues that the detectives' conduct in inserting the key into the lock constituted an unreasonable warrantless search in violation of his Fourth Amendment rights.

Our sister circuits are not in accord on whether a defendant has a reasonable expectation of privacy in an external door lock accessible from a public space. The First and Sixth Circuits have ruled that there is no reasonable expectation of privacy in such a lock and that the insertion and turning of a key therein does not constitute a search. See United States v. Salgado, 250 F.3d 438, 456-57 (6th Cir. 2001); United States v. Lyons, 898 F.2d 210, 213 (1st Cir. 1990). The Seventh Circuit, on the other hand, has concluded that there is a reasonable expectation of privacy in a keyhole because a keyhole contains information that is not readily accessible to strangers. United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991).

We need not rule on the precise issue of whether the officers' insertion and turning of a key into the door lock of Apartment 106 contravened the Fourth Amendment, because even if we assume that it was a search, it was not unreasonable. The officers' action was a means of identifying the apartment as one to which the defendant had access. The officers employed a legitimate crime investigative procedure that far outweighed whatever minimal intrusion that Daniels may have experienced. In this respect, the act is similar to the use of a narcotic detection dog to "sniff" personal luggage--a non-intrusive procedure that has been deemed constitutional. United States v. Place, 462 U.S. 696, 706-07, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). Indeed, we are aware of no precedent that has determined such conduct to be unreasonable, for as the Seventh Circuit observed in Concepcion, "the privacy interest [in a keyhole] is so small that the officers do not need probable cause to inspect it." Id. at 1173. We therefore affirm the district court's finding that Daniels' Fourth Amendment rights were not infringed by the officers' use of a key in the door lock of Apartment 106.

Permalink 09:46:35 am, by fourth, 423 words, 574 views   English (US)
Categories: General

CA11: Bahamian wiretap not subject to Fourth Amendment

Bahamian wiretap used in the U.S. was not a violation of the Fourth Amendment, and there would be no exclusion here. United States v. Emmanuel, 565 F.3d 1324 (11th Cir. 2009):

Next, Emmanuel argues that the second exception applies to this case because "the Bahamian officials did, in fact, act as agents of the United States in a joint venture to interdict this [sic] narcotics." (Appellant's Br. at 32). But this exception is based on a defendant's Fourth Amendment rights. Emmanuel cannot show that he is entitled to the protections of the Fourth Amendment. In United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), the Supreme Court held that the Fourth Amendment does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. Aliens do enjoy certain constitutional rights, but not the protection of the Fourth Amendment if they have "no previous significant voluntary connection with the United States …." Id. at 271. Here, Emmanuel was a citizen and resident of the Bahamas with no significant voluntary attachment to the United States. And the wiretapped telephones were located in the Bahamas. Emmanuel's participation in a drug trafficking conspiracy directed at importing drugs into the United States does not mean that he was part of the "national community" protected by the Fourth Amendment. Id. at 265. Indeed, he was entirely outside of that community. "Under these circumstances, the Fourth Amendment has no application." Id. at 275. Because the Fourth Amendment does not apply to nonresident aliens whose property is searched in a foreign country, there is no need to decide whether the Bahamian officials acted as agents of the United States or whether the wiretap was a joint venture. The Fourth Amendment exclusionary rule simply is not available to Emmanuel with respect to the Bahamian wiretap evidence.

Officers responding to a shoot-out call found AK-47 casings and bullet holes and a report that the shooter had fled to a specific place. That was exigency for an entry and protective sweep. Consent after the protective sweep was voluntary. United States v. Walton, 323 Fed. Appx. 837 (11th Cir. 2009) (unpublished).*

Officers in an unmarked car who parked next to defendant's car and got out did not show weapons or even identify themselves as officers such that defendant would be subjected to a stop. No reasonable person could believe he was subjected to a stop. After they saw a gun in the car, that led to the stop. United States v. Graham, 323 Fed. Appx. 793 (11th Cir. 2009) (unpublished).*

Permalink 09:15:56 am, by fourth, 580 words, 1608 views   English (US)
Categories: General

CA5: Fourth Amendment seizure v. Fifth Amendment taking

In a case involving a "rolling beachfront easement" after Hurricane Rita in Texas and whether beach erosion and state action afterward resulted in, inter alia, a Fourth Amendment seizure, the Fifth Circuit certifies the issue to the Texas state courts. The court finds the seizure issue ripe and present, but impossible to resolve under state law. Also, Fourth Amendment seizure and Fifth Amendment takings claims can be different things. Severance v. Patterson, 566 F.3d 490 (5th Cir. 2009):

The Officials preliminarily contend that any Fourth Amendment claim here is fully subsumed by Severance's takings claim and is therefore not separately cognizable. We reject this contention. The Fourth Amendment applies to civil as well as criminal seizures, Freeman v. City of Dallas, 242 F.3d 642, 647 n.5 (5th Cir. 2001) (en banc), and the Supreme Court holds that an interference with individual property rights may be found to breach more than one provision of the Constitution. United States v. James Daniel Good Real Property, 510 U.S. 43, 49-50, 114 S. Ct. 492, 499 (1993). The Court has not specifically ruled that separate claims for constitutionally unreasonable seizure and taking of property may coexist, but the Fourth Circuit has so held. Presley v. City of Charlottesville, 464 F.3d 480, 487 (4th Cir. 2006). Further, this court has ruled more than once that substantive due process, procedural due process, equal protection and takings claims may be implicated simultaneously in various types of governmental actions that interfere with individual property rights. Simi Inv. Co. v. Harris County, 236 F.3d 240, 248-49 (5th Cir. 2000); John Corp. v. City of Houston, 214 F.3d 573, 584-85 (5th Cir. 2000). This court cautioned that substantive due process is not the "appropriate avenue of relief" for most landowner complaints, and that, with rare exceptions, takings clause "jurisprudence cannot be circumvented by artful pleading of substantive due process claims." Simi Inv. Co. v. Harris County, 256 F.3d 323 (5th Cir. 2001) (per curiam), denying reh'g to 236 F.3d 240 (5th Cir. 2000). The reason for such expressed caution must be that a specific constitutional protection ought generally to control over claims made under the rubric of substantive due process. The Fourth and Fifth Amendments, however, both provide specific constitutional commands. That they may have evolved through caselaw to overlap in providing remedies for some deprivations of property interests does not authorize this court to fail to apply one or the other provision. Indeed, as Presley noted, the elements of a violation of the two amendments differ, with the touchstone of a takings claim being lack of just compensation and that of a seizure claim being its unreasonableness. 464 F.3d at 485. Further, § 1983 authorizes different damage measures for the claims.

The case produced this post on howappealing.com on April 24th:

Dissenting Fifth Circuit judge accuses Pacific Legal Foundation of tilting at windmills in a "thinly veiled Libertarian crusade" aimed at overturning state laws that arguably infringe on private property rights: From the start of his dissenting opinion issued yesterday (at page 22 of the PDF file), it appears that Circuit Judge Jacques L. Wiener, Jr. takes a dim view of the litigation strategy that the Pacific Legal Foundation is employing in challenging a Texas law known as the Open Beaches Act.

But the PLF appears to have the last laugh at this juncture, as the majority -- in an opinion by Chief Judge Edith H. Jones -- has reinstated one key aspect of the PLF-sponsored lawsuit in order to certify a question to the Supreme Court of Texas.

And this post on Volokh Conspiracy the same day: "Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights."

04/26/09

Permalink 10:47:37 pm, by fourth, 164 words, 331 views   English (US)
Categories: General

N.D. W.Va.: Six week old information in a grow case not stale

GPS signal from bank robbery bait pack led police to stop a bus with the defendant on it, and it was reasonable under the Fourth Amendment. United States v. Kelly, 2009 U.S. Dist. LEXIS 34191 (D. Minn. April 14, 2009).*

Six week old information in a marijuana grow case was not stale. United States v. Springer, 2009 U.S. Dist. LEXIS 34121 (N.D. W.Va. April 20, 2009).*

Court concludes that defendant's witnesses that defendant did not sufficiently understand English to consent to a search were not believable because of their admitted prior lies and criminal records. United States v. De La Torre, 2009 U.S. Dist. LEXIS 33437 (N.D. Okla. April 20, 2009),*

Administrative health warrant to determine whether plaintiff's home was habitable was properly issued and with probable cause. Eisenberg v. Wall, 607 F. Supp. 2d 248 (D. Mass. 2009).*

Apparent hand-to-hand drug transactions in a high crime area was sufficient to his detention. That led to information which justified his arrest for reentering after removal. United States v. Lopez-Garcia, 565 F.3d 1306 (11th Cir. 2009).*

Permalink 10:21:29 pm, by fourth, 455 words, 425 views   English (US)
Categories: General

N.D. Ill.: Threat to get SW had a reasonable basis

Consent obtained after threat to get a search warrant was still voluntary where there was a basis for concluding there was probable cause. United States v. Chavez, 2009 U.S. Dist. LEXIS 34217 (N.D. Ill. April 23, 2009):

. . . To determine whether a "threat" to obtain a search warrant is baseless, the reviewing court is not, contrary to Chavez's assertions, required to determine whether probable cause actually existed at the time of the consent. Rather, in order to "know whether the statement was baseless or not," the court must determine "whether there was probable cause (or a reasonable factual basis to believe there was probable cause)." United States v. Hicks, 539 F.3d 566, 571 (7th Cir. 2008) (emphasis supplied). The court announced this standard to avoid a situation where the officer seeking consent relies solely on the representations of another officer that probable cause is present, thus creating a "clean heart, empty head" loophole where the individual officer acts with a good faith belief that probable cause exists even where it does not. Id. at 572. Hicks holds that the officer seeking consent must have more than a good faith belief that he would obtain a search warrant; instead, he must have a reasonable factual basis to believe that probable cause exists--a standard more stringent than mere good faith, but less stringent than a determination that probable cause in fact existed. See id. So while the court has little trouble concluding that Agent Wood honestly believed that he could obtain a search warrant for Chavez's residence, the court must also determine whether a reasonable factual basis existed that would support Wood's honest belief.

The court concludes that such a reasonable factual basis existed. ...

Defendant's presence in a high-crime area, his known gang affiliation, past criminal conduct, proclivity to carry a firearm, and probationary status were sufficient in totality to establish the reasonable suspicion. CI was discounted. When confronted by the officers, defendant's hand was thrust into his pocket and that justified his patdown. United States v. Samnang Am, 564 F.3d 25 (1st Cir. 2009).*

Officer had reasonable supsicion for a patdown: "Camacho's unusual positioning of his hands in front of his waist in an apparent attempt to shield his groin area could have reasonably been interpreted by an officer with Sousa's experience as a defensive posture foreshadowing an armed attack." "I conclude that suppression of the gun is neither called for nor appropriate. I do so for the following reason. The gun was seized only after Camacho shoved Sousa and only after the officers succeeded in wrestling Camacho to the ground and placing him under arrest. The acts of shoving Officer Sousa and resisting arrest were intervening crimes giving the officers independent grounds to arrest Camacho." United States v. Camacho, 608 F. Supp. 2d 178 (D. Mass. 2009).*

04/25/09

Permalink 07:33:44 pm, by fourth, 296 words, 638 views   English (US)
Categories: General

New law review article: "Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard"

A thoughtful article about the Supreme Court's "seizure" doctrine, so much a part of the all encompassing reasonable suspicion standard, by David K. Kessler is Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard, 99 J. Crim. L. & Criminology 51 (2009). From the summary:

Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The U.S. Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt “free to leave” or otherwise to terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only upon their own beliefs about when a reasonable person would feel free to leave. But both the Court and scholars have noted that although empirical evidence about whether people actually feel free to leave would help guide the seizure inquiry, no such evidence presently exists. This Article presents the first empirical study of whether people would actually feel free to leave in two situations in which the Court has held that people would: on public sidewalks and on buses. Drawing on a survey of 406 randomly selected Boston residents, this Article concludes that people would not feel free to end their encounters with the police. Under the Court’s current standard, respondents would be seized within the meaning of the Fourth Amendment in both scenarios. The data also show that knowledge of one’s legal right to end the encounter with the police would not make people feel free to leave, and that women and people under twenty-five would feel less free to leave than would men and people over twenty-five. This initial empirical evidence suggests the need to rethink the current seizure standard.

Permalink 09:05:45 am, by fourth, 453 words, 869 views   English (US)
Categories: General

E.D. Mich.: 404(b) evidence subject to exclusionary rule

The Eastern District of Michigan concludes that the Sixth Circuit will hold that 404(b) evidence is subject to exclusion. The court determines, however, that it was legally seized. United States v. Campbell, 2009 U.S. Dist. LEXIS 33331 (E.D. Mich. April 20, 2009). On the 404(b) applicability, the court surveys many cases:

The Court's independent research has not revealed any cases addressing the issue in the context of Miranda violations. However, several courts have addressed the question of whether the Fourth Amendment's exclusionary rule applies to 404(b) evidence and all of those courts agree that it does, at least under certain circumstances. See e.g., United States v. Hill, 60 F.3d 672 (10th Cir.), cert. denied, 516 U.S. 970, 116 S. Ct. 432, 133 L. Ed. 2d 347 (1995); United States v. Hill, 898 F. 2d 72 (7th Cir. 1990); United States v. Lopez-Martinez, 725 F.2d 471 (9th Cir.), 469 U.S. 837, 105 S. Ct. 134, 83 L. Ed. 2d 74, (1984); United States v. Renteria, 625 F.2d 1279 (5th Cir. 1980); United States v. Knight, 185 F. Supp. 2d 65 (D.D.C. 2002); United States v. Ozuna, 129 F. Supp. 2d 1345 (S.D. Fla. 2001), aff'd, 48 Fed. Appx. 739 (11th Cir. 2002); United States v. Perez, 562 F. Supp. 574 (D.N.J. 1982). It does not appear that the Sixth Circuit has addressed this issue.

. . .

Thus, the Tenth Circuit concluded that in cases involving constitutional challenges to Rule 404(b) evidence, courts should conduct a two-step inquiry: "admitting the evidence only if it both meets the technical requirements of Rule 404(b) and was not obtained in violation of the defendant's Fourth Amendment rights." [Hill]

. . .

From these authorities, it would appear that a case-by-case approach should be taken in determining whether the exclusionary rule applies to 404(b) evidence of a prior arrest. Unlike the Tenth Circuit Hill case, here the evidence is not being offered to prove an element of the crime. Nor is there any evidence of collusion or bad faith on the part of the officers. There is, in fact, no evidence to suggest that the officers involved in the August 1 stop had any involvement whatsoever with any of the undercover narcotics transactions involving Defendant and Agent Jury. On the other hand, the August 1 arrest here was not too remote in time -- it occurred only four months prior to the December 6 drug deal -- nor were the August 1 and December 6 crimes too distinct in character. Thus, the Court cannot say that the nexus would be too attenuated to warrant application of the exclusionary rule. Therefore, the Court will take the approach of the Seventh Circuit and determine whether the evidence of the prior arrest both meets the requisites of Rule 404(b) and passes constitutional muster. This Opinion and Order addresses the constitutional issues.

[I looked for a free link to this opinion, but PACER may be down for maintenance in this court today.]

Permalink 08:52:29 am, by fourth, 365 words, 663 views   English (US)
Categories: General

E.D.Va.: Soldier has no REP in his electronic gear on arrival at a new base, per military policy

On a military base, a soldier had been transferred for processing for release for medical reasons. Under standard military protocol, all electronic devices were searched for contraband, including pornography, and two images of child pornography were found on an MP3 player. The service member had no reasonable expectation of privacy in his MP3 player on a military base. United States v. Rendon, 2009 U.S. Dist. LEXIS 33557 (E.D. Va. April 21, 2009):

Applying this standard here, the Court believes that military society would not recognize a legitimate expectation of privacy in the contents of a portable electronic device brought by a service-member onto a military base, which is examined for contraband during routine in-processing procedures. First, because of the unique demands of military life, soldiers on military bases have diminished privacy expectations. Henson, 27 Fed. Cl. at 593. This is particularly true when a soldier is entering a military base. The Court of Military Appeals has observed that an entry gate at a base is the functional equivalent of a border for Fourth Amendment purposes. See United States v. Stringer, 37 M.J. 120, 126 (C.M.A. 1993). In some ways, the inspection of a soldier's possessions when he arrives on a base is not unlike a border search. The Fourth Circuit has observed that "extensive searches at the border are permitted, even if the same search elsewhere would not be." United States v. Ickes, 393 F.3d 501, 502 (4th Cir. 2005). "'The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border."' Id. at 505 (quoting United States v. Flores-Montano, 124 S. Ct. 1582, 1585 (2004)). Similarly, the military has an interest in preventing the entry of contraband material onto bases and into barracks. At entry points to military installations, more intrusive inspection procedures are warranted because the base command must be able to control its borders and prevent contraband from being imported. See Stringer, 37 M.J. at 126. For this to be effective, the military must be able to inspect items that might contain contraband before soldiers enter the barracks.

Given this legal backdrop, from an objective standpoint, a soldier cannot reasonably expect that his personal items will be shielded from examination incident to his arrival at a military base. ...

Permalink 08:29:48 am, by fourth, 590 words, 799 views   English (US)
Categories: General

CA11: 21 day delay in getting SW for computer search was unreasonable; a seizure lawful at its inception can become unreasonable

The Eleventh Circuit held that a 21 day delay in getting a search warrant for a computer hard drive was unreasonable, and suppressed child pornography found on the hard drive. Entering the CPU was not a search, but it was a violation of a possessory interest. United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009):

While the disassembling of the CPU did not constitute a search of a container in which Mitchell had a reasonable expectation of privacy, it did constitute an interference with his possessory interest. So too would the seizure of the entire computer to ensure that the hard drive was not tampered with before a warrant was obtained. Yet Mitchell correctly concedes that such a seizure would not have violated the Warrant Clause. Texas v. Brown, 460 U.S. 730, 749-50, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (Stevens, J., concurring); United States v. Jacobsen, 466 U.S. 109, 121, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); United States v. Martin, 157 F.3d 46, 53 (2d Cir. 1998); see also United States v. Hernandez-Cano, 808 F.2d 779, 782 (11th Cir. 1987). Under these circumstances, to borrow a phrase from the Supreme Court in an analogous case, which would have been "the 'greater' and which the 'lesser' intrusion is itself a debatable question." Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970).

But while the initial seizure of the hard drive was permissible, even "a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment's prohibition on 'unreasonable searches.'" Jacobsen, 466 U.S. at 124. Thus, "even a seizure based on probable cause is unconstitutional if the police act with unreasonable delay in securing a warrant." Martin, 157 F.3d at 54; see also United States v. Respress, 9 F.3d 483, 488 (6th Cir. 1993) ("even with the existence of probable cause to effect a seizure, the duration of the seizure pending the issuance of a search warrant must still be reasonable."). The reasonableness of the delay is determined "in light of all the facts and circumstances," and "on a case-by-case basis." Mayomi v. United States, 873 F.2d 1049, 1054 n.6 (7th Cir. 1989). "[T]he reasonableness determination will reflect a 'careful balancing of governmental and private interests." Soldal v. Cook County, 506 U.S. 56, 71, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992); see also United States v. Prevo, 435 F.3d 1343, 1345 (11th Cir. 2006).

Computers are relied upon heavily for personal and business use. Individuals may store personal letters, e-mails, financial information, passwords, family photos, and countless other items of a personal nature in electronic form on their computer hard drives. Thus, the detention of the hard drive for over three weeks before a warrant was sought constitutes a significant interference with Mitchell's possessory interest. Nor was that interference eliminated by admissions Mitchell made that provided probable cause for the seizure. As the United States magistrate judge observed: "A defendant's possessory interest in his computer is diminished but not altogether eliminated by such an admission for two reasons: (1) a home computer's hard drive is likely to contain other, non-contraband information of exceptional value to its owner, and (2) until an agent examines the hard drive's contents, he cannot be certain that it actually contains child pornography, for a defendant who admits that his computer contains such images could be lying, factually mistaken, or wrong as a matter of law (by assuming that some image on the computer is unlawful when in fact it is not)." United States v. Mitchell, CR407-126, 2007 U.S. Dist. LEXIS 74349, 2007 WL 2915889, at *7 (S.D. Ga. 2007).

While the possessory interest at stake here was substantial, there was no compelling justification for the delay. ...

04/24/09

Permalink 05:06:59 pm, by fourth, 198 words, 566 views   English (US)
Categories: General

NC: Hot pursuit on a PV warrant justified warrantless entry

Hot pursuit justified officers' entry into a mobile home after defendant for whom officers had a PV warrant. State v. Fuller, 196 N.C. App. 412, 674 S.E.2d 824 (2009).*

Tennessee law does not explicitly require a license plate light, so a stop for not having one in working order was without reasonable suspicion. Stop suppressed. State v. Hunt, 302 S.W.3d 859 (Tenn. Crim. App. 2009).*

The state proved that exigent circumstances existed by a call for aid. The mere fact a knock was not answered is not exigent circumstances, but the facts known to the officers at the time were sufficiently exigent to justify an entry without a warrant. Montgomery v. State, 904 N.E.2d 374 (Ind. App. 2009).*

Reviewing the U.S. Magistrate Judge's R&R de novo, the District Judge concludes that officers in fact had a reasonable suspicion to detain defendant based on the CI's information. United States v. Singleton, 608 F. Supp. 2d 397 (W.D. N.Y. 2009)*, prior post of USMJ's rejected R&R here.

Ten month old information in a child porn case was not stale. The Third Circuit has upheld three year old information. United States v. Bogle, 2009 U.S. Dist. LEXIS 33310 (W.D. Pa. April 20, 2009).*

Permalink 04:26:47 pm, by fourth, 454 words, 504 views   English (US)
Categories: General

IN: Officer's testimony at suppression hearing undermined SW affidavit, so Herring and Leon did not apply

Suppression hearing testimony contradicted the showing of probable cause in the search warrant affidavit. This was sufficient to defeat the state's reliance on the good faith exception under Herring and Leon. Hayworth v. State, 904 N.E.2d 684 (Ind. App. 2009):

At issue in this case is the first exception, that is, a magistrate being misled by information in an affidavit. The United States Supreme Court clarified in Herring that to trigger the Fourth Amendment's exclusionary rule, the "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." 129 S. Ct. at 702. "[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or in some circumstances recurring or systemic negligence." Id. The pertinent analysis of deterrence and culpability is objective; it is not an inquiry into the subjective awareness of the officer. Id. at 703.

We conclude that Detective Southerland's admissions at the suppression hearing amount to deliberate, reckless, or grossly negligent conduct. Police officers have a duty and obligation of full and fair disclosure of all material facts when applying for a warrant. See Jaggers, 687 N.E.2d at 185 ("In applying Leon, our cases have stressed the importance of accurately presenting all relevant information to the magistrate.") (emphasis added); see also Dolliver v. State, 598 N.E.2d 525, 529 (Ind. 1992) (finding good faith exception did not apply where a detective "flagrantly misrepresented" the facts in obtaining a search warrant and therefore acted in "reckless disregard of the truth"). And when there is a material omission of fact, this amounts to deliberate, reckless, or grossly negligent conduct. Even the trial court said at the suppression hearing that Detective Southerland's affidavit made it seem like the informant had personally observed all of these things. Because the State did not follow up with Detective Southerland at the suppression hearing, we do not know from this record what, if anything, the informant personally observed. And as Hayworth points out in her reply brief, the State makes no effort on appeal to explain, reconcile, or justify the discrepancies between Detective Southerland's affidavit and what the informant actually told him.

In addition, we conclude that Detective Southerland's conduct is sufficiently deliberate that exclusion of the evidence will meaningfully deter the misconduct and that it is sufficiently culpable that such deterrence is worth the price paid by our justice system. Although, as the Herring Court said, the principal cost is "letting guilty and possibly dangerous defendants go free," 129 S. Ct. at 701, we find there is "appreciable" deterrence given the importance of a police officer's full and fair disclosure of all material facts when applying for a warrant and the material omissions of fact here. Id. at 700.

04/23/09

Permalink 08:15:30 am, by fourth, 425 words, 433 views   English (US)
Categories: General

N.D. Ohio: Moving defendant some for his patdown was justified and did not raise the stop to an arrest requiring PC

Defendant was followed by the police and when he was yelled at to stop, he reached to his waistband. He was finally handcuffed. Considering the nature of the place and the fact officers were unsure of who was around, they did not violate the Fourth Amendment by walking him to a safer location there for the actual patdown. United States v. Smith, 2009 U.S. Dist. LEXIS 33000 (N.D. Ohio March 31, 2009):

Moreover, the officers did not exceed their authority under Terry, transforming the temporary stop of Defendant Smith into a seizure incident to an arrest, by walking the Defendant downstairs and outside prior to patting him down. Courts have held that some movement of the suspect in the general vicinity of the Terry stop is permissible without converting what would otherwise be a temporary seizure into an arrest. See United States v. Montano-Gudino, 309 F.3d 501, 504 (8th Cir. 2002) (holding that the movement of the defendant from outside a storage facility into one of the rooms of the building constituted a proper temporary seizure); United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1085 (9th Cir. 2000) (concluding that moving a defendant a short distance to another room was part of a proper temporary seizure and holding that neither "handcuffing a suspect nor relocating a suspect automatically turns a detention into an arrest where these actions are reasonably taken for safety and security purposes"); United States v. Pino, 855 F.2d 357, 362 (6th Cir. 1988) (determining, in the context of a traffic stop -- a "species of investigative detention" under Terry -- that ordering an individual to move his car from the side of the highway to the interstate underpass was not "more intrusive than necessary to fulfill the purposes of the stop").

Defendant fled back into his apartment seeking to avoid arrest and officers heard a commotion inside. This justified a protective sweep, and the officers did not manufacture exigency for a protective sweep. [If anything, the defendant did.] United States v. Zadiriyev, 2009 U.S. Dist. LEXIS 33074 (S.D. N.Y. April 17, 2009).*

Defendant's patdown was justified because he refused to take his hand out of his pocket, and the odor of marijuana justified the search of the car. United States v. Bohanon, 629 F. Supp. 2d 803 (E.D. Tenn. 2009).*

Items to be seized were itemized in an attachment to the SW and affidavit, and the affiant was present for the search. There is no indication that the search exceeded the scope of the attachment, and there would be no suppression just for that. United States v. Russell, 2009 U.S. Dist. LEXIS 32947 (E.D. Ky. April 16, 2009).*

Permalink 07:27:14 am, by fourth, 152 words, 377 views   English (US)
Categories: General

CA9: Fire in burn barrel was exigent circumstance when defendant knew police were closing in

Defendant was found to have child pornography on his work computer, and the police had admissions that there would be some at home. While waiting for a search warrant, the police went to his house and saw a burn barrel in the backyard with a fire going. That was an exigent circumstance to enter without the warrant. United States v. Rodriguez, 2009 U.S. App. LEXIS 8158 (9th Cir. April 17, 2009) (unpublished).

Defendant argued his detention in somebody else's apartment was overlong, but the Ninth Circuit found that it was by consent and purged the taint, if it was overlong. At one point, the defendant actually left the apartment and came back, so how could it be a command to stay? United States v. Monroe, 2009 U.S. App. LEXIS 8214 (9th Cir. April 20, 2009) (unpublished).*

Defendant's vehicle search was with PC so it was valid. United States v. Murillo, 2009 U.S. App. LEXIS 8210 (9th Cir. April 20, 2009) (unpublished).*

04/22/09

Permalink 11:26:08 pm, by fourth, 594 words, 413 views   English (US)
Categories: General

W.D. Tex.: Request to Spain to search under MLAT did not make U.S. a joint venturer

The U.S. used the Mutual Legal Assistance Treaty (MLAT) between the U.S. and Spain in seeking to have Spain conduct a search under its law there. Spain took possession of the evidence. A year later, the evidence was reviewed by U.S. officials and resulted in charges in federal court in Texas. The U.S. officials were not sufficient instigators of the search in Spain to have participated in it. United States v. Adler, 2009 U.S. Dist. LEXIS 32583 (W.D. Tex. March 5, 2009):

Adler's case is distinguishable from Hawkins, Heller, Morrow, and Birdsell, in which American authorities merely informed foreign officials of potentially criminal activity that the foreign officials then chose to pursue. Adler points out that the American MLAT request detailed specific evidence to be seized by Spanish authorities and also directed them where to search, why such evidence was desired, and how to handle the evidence.

Adler cites cases holding that American authorities so substantially participated in foreign searches as to make them joint ventures subject to Fourth Amendment protection. See United States v. Peterson, 812 F.2d 486, 488-90 (9th Cir. 1987) (American agents termed their actions "joint investigation" and participated in daily decoding and translating of intercepted transmissions with Thai authorities); United States v. Hensel, 699 F.2d 18, 25 (1st Cir. 1983) ("joint venture" involved high-seas chase and search by American and Canadian vessels, Americans began chase, requested Canadian aid, urged Canadians to seize ship, showed firepower, provided backup and interpreters to Canadians, and participated in second search). Adler's case is distinguishable from Peterson and Hensel, as the level of American participation in each of those cases far surpasses American involvement here. The facts of this case therefore fall in the murky area between the limited American participation in Hawkins, Heller, Morrow, and Birdsell and the significant participation in Peterson and Hensel.

. . .

Overall, the Court finds Gomez-Castrillon's analysis more persuasive than that of Vilar. Although Adler's facts do not align precisely with those in Gomez-Castrillon, they are sufficiently similar for that court's holding--that an MLAT request does not make a complying foreign government an American agent--to be persuasive to this Court.

The record reflects that American authorities did not obtain the seized evidence until October 2002, a year after the search was conducted. At that time, American officials traveled to Spain to review the seized evidence and return to the United States with it. Although an FBI agent in Madrid was aware of the search, no American official was present at the search. Spanish officers recovered evidence that had not been requested by American authorities, such as the counterfeit Viagra for which Adler was prosecuted in Spain. Overall, the record shows Spanish officers chose how to implement the search, conducted it without American input besides the MLAT request, and benefitted from the fruits of the search.

The Court also notes the policy behind the exclusionary rule. The rule's purpose is to deter American officials from violating American constitutional principles; it does not apply to foreign searches because an American court's action is unlikely to affect the conduct of foreign authorities. Morrow, 537 F.2d at 139; see also Hensel, 699 F.2d at 25. Excluding evidence in this case would be unlikely to affect the conduct of Spanish officials in future Spanish searches, or even affect how the United States and Spain conduct future MLAT-related searches.

Having reviewed the record and the applicable law, The Court finds and concludes that American authorities did not participate in the October 11, 2001 search nor were Spanish officials acting as agents of the United States to the extent necessary to implicate the Fourth Amendment.

04/21/09

Permalink 04:28:36 pm, by fourth, 29 words, 387 views   English (US)
Categories: General

FBI on cellphone search incident

I saw this on a list serv from the FBI from February: Searching Cell Phones Seized Incident. This is a pretty good compendium on the law up until now.

Permalink 10:28:31 am, by fourth, 1065 words, 2270 views   English (US)
Categories: General

SCOTUS: Search incident for driving on a suspended license violates Fourth Amendment: Arizona v. Gant; Belton limited like it should be

In a rare win for logic, SCOTUS holds today in Arizona v. Gant, 2009 U.S. LEXIS 3120, 2009 WL 1045962 (5-4, not the usual suspects) that a search incident for driving on a suspended license is improper because there is no evidence to be secreted for that offense. Chimel, after 28 years, is finally returned to its roots. As I have argued repeatedly on this blog, and many times since Belton was decided, Belton is now limited to its facts and situation--search incident is no longer a license to search a car on the officer's whim, and there has to be possible evidence to be obtained. The Court wisely notes that Belton has been rejected by nine states on state constitutional grounds (Vermont, New Jersey, New Mexico, Nevada, Pennsylvania, New York, Oregon, and Wyoming) and statute (Massachusetts). Slip op. at 14 n. 8. The Court also notes the "checkered history" of search incident. Id. at 17.

Significantly, the Court also underscores that there is a privacy interest in vehicles after all:

For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, see New York v. Class, 475 U. S. 106, 112– 113 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles, 525 U. S., at 117. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

From the syllabus:

Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454—which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant’s lawful arrest—on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U. S. 752, requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant’s arrest implicated neither of those interests, the State Supreme Court found the search unreasonable.

Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18.

(a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357. The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763. This Court applied that exception to the automobile context in Belton, the holding of which rested in large part on the assumption that articles inside a vehicle’s passenger compartment are “generally ... within ‘the area into which an arrestee might reach.’” 453 U. S., at 460. Pp. 5–8.

(b) This Court rejects a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton v. United States, 541 U. S. 615, 632 (Scalia, J., concurring in judgment). Neither Chimel’s reaching-distance rule nor Thornton’s allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license—an offense for which police could not reasonably expect to find evidence in Gant’s car. Cf. Knowles v. Iowa, 525 U. S. 113, 118. The search in this case was therefore unreasonable. Pp. 8–11.

(c) This Court is unpersuaded by the State’s argument that its expansive reading of Belton correctly balances law enforcement interests with an arrestee’s limited privacy interest in his vehicle. The State seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton, together with this Court’s other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U. S. 103, and United States v. Ross, 456 U. S. 798, permit an officer to search a vehicle when safety or evidentiary concerns demand. Pp. 11–14.

(d) Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches. Pp. 15–18.

Opinion by Stevens, joined by Scalia, Souter, Thomas, and Ginsburg. Breyer, Roberts, Kennedy, and Alito dissented.

SCOTUSWiki here.

Permalink 07:57:47 am, by fourth, 342 words, 582 views   English (US)
Categories: General

WA: Entry without warrant to arrest for DUI was unreasonable without exigency

Defendant was suspected of having driven his vehicle on a bike path after a citizen's report. They found his car at his house and talked to him through the screen door, which he declined to open. They could smell alcohol. While he was likely under the influence, the entry to arrest without a warrant was unreasonable because there was no sufficient exigency to justify it, partly because his vehicle was disabled [which mitigates this ruling]. State v. Hinshaw, 205 P.3d 178 (Wash. App. April 16, 2009):

¶17 We disagree. The police here presented no evidence of a major crisis demanding immediate entry into Mr. Hinshaw's home. The record shows that police had probable cause to believe Mr. Hinshaw had become intoxicated and had driven home where he remained. The reckless operation of the car and consequent threat to public safety had ended. There was no suggestion that Mr. Hinshaw was armed or dangerous. He posed no threat, imminent or otherwise, to the safety of the officers or the public. His car was essentially disabled and police had last seen him on a bicycle. He was not fleeing or seeking to escape. Finally, the circumstances here did not involve violence or threats of violence. His offense had not harmed anyone, he had merely damaged property.

¶18 Furthermore, police failed to make any showing that destruction of evidence was imminent, or that the arresting officer could not have obtained a warrant before the alcohol dissipated. The evidence offered by the State consisted solely of Officer Lopez's testimony that, “Mr. Hinshaw admitted that he was drinking at a local establishment … I didn't want to lose the alcohol evidence.” CP at 46. He offered no evidence about the length of time necessary to obtain a warrant or the time required to secure the evidence. In short, police made no showing that a delay of any length would have resulted in the imminent destruction of evidence. Without evidence of some real immediate and serious consequence resulting from a delay in obtaining a warrant, the State failed to carry its burden to prove exigency.

Permalink 07:56:27 am, by fourth, 69 words, 433 views   English (US)
Categories: General

TX8: Parole violation arrest in car permitted inventory

Police officers lacked probable cause to enter defendant's motel room to gather evidence to seek a search warrant. State v. Triana, 2009 Tex. App. LEXIS 2557 (Tex. App. –- San Antonio April 15, 2009).*

Defendant's vehicle was seized because he was arrested on a parole violation warrant, and it was properly inventoried as a result. State v. Five Thousand Five Hundred Dollars in United States Currency, 296 S.W.3d 696 (Tex. App. -– El Paso April 16, 2009).*

Permalink 07:10:55 am, by fourth, 258 words, 384 views   English (US)
Categories: General

PA: While mom lacked actual authority, she had apparent authority on totality of the circumstances

An officer patrolling in a park ran the license number of a vehicle and concluded that the owner had a suspended license and a prior for drugs. When he got in the vehicle to drive off, the vehicle was stopped, and a drug dog was called in. The stop was justified, and the dog sniff was not improper. A dog sniff is like a plain view. State v. Hoppert, 2009 Ohio 1785, 181 Ohio App. 3d 787, 910 N.E.2d 1106 (8th Dist. 2009).*

Defendant who pled guilty before motion to suppress could have been filed cannot claim IAC against defense counsel. State v. Bishop, 2009 Ohio 1797, 2009 Ohio App. LEXIS 1519 (8th Dist. April 16, 2009).*

Police responded to a domestic disturbance call involving defendant firing a gun at a woman, officers went to where defendant stayed and where he ran to and talked to his mother, and she consented to a search. She lacked actual authority to consent to the search of her adult child's room, but she had apparent authority. "Based upon the totality of the circumstances, we conclude that the facts available to Officer Rattigan at the time of his search would lead a person of reasonable caution to believe that Nunley possessed apparent authority over the third floor. Nunley was Basking's mother, owned the residence, directed Officer Rattigan to the third floor, escorted Officer Rattigan to the third floor, and encouraged Officer Rattigan to search the third floor." A different standard does not apply under the state constitution (following three other states coming to the same conclusion). Commonwealth v. Basking, 2009 PA Super 67, 970 A.2d 1181 (2009).*

Permalink 06:06:41 am, by fourth, 172 words, 748 views   English (US)
Categories: General

Argument today in the school strip search case

The Supreme Court has oral argument today in Safford United School District #1 v. Redding, SCOTUSWiki here, in what must be the most reported case of the year. Search "Redding" on any major paper's website. See today's Washington Post, Sunday's NY Times, CNN.com, FoxNews.com, ABC News, CBS News, and MSNBC. On ABC today at 7:10 am ET, there already was a considerable line to get in for the argument.

Questions presented:

1. Whether the Fourth Amendment prohibits public school officials from conducting a search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.

2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public school administrator may be liable in a damages lawsuit under 42 U.S.C. § 1983 for conducting a search of a student suspected of possessing and distributing a prescription drug on campus.

See SCOTUSWiki for all you need to know about the case; more than I could possibly provide because I don't have 30 people maintaining a website.

04/20/09

Permalink 06:43:31 am, by fourth, 214 words, 336 views   English (US)
Categories: General

OH8: No "plain feel" in a lump in the pocket

Defendant mailed a letter out of jail which was intercepted by his girlfriend's mother, and she turned it over to the police. Before even getting to the private search issue, this is a matter of lack of standing: He had no REP in a letter in the hands of a third person. State v. Martinez, 221 Ariz. 383, 212 P.3d 75 (App. 2009).

Ohio statute on taking DNA from offenders is constitutional based on special needs. Wilson v. Wilkinson, 608 F. Supp. 2d 891 (S.D. Ohio 2009).*

Defendant was riding a bicycle in a drug area, and he was stopped talking to somebody in a car. He rode toward the police car, realized it was a police car, and pedaled away from it. The officers then stopped him. Without getting to reasonable suspicion, the "plain feel" of the frisk was violated because it was apparent it was not a weapon. State v. Henderson, 2009 Ohio 1795, 2009 Ohio App. LEXIS 1508 (8th Dist. April 16, 2009).*

A 911 call said that two men were in a truck flashing a gun. Officers arrived and told the men to hold their hands out the window. The passenger was fidgeting and moving furtively as to the console. Officers saw a gun out of the console, and the seizure was justified. State v. Faggs, 2009 Ohio 1758, 2009 Ohio App. LEXIS 1478 (5th Dist. April 8, 2009).*

Permalink 06:26:10 am, by fourth, 464 words, 1073 views   English (US)
Categories: General

CO explains that a passenger in a car can be asked for ID without any RS as to her

A passenger in a car can be asked for ID without any reasonable suspicion as to her. People v. Bowles, 226 P.3d 1125 (Colo. App. 2009):

Although under Brendlin Bowles was seized when she provided the false name, for the following two reasons we conclude that the officer lawfully could ask for her identification during the traffic stop without reasonable suspicion of criminal activity on her part.

First, because Brendlin did not address any aspect of police-passenger interaction other than the initial traffic stop, it leaves intact earlier Supreme Court rulings that police may request identification without reasonable suspicion. See, e.g., Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 185 (2004) ("In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment."); Florida v. Bostick, 501 U.S. 429, 434-35 (1991) ("[E]ven when officers have no basis for suspecting a particular individual, they may generally ... ask to examine the individual's identification ...." (citations omitted)); INS v. Delgado, 466 U.S. 210, 216 (1984) ("[I]nterrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.").

. . .

Second, even if such a request for identification is minimally intrusive, it can easily be justified, as recognized in three post-Brendlin decisions rejecting arguments like those raised by Bowles. See United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir. 2007) ("If an officer may 'as a matter of course' and in the interest of personal safety order a passenger physically to exit the vehicle, [then] he may surely take the minimally intrusive step of requesting passenger identification." (quoting Maryland v. Wilson, 519 U.S. 408, 410 (1997))), cert. denied, 128 S.Ct. 1221 (2008); United States v. Diaz-Castaneda, 494 F.3d 1146, 1152-53 (9th Cir. 2007) ("[P]olice may ask people who have legitimately been stopped for identification without conducting a [separate] Fourth Amendment search and seizure" to determine who the passengers are and whether any of them is capable of driving the car should the driver be arrested), cert. denied, 128 S.Ct. 634 (2007); People v. Harris, 886 N.E.2d 947, 962 (Ill. 2008) (Such a request "provid[es] a certain level of protection to both the officer and the driver of the vehicle" by "identify[ing] a potential witness to the traffic violation and to the officer's actions" during the stop).

Moreover, a passenger's response to such a request may be consensual, despite having been seized as a result of the traffic stop. See Harris, 886 N.E.2d at 963-64 (Fourth Amendment was not implicated because a reasonable passenger "would feel free to decline to provide his driver's license," "even upon realizing that the driver of the car in which he ha[d] been riding [was] about to be arrested," in that a request for identification is "facially innocuous" and does not cause the passenger "to feel intimidated or threatened."); ....

Permalink 06:00:06 am, by fourth, 275 words, 582 views   English (US)
Categories: General

D.Kan.: Traffic stop for lane drift unjustified when it was windy

Defendants were in a car that was identical to one the police were looking for. They ran the license number, realized it was somebody else's, and saw that the owner of that car was wanted for firearms violations and was missing. The stop was based on reasonable suspicion. United States v. Wallace, 2009 U.S. App. LEXIS 7832 (9th Cir. April 14, 2009) (unpublished).*

Defendant's co-occupant was arrested with him and they were separated. She was asked for consent, and it was obtained. The police had no duty to ask him first under Randolph. United States v. Brown, 563 F.3d 410 (9th Cir. 2009). (This is about the 50th opinion to say this. Too many read too much into Randolph.)

Defendant's traffic stop for drifting in his lane was unjustified because it was admittedly highly windy that day, and there was no showing of danger to another driver. After defendant's DL was given back and he was told he could go, he was reengaged in conversation and the officer detected nervousness to one question and ordered defendant out of the car. The stop and detention were unreasonable, and the motion to suppress is granted. United States v. Maldonado, 614 F. Supp. 2d 1179 (D. Kan. 2009).*

The government failed to show that a guest of another in a motel room had enough apparent authority to consent to a search of the room. He had a sufficient connection to the room to show a REP in the room, but that does not translate into apparent authority. Under Tenth Circuit authority, it was apparent that the officers had to inquire further as to apparent authority. United States v. Krehbiel, 2009 U.S. Dist. LEXIS 32235 (D. Utah April 16, 2009).*

04/19/09

Permalink 04:38:51 pm, by fourth, 254 words, 366 views   English (US)
Categories: General

NYT on DNA on arrest

Today's NY Times has an article about the growing number of jurisdictions that gather DNA from arrestees: F.B.I. and States Vastly Expand DNA Databases:

Law enforcement officials are vastly expanding their collection of DNA to include millions more people who have been arrested or detained but not yet convicted. The move, intended to help solve more crimes, is raising concerns about the privacy of petty offenders and people who are presumed innocent.

Until now, the federal government genetically tracked only convicts. But starting this month, the Federal Bureau of Investigation will join 15 states that collect DNA samples from those awaiting trial and will collect DNA from detained immigrants — the vanguard of a growing class of genetic registrants.

The F.B.I., with a DNA database of 6.7 million profiles, expects to accelerate its growth rate from 80,000 new entries a year to 1.2 million by 2012 — a 17-fold increase. F.B.I. officials say they expect DNA processing backlogs — which now stand at more than 500,000 cases — to increase.

Law enforcement officials say that expanding the DNA databanks to include legally innocent people will help solve more violent crimes. They point out that DNA has helped convict thousands of criminals and has exonerated more than 200 wrongfully convicted people.

But criminal justice experts cite Fourth Amendment privacy concerns and worry that the nation is becoming a genetic surveillance society.

There will be incessant challenges to DNA samples taken on arrest when the sample turns up solving a case, which effectively makes it harder to decide for the citizen.

Permalink 01:23:12 am, by fourth, 204 words, 456 views   English (US)
Categories: General

S.D. Iowa: Jaywalking not RS for a patdown

Defendant's jaywalking stop provided no reasonable suspicion he was armed, so his patdown is suppressed. United States v. West, 615 F. Supp. 2d 957 (S.D. Iowa 2009).

Defendant consented during a knock-and-talk, and the court finds that defendant understood English and was not coerced. United States v. Miranda-Villalobos, 2009 U.S. Dist. LEXIS 31814 (N.D. Okla. April 15, 2009).*

While the Seventh Circuit has not interpreted whether a parole search under Samson can be conducted by a law enforcement officer, since the Illinois courts have granted broad power to law enforcement officers for parole searches, it appears they would. United States v. Woodland, 607 F. Supp. 2d 904 (C.D. Ill. 2009).*

An officer came to defendant's door, and when the door was answered, the officer could smell marijuana, and he stuck his foot over the threshold to keep the door from shutting. He announced who he was, and a man made furtive movements on the couch. That justified the officer entering to prevent something bad from happening. State v. McGee, 2009 Tenn. Crim. App. LEXIS 252 (April 15, 2009).*

Officers had reasonable suspicion to stop and detain the defendant for robbery where he was specifically identified as a suspect and he matched the description of the robber. State v. Pittman, 2009 Tenn. Crim. App. LEXIS 255 (April 7, 2009).*

04/18/09

Permalink 07:10:40 am, by fourth, 169 words, 436 views   English (US)
Categories: General

Cal.1st: Search in underwear of parolee stopped outside motel was reasonable

Defendant parolee was stopped in a high crime area trying to enter a motel room through a window at night. The officers searched inside his underwear finding drugs. The underwear search of a parolee was not a strip search, and it was reasonable. People v. Smith, 172 Cal. App. 4th 1354, 92 Cal. Rptr. 3d 106 (1st Dist. 2009).

Defendant's questioning about a gun, albeit understandable, was factually different from Quarles because he had been in custody, so his statement is suppressed. United States v. Zamora, 2009 U.S. Dist. LEXIS 31379 (W.D. La. April 9, 2009).

Approaching a person in an auto theft investigation and asking his name was not unreasonable. This was not a planned investigation targeting her. After that, it was legitimate to run warrants on her, and a warrant found justified her detention. State v. Dawson, 205 P.3d 628 (Haw. App. April 8, 2009).

Michigan finds that the Tobacco Products Tax Act made tobacco control a pervasively regulated business subjecting sellers to records searches of acquisitions and sales. People v. Beydoun, 283 Mich. App. 314, 770 N.W.2d 54 (2009).

04/17/09

Permalink 06:18:17 am, by fourth, 518 words, 719 views   English (US)
Categories: General

MA: Automobile search required no warrant even though officers delayed arrest and search to catch another person

"[W]hen an automobile is stopped in a public place with probable cause, no more exigent circumstances are required by art. 14 [of the Massachusetts Declaration of Rights] beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle.' Commonwealth v. Motta, 424 Mass. 117, 124, 676 N.E.2d 795 (1997). In this case, we conclude that this principle applies even when the police had ample opportunity to obtain a search warrant, provided that there has been no unreasonable delay." Delaying an arrest so another person would be implicated and be subject to arrest was reasonable. Commonwealth v. Eggleston, 453 Mass. 554, 903 N.E.2d 1087 (2009).

General police knowledge of use of firearms in the vicinity is not reasonable suspicion as to this defendant who was seen in the area. There was nothing about the defendant that gave reasonable suspicion either, so the stop was unreasonable and suppressed. Commonwealth v. Gomes, 453 Mass. 506, 903 N.E.2d 567 (2009).*

A protective sweep of the house in this case was unjustified. An officer responded to a call about a suicidal woman, and he got to the scene and found her and a man outside. One thing led to another and the man got tasered by the officer while the woman was egging him on. By then, the defendant's brother was also on the scene, but there was nothing to indicate that there was another person in the house. Entering the house for a protective sweep that led to the discovery of evidence was unjustified. Brand v. State, 204 P.3d 383 (Alas. App. 2009).

Defendant was suspected of a murder of a child, and his DNA was taken in connection with that case, which was affirmed a week earlier. State v. Cope, 2009 S.C. App. LEXIS 94 (April 2, 2009). That DNA connected him to a burglary and attempted rape where he was stabbed with a screwdriver by the victim. The blood draw in the other case was usable here, and no additional search warrant or court order was required to compare it. State v. Sanders, 387 S.C. 608, 693 S.E.2d 409 (2009):

A blood sample validly obtained in connection with one crime may be used in a subsequent unrelated case. See State v. McCord, 349 S.C. 477, 484, 562 S.E.2d 689, 693 (Ct. App. 2002) (finding no improper search or seizure where defendant's blood, voluntarily submitted in an unrelated case, is used in a subsequent case); see also Washington v. State, 653 So.2d 362, 364 (Fla. 1994) ("[O]nce the samples were validly obtained, albeit in an unrelated case, the police were not restrained from using the samples as evidence in the murder case."); Bickley v. State, 227 Ga. App. 413, 489 S.E.2d 167, 169 (Ga. Ct. App. 1997) (holding the DNA evidence should not be "suppressed on the basis that additional testing of defendant's blood ... required an independent warrant"); Patterson v. State, 744 N.E.2d 945, 947 (Ind. Ct. App. 2001) ("[U]nder the facts of this case, society is not prepared to recognize as reasonable an individual's expectation of privacy in a blood sample lawfully obtained by police."); Wilson v. State, 132 Md. App. 510, 752 A.2d 1250, 1272 (Md. Ct. App. 2000) (holding Fourth Amendment claims are no longer applicable once a person's blood sample has been lawfully obtained).

04/16/09

Permalink 10:46:38 am, by fourth, 31 words, 314 views   English (US)
Categories: General

N.S.A. wiretaps "overcollected" domestic calls

The N.S.A. was found to have "overcollected" wiretapped domestic calls. See NYTimes.com Officials Say U.S. Wiretaps Exceeded Law.

"Overcollected." Newspeak for "we massively violated everybody's constitutional rights."

Permalink 06:51:31 am, by fourth, 311 words, 339 views   English (US)
Categories: General

IL: Telling defendant who was "window shopping" to remove his hands from his pockets was a seizure

The officer here approached the defendant who was "window shopping" and told him three times to remove his hands from his pockets, and, when he did, a gun fell to the ground. The defendant was commanded to comply, so it was a seizure under Mendenhall. People v. Jackson, 389 Ill. App. 3d 283, 329 Ill. Dec. 211, 906 N.E.2d 56 (2009).*

"[T]he narrow question before this court is whether a police officer, who has reasonable suspicion to believe that an individual was involved in a shooting that has just occurred, may conduct a limited protective search of the passenger compartment of a vehicle that the officer has just seen the individual get out of. We find that under those circumstances, consistent with Terry and Illinois law, a limited protective search of the passenger compartment of the vehicle for weapons is proper." People v. Johnson, 2009 Ill. App. LEXIS 199 (January 8, 2009).*

The state did not rely in the trial court on defendant being on parole and the search being justified as a parole search, so it could not rely on it on appeal. The stop and search was without justification. People v. Vasquez, 902 N.E.2d 1194 (Ill. App. February 11, 2009).*

There was probable cause for defendant's arrest when he gave an inculpatory statement. People v. Jackson, 391 Ill. App. 3d 11, 908 N.E.2d 72, 330 Ill. Dec. 220 (2009).*

Defendant's consent was valid. The consent form had the wrong street name but right number, and this was a mere scrivener's error because it was clear she was consenting to a search of her own apartment, not somebody else's. Beattie v. State, 903 N.E.2d 1050 (Ind. App. 2009).*

During a traffic stop, the officer asked the defendant if he would talk to a detective about another matter. He agreed, and he was handcuffed and transported. That was without justification and violated the Fourth Amendment and the state constitution. Taylor v. State, 904 N.E.2d 259 (Ind. App. 2009).*

Permalink 06:09:52 am, by fourth, 199 words, 368 views   English (US)
Categories: General

D.N.J.: Locked entry way and signs restricting entry to common area creates no REP

The defendant had no reasonable expectation of privacy in the common areas of his mother's apartment complex where he had an expectation of privacy in her apartment. "Contrary to Defendant's contention, the presence of a locked entryway and a sign on the door stating 'no visitors unless accompanied by a resident' does not demand a different result." United States v. Correa, 635 F. Supp. 2d 379 (D. N.J. 2009).*

Defendant charged with obtaining passport by a false statement in 2008 could not argue that his passport was unlawfully seized in 1998. Alleged unlawful seizure of the passport then was not relevant to the case now because the issue here was intent. United States v. Hack, 2009 U.S. Dist. LEXIS 30822 (C.D. Cal. March 27, 2009).*

District Court did not clearly err in finding that the defendant consented to the officer's entry. United States v. Eastom, 2009 U.S. App. LEXIS 7761 (10th Cir. April 10, 2009) (unpublished).*

Defendant's stop was with reasonable suspicion of a traffic offense, although it was a drug trafficking investigation. The CI told the police defendant hid drugs on his body, and defendant consented to a search of his sock which produced drugs. United States v. Borges, 2009 U.S. Dist. LEXIS 30790 (E.D. Wis. March 26, 2009).*

Permalink 05:50:44 am, by fourth, 413 words, 438 views   English (US)
Categories: General

E.D. Wash.: Motor home was subject to temporary seizure under McArthur

Defendant's search incident was valid without an independent showing of need for it, and court permitted him to preserve an argument that it might be invalid if Arizona v. Gant (argued October 7th) comes out favorably to him. The SI was for DUI. Also, defendant's motor home could be temporarily seized to protect against loss of evidence under McArthur on reasonable suspicion. United States v. Grote, 2009 U.S. Dist. LEXIS 30919 (E.D. Wash. March 26, 2009)*:

The officers did not need probable cause to temporarily "seize" the motor home, but only reasonable suspicion that Defendant was engaged in criminal activity and that evidence of the same could be found in the motor home. The temporary "seizure" of Defendant's motor home is treated like a Terry stop of a person for which the standard is "a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L. Ed. 2d 1 (1989)(citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L. Ed. 2d 889 (1968)). "The quantum of proof needed for reasonable suspicion is less than a preponderance of evidence, and less than probable cause." United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir. 2000). "Reasonable suspicion ... can arise from information different in quality and content and even less reliable than that required for the establishment of probable cause." United States v. Mattarolo, 209 F.3d 1153, 1157 (9th Cir. 2000). What is required are "specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that the particular person ... is engaged in criminal activity." United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989).

Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L. Ed. 2d 838 (2001), to which the Defendant cites, did not hold that officers must have probable cause to temporarily "seize" a residence. ...

. . .

"Exigent circumstances" justified a temporary "seizure" of the motor home. While a firearm may not easily be destroyed, it certainly can be further secreted and concealed, particularly when it is located in a motor home which itself can be moved. In other words, Defendant could have driven off in the motor home and then removed firearms from the motor home and secreted them somewhere else, or he could simply have removed the firearms from the motor home where parked and secreted them elsewhere.

Concealment of evidence was not the only concern. The officers were concerned for their own safety because the evening before, they had found loaded weapons and explosives in the Defendant's possession. ...

Permalink 05:20:10 am, by fourth, 701 words, 516 views   English (US)
Categories: General

D.D.C.: Probable cause and need shown for DNA sample seeking to connect defendant to violent crime

The government sought a DNA sample by buccal swab from several defendants to seek to connect them to physical evidence found at the scene of a kidnapping and assault with a box cutter. Only one opposed. The District Court held that taking a DNA sample was a search, and it had to be reasonable under Schmerber. Here, the government showed probable cause and need, and, balanced against the invasion of personal dignity involved, the court found the search reasonable. United States v. Lassiter, 607 F. Supp. 2d 162 (D. D.C. 2009):

Once probable cause has been established, Schmerber and Winston require balancing "the extent to which the procedure may threaten the safety or health of the individual," and "the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity," against "the community's interest in fairly and accurately determining guilt or innocence." Winston v. Lee, 470 U.S. at 761-62 (citing Schmerber v. California, 384 U.S. at 770-71). The Court will consider the factors in turn.

As to the first factor, the government seeks to obtain the defendant's DNA by taking a buccal cell swab from the defendant. This procedure involves rubbing a cotton swab along the inside of the defendant's cheek. For good reason, defendant Hebron does not argue that this procedure poses any threat to his health or safety. Indeed, this procedure is considerably less invasive and poses less of a threat to the health and safety of the defendant than taking blood -- the type of search that was permitted in Schmerber. See Johnson v. Quander, 440 F.3d at 496-97. The Court finds that this factor weighs in favor of the government and its request for the DNA sample.

As to the second factor, defendant argues that DNA contains "a plethora of very personal and sensitive information," and thus the test should be considered "highly intrusive." Opp. at 4. While there may be potential for misuse of stored DNA information, the purpose of taking Mr. Hebron's DNA in this case is only to compare his identity with DNA recovered at the crime scene for purposes of the trial in this criminal case. As Judge Walton has noted, when DNA is sought for a limited purpose, a court may wait to consider challenges to other potential use or misuse of an individual's DNA until those uses have actually occurred. See Johnson v. Quander, 370 F. Supp. 2d 79, 88 n. 6 (D.D.C. 2005) aff'd 370 U.S. App. D.C. 167, 440 F.3d 489. The government has not sought to use the DNA for any purpose other than for identification of defendant Hebron as one of the perpetrators of the offenses with which he is charged. Hypothetical privacy intrusions will not render the use of DNA for these purposes unreasonable. See id. This factor therefore also weighs in the government's favor.

Finally, the Court must weigh the first two factors against the community's interest in fairly and accurately determining guilt or innocence. Winston v. Lee, 470 U.S. at 762. Given the violent nature of the alleged acts in this case, the community's interest in accurately determining guilt or innocence is particularly strong. Cf. United States v. Weston, 134 F. Supp. 2d 115, 132 (D.D.C. 2001). While the defendant argues that "the requested DNA sample is of little, if any, significance" to the ultimate resolution of this case, Opp. at 5, he cannot know this. If the DNA recovered from the crime scene does in fact match Mr. Hebron's DNA, that evidence would be probative of the government's assertion that Mr. Hebron was at the crime scene and participated in the assault of Mr. Lyles. Defendant also argues the government has failed to show a need for the sample because its evidence already includes the eyewitness testimony of the victim as well as the statements of various of the co-defendants. See id. Although the DNA evidence might be duplicative or corroborative of testimony given by the victim and others and their identification of Mr. Hebron as a participant in the charged crimes, DNA evidence is evidence of a different form and nature than eyewitness identification testimony and is not susceptible to the same type of reliability challenges. Under the circumstances presented, the Court concludes that the third factor also weighs in favor of the government.

04/15/09

Permalink 03:41:05 am, by fourth, 169 words, 531 views   English (US)
Categories: General

D.Del.: Welfare check search for defendant was unreasonable where officers did not find him and then continued into a tackle box for evidence

Welfare check entry did not find the defendant, so continuing the search to look for defendant's property in a tackle box was unreasonable. United States v. Tarburton, 610 F. Supp. 2d 268 (D. Del. 2009).

Officer lacked reasonable suspicion that a traffic offense had occurred, so the stop was invalid. Defendant was a passenger in a livery cab stopped by the police. United States v. Stewart, 2009 U.S. Dist. LEXIS 30462 (S.D. N.Y. April 1, 2009).*

Defendant's stop for excessive noise, even if the noise ordinance was unconstitutional, was reasonable, and the exclusionary rule would not be applied to a stop based on a presumptively valid ordinance under the N.H. Constitution, and looking to Krull for guidance. State v. De La Cruz, 158 N.H. 564, 969 A.2d 413 (2009).

Since officers responding to a 911 call found defendant with a knife in hand and a body at his feet, any alleged search and seizure error in admission of some evidence from his person was harmless beyond a reasonable doubt. Ward v. State, 903 N.E.2d 946 (Ind. 2009).*

04/14/09

Permalink 04:25:46 am, by fourth, 233 words, 373 views   English (US)
Categories: General

CA11: Officer can ask DUI detainee about gun without Mirandizing him

Officers had reasonable suspicion for defendant's frisk. "The officers had reasonable suspicion to stop Hudnell based on the unresolved 911 call asking for police assistance, Hudnell's appearance from behind a house that was not his, and Hudnell's attempt to run away upon further questioning. Further, a reasonable officer would believe that Hudnell was armed and dangerous based on the above facts and his silence as to whether he had a weapon." United States v. Hudnell, 322 Fed. Appx. 772 (11th Cir. 2009) (unpublished).*

Defendant was stopped for DUI and he was agitated. The officer could ask about whether defendant had a gun in the car without Mirandizing him. United States v. Smith, 322 Fed. Appx. 876 (11th Cir. 2009) (unpublished).*

Defendant on parole who admitted submitting false urine samples gave reasonable suspicion for a house search. Lowery v. United States, 2009 U.S. Dist. LEXIS 30285 (E.D. Pa. March 25, 2009).*

In Montana, exigent circumstances does not permit an entry until the evidence exists in a state capable of being tested, and blood in the body is not. State v. Saale, 2009 MT 95, 350 Mont. 64, 204 P.3d 1220 (2009).*

Officer did not seize the defendant because she was parked when he walked up to her to see what was going on, and the officer observed slurred speech. Objectively, this was a "voluntary exchange." "A reasonable person in Wilkins's situation would not have concluded that she was not free to leave." State v. Wilkins, 2009 MT 99, 350 Mont. 96, 205 P.3d 795 (2009).*

04/13/09

Permalink 07:03:20 am, by fourth, 148 words, 338 views   English (US)
Categories: General

WI: Leaving a file folder in a courthouse hallway was a loss of the REP

A broken gun magazine seen as defendant was exiting his car during a traffic stop justified a frisk for the gun. State v. O'Neal, 7 So. 3d 182 (La. App. 2d Cir. 2009).*

Search incident to a warrant arrest during a traffic stop was justified. State v. Munoz, 2009 Ida. App. LEXIS 22 (March 25, 2009).*

Defendant was told that a search warrant had been issued for his house and it was on its way, and defendant admitted the officers. The conversation occurred outside and away from the house. People v. Shultis, 61 A.D.3d 1116, 876 N.Y.S.2d 740 (3d Dept. 2009).*

Defendant process server lost any reasonable expectation of privacy in papers left in a file folder in a courthouse hallway on a bench which were picked up to determine whom they belonged to. The process server was convicted of forging one of the documents. State v. Russ, 2009 WI App 68, 317 Wis. 2d 764, 767 N.W.2d 629 (2009).*

Permalink 06:21:56 am, by fourth, 392 words, 365 views   English (US)
Categories: General

Cal.4: State's failure to put on proof relating to GFE precluded reliance on it on appeal

The state failed to prove that defendant's search was validly based on the parole search exception, and then failed to put on any proof that the good faith exception would apply [aside from the fact the good faith exception is almost universally based on a search warrant without PC]. People v. Pearl, 172 Cal. App. 4th 1280, 92 Cal. Rptr. 3d 85 (4th Dist. 2009):

The prosecution here neither asserted the good faith exception nor met its burden of proving its applicability. In the trial court, the prosecutor did not invoke or argue any exception to the exclusionary rule. On the day of the suppression hearing, the prosecutor filed written opposition to Pearl's motion to suppress, arguing (1) Pearl was on parole at the time of the search, (2) the parole search validly extended to common areas of the house in which Pearl rented a room, and (3) Spira consented to the searches of her home. After the close of evidence at the suppression hearing, the trial court asked the prosecutor directly, "[w]e're not talking about good faith reliance on [a] search warrant, are we?" The prosecutor replied, "I would ask to do some research into that. That pops in[to] my mind, good faith exception but we don't have to go that far." (Italics added.)

The prosecution did not present evidence directed to the good faith exception. Crager never testified to the substance of any conversations with the "parole department." Pearl's parole agent did not testify. The prosecution offered Pearl's CDC record to prove he was in fact on parole on December 13, 2004, not to prove Crager or anyone else reasonably relied on that record in determining Pearl was subject to a parole search.

Defendant validly confessed to a crime, and then consented as a part of the confession. The suppression order was reversed. State v. Rooks, 674 S.E.2d 738 (N.C. App. 2009).*

SW for "documents showing ownership, control and access [that] constitutes evidence of a crime and the identity of the person(s) participating in a crime" permitted seizure of rap lyrics written in a notebook. State v. Bryant, 674 S.E.2d 753 (N.C. App. 2009).*

Officer's entry into defendant's open garage to inspect a vehicle for a hit and run was reasonable and based on exigent circumstances. He knocked but the defendant did not answer before he walked in. Commenwealth v. Fickes, 2009 PA Super 64, 2009 Pa. Super. LEXIS 78 (April 8, 2009).

Permalink 05:57:12 am, by fourth, 315 words, 413 views   English (US)
Categories: General

M.D.Fla.: SI of cell phone for driving on a suspended license unreasonable

Search incident of a cell phone for driving on a suspended license was unwarranted and suppressed, even though it was intended to find information relating to the smell of marijuana in the car. United States v. Quintana, 594 F. Supp. 2d 1291 (M.D. Fla. 2008).

Here, rather than seeking to preserve evidence that Defendant was driving with a suspended license, Garcia was rummaging for information related to the odor of marijuana emanating from the vehicle. Where a defendant is arrested for drug-related activity, police may be justified in searching the contents of a cell phone for evidence related to the crime of arrest, even if the presence of such evidence is improbable. In this case, however, Defendant was arrested for driving with a suspended license. The search of the contents of Defendant's cell phone had nothing to do with officer safety or the preservation of evidence related to the crime of arrest. This type of search is not justified by the twin rationales of Chimel and pushes the search-incident-to-arrest doctrine beyond its limits. See Thornton, 541 U.S. at 624 (O'Connor, J., concurring in part); see also Evans v. Stephens, 407 F.3d 1272, 1297 (11th Cir. 2005) (finding strip search for drugs incident to arrest for driving under the influence unlawful where officer "did [not] have any reason to believe that the strip search would reveal relevant evidence"); State v. Smith, No. 07-CA-47, 2008 WL 2861693, at *8 (Ohio 2d DCA July 25, 2008) (affirming trial court's decision in drug case to admit cell phone's call records but suppress incriminating photos found in the phone because there was no reasonable suspicion that the photo album would contain such evidence).

Accordingly, the information obtained pursuant to Garcia's search of the cell phone photo album should be suppressed. Because this information--a photo of a "grow house"--directly led to and tainted the preliminary search of the Lutz residence, any information discovered during that search should also be suppressed.

04/12/09

Permalink 11:30:05 am, by fourth, 520 words, 382 views   English (US)
Categories: General

W.D.Va.: SW issued without PC was "rubber stamped" by state judge; GFE did not apply

The search warrant in this case was issued without probable cause, not even close. The state judge who signed off on the search warrant can only be found to have "rubber stamped" the search warrant, so the good faith exception did not apply. Motion to suppress granted. United States v. Lester, 2009 U.S. Dist. LEXIS 29631 (W.D. Va. April 1, 2009)*:

Despite the government's assertion to the contrary, I find that the Supreme Court's holding in Herring is not particularly relevant to the facts of this case -- other than to demonstrate the current Court's disfavor of the application of the exclusionary rule. See also Hudson v. Michigan, 547 U.S. 586, 591 (2006) (exclusionary rule applicable "only where its deterrence benefits outweigh its 'substantial social costs'" (quoting Leon, 486 U.S. at 907). In Herring, the law enforcement officers acted in good faith upon what was only minutes later determined to be false information. In this case, the search warrant at issue sought to seize evidence of the crime of distribution of a controlled substance. Both the officer who obtained the warrant, Skeens, and the officer who executed the warrant, Owens, admitted that they knew the elements of the crime of distribution of a controlled substance. Both admitted that they were familiar with the contents of the Affidavit--Skeens because he drafted it and Owens because he read the Affidavit before he executed the search warrant. Both admitted, although Skeens did so reluctantly, that the Affidavit did not establish probable cause that the crime of distribution of a controlled substance had been committed by anyone, anywhere. Perhaps, most shockingly, both men asserted that they believed that the warrant was a valid warrant because they had presented similarly deficient affidavits on numerous occasions to Virginia state court magistrates, including Magistrate Mitchell, and had been issued warrants to search for evidence of the distribution of controlled substances. Based on the facts of this case, the court is left to only one conclusion--the magistrate simply "rubber stamped" the bare bones Affidavit presented to him.

I do not mean to suggest that the officers involved in the search at issue in this case acted in subjective bad faith. This court is acutely aware of the impact that the distribution of oxycodone and other narcotic painkillers is having on the residents of Southwest Virginia. This court also is aware of the difficulties local law enforcement agencies face as they battle this ever-increasing problem. I cannot under Leon, however, find that the officers' reliance on this warrant was objectively reasonable.

The fact that defendant was in a vehicle for 15 seconds before his arrest made him a "recent occupant" and made the vehicle subject to search incident. United States v. Patterson, 2009 U.S. Dist. LEXIS 29655 (M.D. Pa. April 8, 2009).*

Police were called to defendant's partner's suicide, and they were investigating and treating the home as a crime scene. Defendant consented to the entry, and the resulting search warrant for the computer was valid. United States v. Filipowski, 2009 U.S. Dist. LEXIS 29388 (D. Vt. April 3, 2009).*

Defendant's encounter with the officer was purely consensual and led to his consent. People v. Scheffer, 224 P.3d 279 (Colo. App. 2009).*

Permalink 10:02:04 am, by fourth, 726 words, 401 views   English (US)
Categories: General

IA: Admission of refusal of consent was evidentiary error because it was ambiguous and prejudicial

Using defendant's refusal of consent against her was prejudicial and reversible error. The court expressly did not decide the issue as a constitutional violation, but decided it as an evidentiary error. State v. Thomas, 766 N.W.2d 263 (Iowa App. 2009):

On the other hand, when such evidence is probative for some purpose other than to simply penalize the defendant for exercising a constitutional right, then notions of fair play and the need to preserve the truth-testing functions of the adversarial process may outweigh the prejudice. For instance, evidence of refusal to consent to a warrantless search has been admitted as "fair response" to rebut a defendant's theory. See Leavitt v. Arave, 383 F.3d 809, 828 (9th Cir. 2004) (noting that comments regarding one's exercise of Fourth Amendment rights are generally improper unless such comments fairly rebut a claim by defendant--in this case, evidence showing that defendant was the only suspect who refused to voluntarily give a blood sample was properly admitted to rebut defendant's claim that he cooperated with the investigation); United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999) (finding no Fourth Amendment violation where comments regarding defendant's refusal to permit search were admitted for proper purposes and were not meant simply to penalize defendant for exercising a constitutional right--in this case, the evidence helped establish that defendant had dominion and control over the premises); United States v. McNatt, 931 F.2d 251, 258 (4th Cir. 1991) (finding no Fourth Amendment violation where comments regarding defendant's refusal to permit search were in fair response to defendant's argument that drugs were planted by police in his vehicle).

. . .

C. Relevance of Refusal of Consent. We have already set forth in some detail the testimony of and argument surrounding the admission of Thomas's refusal to consent to a search. Thomas's refusal to consent to a search of her home was a recurring theme in the State's case. The prosecutor's justification for the refusal to consent evidence was "it would be evidence of the defendant's recognition that she had illegal substances in her residence and so therefore wasn't going to grant consent because if officers went in and did a search, they would find the drugs." This is precisely the improper inference the rules of evidence seek to avoid.

Contrary to the prosecutor's argument, a defendant's refusal to consent to a warrantless search is too ambiguous to be relevant--it could mean several things, particularly when it is made post-arrest and post-Miranda. As one court has concluded:

Because the right to refuse entry when the officer does not have a warrant is equally available to the innocent and the guilty, just as is the right to remain silent, the refusal is as "ambiguous" as the silence was held to be in United States v. Hale .... Yet use by the prosecutor of the refusal of entry, like use of the silence by the prosecutor, can have but one objective to induce the jury to infer guilt. In the case of the silence, the prosecutor can argue that if the defendant had nothing to hide, he would not keep silent. In the case of the refusal of entry, the prosecutor can argue that, if the defendant were not trying to hide something ... she would have let the officer in. In either case, whether the argument is made or not, the desired inference may be well drawn by the jury. This is why the evidence is inadmissible in the case of silence. It is also why the evidence is inadmissible in the case of refusal to let the officer search.

Inadmissible evidence, which can readily be misinterpreted by the jury, should not be admitted just to put the relevant facts in their true setting .... [T]he facts in issue are so ambiguous as to be irrelevant. Moreover, they are so readily subject to misinterpretation by a jury as to render a curative or protective instruction of dubious value.

United States v. Prescott, 581 F.2d 1343, 1352 (9th Cir. 1978) (internal citations omitted) (emphasis added). As Thomas's counsel argued,

if someone comes and knocks on my door and says they want to walk through my house, I have the absolute right to say no it is not--it is not indicative of anything other than I know what my rights are.

We conclude the evidence of Thomas's refusal to consent was irrelevant and unfairly prejudicial, and the district court erred in admitting it.

04/11/09

Permalink 12:16:26 pm, by fourth, 257 words, 851 views   English (US)
Categories: General

Safford strip search argument April 21st

In what the commentators (and list serv traffic) already see as a major test of school search law, the Supreme Court hears argument April 21st in Safford United School District #1 v. Redding, and news articles are appearing in advance. There is today's Washington Post: Strip-Search Case Could Redefine Student Privacy. The NYTimes had an article March 23d already mentioned here.

The cert grant is posted here, Ninth Circuit's en banc decision posted here. See also commentary posted on SCOTUSWiki and the American Constitution Society Blog (scroll down to "The Fourth Amendment and Strip Searches in the Public Schools" posted April 7th). In their post:

In short, the Ninth Circuit was correct to hold the search unconstitutional. However, the Ninth Circuit, like the Second and Seventh Circuits, wrongly interprets T.L.O. as establishing a sliding scale governing what level of suspicion is necessary to justify the search of a student. T.L.O. does not do this: it holds that reasonable suspicion is the proper standard. As the Solicitor General argued in an amicus brief, a sliding scale standard is too indeterminate. It could require probable cause for some searches and no cause of all for others, based on an ad hoc balancing test that would provide little advance guidance to officials. Ideally, the Supreme Court will reject the sliding scale, reaffirm the reasonable suspicion standard, and determine that under that standard, this search violated the Fourth Amendment.

I was going to post something on this on April 20th, but the flurry of stuff now can't wait.

Permalink 12:11:32 pm, by fourth, 167 words, 325 views   English (US)
Categories: General

FL2: Wildlife stops require RS; being in a management area not enough

A stop by a wildlife officer in a wildlife area still requires reasonable suspicion defendant was doing something under statute. Here, there was nothing. Amison v. State, 5 So. 3d 798 (Fla. App. 2DCA 2009).

The evidence supported the conclusion that the third party in this case had the authority to consent. $567.00 in United States Currency v. State, 282 S.W.3d 244 (Tex. App. — Beaumont 2009).*

Fourth Amendment governed arrests by casino security in New Jersey. Friedman v. Borgata Hotel, 2009 U.S. Dist. LEXIS 29084 (D. N.J. April 1, 2009).

Trash search corroborated CIs and observations of smell of marijuana on defendant's property. Search warrant was issued with PC. United States v. Wake, 318 Fed. Appx. 658 (10th Cir. 2009)* (unpublished).

Defendant's motion to suppress is granted. Officers made a felony stop of defendant's car when he was leaving a known drug house, and all they had were furtive movements and purported traffic violations occurring within three houses down the street, which the court rejects. United States v. Williams, 2009 U.S. Dist. LEXIS 29185 (N.D. Ohio April 8, 2009).*

Permalink 11:33:53 am, by fourth, 303 words, 586 views   English (US)
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E.D. Cal.: Jail strip searches: group searches and searches of inmates to be released on return from court unreasonable

Defendant had been effectively seized for Miranda purposes when he made incriminating statements about marijuana in his car, so his statements are suppressed. There was PC for his stop for speeding. United States v. $43,584.00 in United States Currency, 2009 U.S. Dist. LEXIS 28720 (D. Neb. April 3, 2009).*

On the question of coerced third party consent by a threat to get a search warrant, the government is allowed an opportunity to show what the probable cause was at the time the consent was given. United States v. Newman, 2009 U.S. Dist. LEXIS 28702 (W.D. Wis. April 3, 2009).*

The particularity of the search warrant was sufficient, and the officer's familiarity with the property "obviated likelihood that another premises may have been mistakenly searched." United States v. May, 2009 U.S. Dist. LEXIS 28588 (W.D. N.C. April 3, 2009)*:

When these documents are properly considered together, the resulting description of the property to be searched is particular enough "to enable the executing officer to locate and identify the premises with reasonable effort." United States v. Durk, 149 F.3d 464, 465 (6th Cir. 1998) (quoting United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir. 1989)); see also United States v. Owens, 848 F.2d 462, 463 (4th Cir. 1988). Further, the officer's familiarity with the premises to be searched obviated the likelihood that another premises may have been mistakenly searched. See Durk, 149 F.3d at 465. Because the warrant satisfied the particularity requirements of the Fourth Amendment, and was otherwise valid, this court need not reach the question of whether the good faith exception would apply to this case.

In a Kern County, California strip search case, the court finds that group strip searches were unreasonable under the Fourth Amendment. Inmates ordered released as a result of court appearances should not be strip searched when they return to the jail for processing out. Lopez v. Youngblood, 609 F. Supp. 2d 1125 (E.D. Cal. 2009).

04/10/09

Permalink 07:11:39 am, by fourth, 253 words, 350 views   English (US)
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CA5: Defendant did not waive suppression issue where he did not have all the facts on it until trial

Defendant did not waive his suppression issue where the facts were not available to the defense before evidence developed at trial. He loses on the merits, however. United States v. Moody, 2009 U.S. App. LEXIS 7166 (5th Cir. April 6, 2009):

For two reasons, Hines has not waived the issue for appeal. First, the government never argued that he waived the issue, so the government has waived its potential waiver argument. Second, in advance of trial the government misstated which police officer had searched Hines's car, information that was necessary for the pre-trial suppression motion. After defense counsel recognized that error, the court held a full suppression hearing outside the jury's presence. Therefore, because Hines did not have all the necessary information, and the issue was eventually fully litigated, the suppression issue was not waived.

Defendant well knew at the time he wrote his own consent form that his computer was subject to being forensically examined with software to recover deleted files which he told the officers was on his computer. After the seizure by consent, a search warrant was obtained for the computer. United States v. Luken, 560 F.3d 741 (8th Cir. 2009).*

Officers on the premises with a search warrant for drugs could properly seize evidence of a robbery because it was evidence in plain view. Items with latent prints were properly seized. United States v. Rose, 321 Fed. Appx. 324 (4th Cir. 2009) (unpublished). (Note: For those of you who have argued lack of fingerprinting of a CD was significant, here a latent was recovered from a CD.)

Permalink 06:48:30 am, by fourth, 239 words, 338 views   English (US)
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IL: Three Terry cases

Defendant was approached on the street by a uniformed officer because the officer did not recognize the defendant and because of robberies in the neighborhood. He told the defendant to get his hands out of his pockets and a gun was dropped. The stop was invalid for lack of RS. People v. Jackson, 906 N.E.2d 56 (Ill. App. March 30, 2009).*

Defendant's stop was without reasonable suspicion. All the factors listed by the state were found by the trial court to be as consistent with innocent conduct as potential criminal conduct. State's argument that defendant was subjected to a parole stop was waived for not presenting that argument to the trial court. People v. Vasquez, 2009 Ill. App. LEXIS 171 (February 11, 2009).*

Reasonable suspicion defendant was involved in a gang shooting justified a Long protective frisk of the car defendant was riding in. [Standing issue did not need to be resolved.] People v. Johnson, 2009 Ill. App. LEXIS 157 (January 8, 2009):

Thus, the narrow question before this court is whether a police officer, who has reasonable suspicion to believe that an individual was involved in a shooting that has just occurred, may conduct a limited protective search of the passenger compartment of a vehicle that the officer has just seen the individual get out of. We find that under those circumstances, consistent with Terry and Illinois law, a limited protective search of the passenger compartment of the vehicle for weapons is proper. See Long, 463 U.S. at 1049, ....

04/09/09

Permalink 09:13:06 am, by fourth, 557 words, 855 views   English (US)
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D.V.I.: Delayed notice of sneak and peek does not per se require exclusion

Delayed notice of a covert entry under 18 U.S.C. § 3103 does not per se justify exclusion of the evidence. United States v. Christopher, 2009 U.S. Dist. LEXIS 28240 (D. V.I. March 31, 2009):

What constitutes a reasonable time for delayed notice will depend upon the circumstances of each individual case and the Court bears in mind the ongoing nature of the investigation as well as the manner in which the delayed notice search warrant was executed in this case. See id. at 1337. The Court takes into account that, generally, a covert entry search is less intrusive than a conventional search with physical seizure because the latter deprives the owner not only of privacy but also of the use of his property. See Villegas, 899 F.2d at 1337. It is also the Court's perception that a covert entry search is less intrusive than a wiretap or video camera surveillance because "the physical search is of relatively short duration, focuses the search specifically on the items listed in the warrant, and produces information as of a given moment, whereas the electronic surveillance is ongoing and indiscriminate ...." Id.

Additionally, the Court notes that a violation of Federal Rule of Criminal Procedure Rule 41 or 18 U.S.C. § 3103's notice requirement does not necessarily call forth the application of the exclusionary rule. See Donovan, 429 U.S. at 438-39; Pangburn, 983 F.2d at 455. "Courts should be wary in extending the exclusionary rule in search and seizure cases which are not of constitutional magnitude." United States v. Burke, 517 F.2d 377, 386-87 (2d Cir. 1975). A rule of exclusion is properly employed only where the objection goes to the question of the reliability of the challenged evidence or reflects intolerable government conduct which is widespread and cannot otherwise be controlled. See Dunaway v. New York, 442 U.S. 200 (1979); Manson v. Brathwaite, 432 U.S. 98 (1977); United States v. Calandra, 414 U.S. 338 (1974); Neil v. Biggers, 409 U.S. 188 (1972); Mapp v. Ohio, 367 U.S. 643 (1961). The imposition of sanctions requiring the suppression of evidence that results from a search where there has not been compliance with the relevant notice requirements must depend upon the relationship of the violation to the reliability of the evidence seized.

The Court finds it difficult to accept the proposition that a search may be deemed reasonable, and therefore constitutional, during the various stages of application for authorization, execution, and termination, only to be invalidated because of the operation of some condition subsequent, to-wit, a failure to provide notice. See United States v. Cafero, 473 F.2d 489, 499 (3d Cir. 1973). The procedural requirements for giving notice after execution of a valid search warrant are ministerial tasks and a failure to comply therewith, without more, does not amount to deprivation of Fourth Amendment rights necessitating suppression. Id.; see also Frisby v. United States, 79 F.3d 29, 31-32 (6th Cir. 1996). The Court holds that violations of the notice requirements under Rule 41 or 18 U.S.C. § 3103 will not lead to exclusion unless there is a substantial showing of either (1) incurable prejudice to the defendant or (2) bad faith on the part of law enforcement officers or government agents. See Donovan, 429 U.S. at 438-439; Burke, 517 F.2d at 387; Mark, 2007 U.S. Dist. LEXIS 17878 at *33; see also United States v Hooker, 418 F Supp 476 (M.D. Pa. 1976) (finding that failure of government to properly file inventory under Rule 41 would not require suppression of evidence where error was inadvertent and resulted in no prejudice to defendant).

Permalink 09:04:35 am, by fourth, 281 words, 448 views   English (US)
Categories: General

Failure to make timely return of SW to court is not a constitutional defect

Citizen informant was not subjected to the same scrutiny as a confidential informant, even if the informant is seeking revenge. But, there were other informants corroborated, too. Defects in the return of the warrant are ministerial and do not justify suppression. State v. Dietrich, 2009 NMCA 31, 145 N.M. 733, 204 P.3d 748 (2009), certiorari denied, No. 31,524, February 17, 2009, released for publication March 31, 2009:

[*17] Further, even if it appears that the informant is seeking revenge, it does not necessarily indicate a motive to falsify allegations. See People v. Isenberg, 52 Ill. App. 3d 426, 367 N.E.2d 364, 366, 9 Ill. Dec. 930 (Ill. App. Ct. 1977) (rejecting the defendant's contention that the informant could not be reliable because he was seeking revenge on the defendant based on the informant's brother's hospitalization and holding that the informant could be considered an ordinary citizen); State v. Olson, 2003 MT 61, P 27, 314 Mont. 402, 66 P.3d 297 (noting that even if a citizen-informant has mixed motives, his information can still be reliable). While the fact that J.O. made allegations against Defendant while being investigated for a burglary perpetrated on Defendant's property casts doubt on J.O.'s truthfulness, we cannot ignore that he remained a named informant and that Detective Harris further investigated and received corroborating information.

Smell of burnt marijuana during a traffic stop justified a search incident of the interior of defendant's car. Defendant's strip search that was not a body cavity search was justified by the facts. A bag of cocaine came out of his underwear. Jenkins v. State, 970 A.2d 154 (Del. 2009).*

Failure to properly return a warrant under state law does not affect the warrant in federal court if the process is otherwise constitutional. United States v. Ambrose, 2009 U.S. Dist. LEXIS 28253 (E.D. Tenn. March 30, 2009).*

04/08/09

Permalink 08:22:40 am, by fourth, 561 words, 431 views   English (US)
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CA7: Permitting gov't to reopen suppression issue is discretionary

Following other circuits, the Seventh Circuit holds that permitting the government to reopen a suppression hearing is discretionary. United States v. Ozuna, 561 F.3d 728 (7th Cir. 2009):

This court has generally given wide latitude to district courts to reopen suppression hearings for consideration of newly obtained evidence. See, e.g., United States v. Scott, 19 F.3d 1238, 1243 (7th Cir. 1994); United States v. Duran, 957 F.2d 499, 505-06 (7th Cir. 1992). Ozuna claims that this same latitude is not warranted where the evidence was available at the time of the previous hearing. In fact, he argues that the government should never be allowed to supplement a suppression hearing unless the evidence is newly acquired. He asserts that because the government could have subjected the document to handwriting analysis prior to the first hearing, it should not have been allowed to present this evidence at the second hearing. We find this argument unpersuasive.

As we have previously recognized, society has a strong interest in admitting all relevant evidence. United States v. Regilio, 669 F.2d 1169, 1177 (7th Cir. 1981). Thus, a defendant is entitled to suppression only in cases of constitutional violations, and the district court remains free throughout the trial to reconsider its previous orders suppressing evidence. Id. Because of society's interest, we have never required the government to justify a request for reconsideration of a prior ruling. See id.; see also United States v. Bayless, 201 F.3d 116, 131 (2d Cir. 2000) (opining that the Seventh Circuit has rejected "a rule requiring the government ... to proffer a justification for its failure to present the relevant evidence at the original suppression hearing"). We now likewise decline to impose a justification requirement to reopen a suppression hearing. Instead, we hold that this decision lies within the sound discretion of the district court.

We are not the only circuit to reach this conclusion. See In re Terrorist Bombings of the U.S. Embassies in E. Afr., 552 F.3d 177, 196 (2d Cir. 2008); see also United States v. Rabb, 752 F.2d 1320, 1323 (9th Cir. 1984) (citing Reglio with approval and holding that "[a] criminal defendant acquires no personal right of redress in suppressed evidence"), abrogated on other grounds by Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). For example, the Second Circuit has held that "on a motion to reopen a suppression hearing, there is no bright-line rule that necessarily and invariably requires the government to provide a reasonable justification for its failure to offer relevant evidence at an earlier suppression proceeding." In re Terrorist Bombings, 552 F.3d at 196. Because of the policy favoring introduction of lawfully obtained evidence, the Second Circuit stated that "'vague notions of unfairness ... ought not [to] control.'" Id. (second alteration in original) (quoting Bayless, 201 F.3d at 132). Instead, the court noted that the government's justification for the delay was merely one factor to consider, leaving the ultimate determination to the discretion of the district court. Id. at 196-97.

Defendant's plea agreement gave him permission to appeal evidence obtained from the execution of the search warrants, but not the pro se motions that he filed challenging the search, so his appeal on those grounds is dismissed. United States v. Kingcade, 562 F.3d 794 (7th Cir. 2009).*

In a forfeiture case, the search is challenged by a motion to suppress, not a motion to dismiss. Here, there was RS and PC, but claimant lacked standing. United States v. $572,204 in United States Currency, 606 F. Supp. 2d 153 (D. Mass. 2009).

Permalink 07:23:50 am, by fourth, 220 words, 354 views   English (US)
Categories: General

OH5: Inventory could include crushed cigarette pack

Inventory search permitted officer looking in crushed up cigarette pack. State v. Davis, 2009 Ohio 1660, 2009 Ohio App. LEXIS 1370 (5th Dist. April 3, 2009).

Consent to "look in" the trunk was consent to search. Davis v. State, 297 Ga. App. 319, 677 S.E.2d 372 (2009).

"Probable cause is a decidedly amorphous concept that invokes an unstructured analysis," and "'[a]rticulating precisely what *** "probable cause" mean[s] is not possible.' Ornelas v. United States (1996), 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911." Here, it cannot be said that the trial court was wrong in determining that there was PC. State v. Huber, 2009 Ohio 1636, 2009 Ohio App. LEXIS 1347 (2d Dist. April 3, 2009).*

Defendant was stopped for, first, turning away from a police car, and then backing down a street which the court finds is "'Unprovoked flight upon seeing police officers'" (Wardlow), and there was reasonable suspicion based on that where attention was drawn to the defendant by a radio call. State v. Chadwell, 2009 Ohio 1630, 182 Ohio App. 3d 256, 912 N.E.2d 618 (2d Dist. 2009)* (Note: This is dependent on the backing up because merely turning away cannot be RS).

On the arrest of the passenger in a car, the officer was justified in conducting a search incident of the interior under Belton and Thornton. The trial court erred in granting the motion to suppress. State v. Williams, 2009 Ohio 1627, 2009 Ohio App. LEXIS 1356 (2d Dist. April 3, 2009).*

04/07/09

Permalink 10:24:30 am, by fourth, 349 words, 576 views   English (US)
Categories: General

N.D. Fla.: Officers violated curtilage to get PC for SW

In a "tax protester" suit, an IRS summons and levies comply with the Fourth Amendment. Marranca v. United States IRS, 2009 U.S. Dist. LEXIS 27831 (W.D. N.Y. March 31, 2009)*:

Fourth Amendment protections apply in the IRS tax collection context only when the property sought by levy is unobtainable without an intrusion of privacy. See GM Leasing Corp., 429 U.S. at 351-52; Maisano v. Welcher, 940 F.2d 499, 502-03 (9th Cir. 1991) ("In applying the Fourth Amendment to IRS seizures of taxpayers' property, the Supreme Court indicates that the key issue is whether the seizure involves an invasion of privacy.") Since the Notice of Levy in this case was served on Petitioners employer, Petitioner had no reasonable expectation of privacy and the Fourth Amendment warrant requirement is therefore not implicated. See Cameron, 593 F.Supp. at 1554 (holding that no invasion of privacy occurred for Fourth Amendment purposes where wages were "levied when [they were] neither in plaintiff's private possession nor subject to his private control").

Applying the Dunn standard, the court concludes that officers were on the defendant's curtilage when they smelled marijuana, and their entry onto the curtilage without a warrant was suppressed. United States v. Rodriguez, 2009 U.S. Dist. LEXIS 27615 (N.D. Fla. March 18, 2009)*:

This Court does not dispute the fact that when the officers smelled marijuana ten feet from the door, the officers had probable cause to obtain a warrant to search the premises. What this Court does conclude, however, is that in arriving at the location where they smelled the marijuana, the officers had unlawfully entered Defendant's curtilage. Admittedly, the line at which the curtilage starts and is therefore differentiated from an open field is not a clear line. But at some point, between the locked gate that separates Defendant's property from the public street and the Defendant's front door, the officers passed into an area where Defendant had a privacy right that society is prepared to accept. That area is relatively close to the home. Accordingly, this first factor supports a finding that the point at which the officer was first alerted to the presence of contraband occurred within curtilage.

Permalink 08:32:43 am, by fourth, 271 words, 491 views   English (US)
Categories: General

D.Utah: Photographing scene of search is not a violation of SW

In a rare federal obscenity prosecution, the requirement that the issuing magistrate "focus searchingly on the question of obscenity" (Marcus v. Search Warrant) did not require the magistrate to actually view the DVD (P.J. Video). Photographing the scene of the search (300 pictures) was permitted under the warrant. United States v. Harb, 2009 U.S. Dist. LEXIS 26745 (D. Utah March 30, 2009):

Defendants cite no authority for this argument. As cited by the government, the authority is to the contrary.31 The agents were lawfully on the premises and, therefore, their photographs during the execution of the search warrant is not a seizure in violation of the Fourth Amendment. Because the agents "in this case were properly on the [business] premises, they could record by photography scenes presented to their plain view." Whether these photographs are admissible at trial is not before the Court at this time.

31 Bills v. Aseltine, 958 F.2d 697, 707 (6th Cir. 1992) (finding that "the recording of visual images of a scene by means of photography does not amount to a seizure because it does not 'meaningfully interfere' with any possessory interest"); United States v. Mancari, 463 F.3d 590, 596 (7th Cir. 2006) (following Bills); United States v. Espinoza, 641 F.2d 153, 167 (4th Cir. 1981) (finding that where agent was lawfully on the premises in the execution of a valid search warrant, the agent "did not exceed the scope of the warrant by making the photographs of what he saw in plain view and to that extent 'seizing' those views themselves as evidence").

Defendant had no reasonable expectation of privacy in the common areas of his four-plex. United States v. Martin, 2009 U.S. Dist. LEXIS 27860 (D. Kan. April 2, 2009).

04/06/09

Permalink 08:48:35 am, by fourth, 375 words, 528 views   English (US)
Categories: General

D.Minn.: Routine searches of disabled students violated Fourth Amendment

Disabled students were unconstitutionally searched when they came to school everyday, but the special situation leads to qualified immunity. Hough v. Shakopee Pub. Schools, 608 F. Supp. 2d 1087 (D. Minn. 2009):

As discussed above, the undisputed facts establish that MRVSEC violated plaintiffs' Fourth Amendment right to be free of unreasonable searches. But the Court does not believe that the law with respect to school searches was so unequivocal that the searches were objectively unreasonable in light of clearly established legal principles.

Under Doe, suspicionless searches like those challenged in this case are plainly unconstitutional in the ordinary school setting. But MRVSEC programs are not ordinary school settings; they serve only special-education students, and those students receive services that are not provided -- or are provided to only a small minority of students -- in ordinary schools. In C.N.H. v. Florida, discussed above, suspicionless searches like those challenged in this case were upheld in the context of an "alternative school" for students who would otherwise have been confined. 927 So. 2d at 2. While the Court finds C.N.H. distinguishable, C.N.H. does provide some support for plaintiffs' position that the challenged MRVSEC searches were constitutional. Under the circumstances of this case, it was not objectively unreasonable -- although it was incorrect -- for defendants to conclude that sufficient special circumstances existed to justify MRVSEC's search policy under the Fourth Amendment.

[This case relies on one of ours: Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004).]

Defendant's Miranda violation does not mandate suppression of the evidence found in a search warrant based on the statement under Patane. There was probable cause for issuance of the search warrant. United States v. Villa-Gonzalez, 2009 U.S. Dist. LEXIS 26129 (D. Neb. January 6, 2009)*:

Using statements to obtain a search warrant does not compel the defendant to testify against himself at trial; therefore, under Patane, the Miranda violation does not require the suppression of evidence found pursuant to the warrant. See, e.g., United States v. Knill, 2007 U.S. Dist. LEXIS 47327, 2007 WL 1892560 at *5 n.17, Case No. 07-0029, (M.D. Pa. June 29, 2007); United States v. Phillips, 468 F.3d 1264, 1265 (10th Cir. 2006), cert. denied, 549 U.S. 1312, 127 S. Ct. 1893, 167 L. Ed. 2d 377 (2007); United States v. Lara-Garcia, 478 F.3d 1231 (10th Cir.), cert. denied, 550 U.S. 948, 127 S. Ct. 2281, 167 L. Ed. 2d 1114 (2007).

04/05/09

Permalink 11:12:10 pm, by fourth, 111 words, 365 views   English (US)
Categories: General

Paper on the demise of the exclusionary rule

From the American Constitution Society for Law and Policy is this interesting paper: The Roberts Court and the Future of the Exclusionary Rule by Susan A. Bandes:

The Reagan-era Justice Department, led by Attorney General Edwin Meese, spearheaded the first frontal attack on the exclusionary rule. Under the current Supreme Court, these efforts may finally come to fruition. Chief Justice John Roberts and Justice Samuel Alito, both of whom served in the Meese Justice Department are now part of a four-member voting block (with Justices Antonin Scalia and Clarence Thomas) that, to all appearances, is busily laying the groundwork for abandoning the exclusionary rule. They lack only a reliable fifth vote.

04/04/09

Permalink 05:17:36 pm, by fourth, 135 words, 461 views   English (US)
Categories: General

WA: Littering arrest justified SI

A motion to strike is not the proper method of challenging admission of evidence that should be the subject of a motion to suppress. Arrington v. Commonwealth, 53 Va. App. 635, 674 S.E.2d 554 (2009).

An officer in an unmarked car was tailing the defendant for suspicion of meth trafficking. When the defendant crossed the center line, he was stopped for the traffic offense, and he validly consented. Sapp v. State, 297 Ga. App. 218, 676 S.E.2d 867 (2009).*

Littering arrest justified a search incident, and meth was found. State v. Kirwin, 165 Wn.2d 818, 203 P.3d 1044 (2009), with concurrence and dissent.*

Obtaining telephone information is not a Fourth Amendment search. Discovery of a witness by gathering the telephone information was also subject to inevitable discovery [not to mention attenuation which is not applied to witnesses]. Fraise v. State, 17 So. 3d 160 (Miss. App. 2009).*

04/03/09

Permalink 06:47:47 pm, by fourth, 155 words, 422 views   English (US)
Categories: General

CA11: Rule 4 governs federal arrest, not state law

Fed. R. Crim. P. 4(c)(3)(A), not state law, controlled as to the arrest, and the officer did not have to have the arrest warrant in hand or nearby. The finding that the officer's testimony of a clerical error on the return of service of the search warrant was credible was entitled to deference and a clerical error did not invalidate the search. Because the officer discovered an active outstanding arrest warrant and executed it while it was still valid, the officer's subjective intent was irrelevant. United States v. Bembry, 321 Fed. Appx. 892 (11th Cir. 2009)* (unpublished).

Trial court's credibility determination of consent was affirmed. Defendant did not even remember signing consent form, but he admitted that his signature was on it. United States v. Young, 318 Fed. Appx. 407 (6th Cir. 2009)* (unpublished).

A partially obscured registration sticker covered by an Ohio Buckeyes license plate frame was reasonable suspicion in Kansas. United States v. Orduna-Martinez, 561 F.3d 1134 (10th Cir. 2009).*

Permalink 06:09:46 pm, by fourth, 331 words, 366 views   English (US)
Categories: General

CA1: No REP in a washing machine in a common area

Defendant had a subjective expectation of privacy in a gun hidden in a washing machine on the second floor landing 7 feet from where he was found, but it was not an expectation that was reasonable. United States v. Rheault, 561 F.3d 55 (1st Cir. 2009):

Unlike the entryways in Fluker and Drummond -- which were immediately outside the respective apartment doors -- the third-floor landing is not, in our view, an area in which Rheault, a second-floor tenant, could reasonably expect privacy. 10 Also weighing against Rheault is the landlord's testimony that the front-stairway landings were not to be used as storage areas. Thus, the reasonable expectations of anyone attempting to store items there would not be privacy or security, but that the items would be removed by someone -- either the landlord, or, as with Archambault's reclaimed desk, a scavenger. This puts the defendant on even more tenuous footing than the defendant in Hawkins, who endeavored -- unsuccessfully -- to suppress items that were in a designated storage area. While the third-floor landing may have been more "private" than a traditional lobby-like common area, it was less "private" than the entryways in Fluker and Drummond, given that the landlord expressly prohibited its use for storage and that a potentially revolving cast of third-floor tenants and their guests had relatively unfettered access to the very area in which Rheault claims an expectation of privacy. We conclude that such an expectation is objectively unreasonable, and we therefore affirm the district court's denial of Rheault's motion to suppress.

Two USMJ's recommendations to not suppress reversed by the USDJ:

The mudroom entered by the police was illegally entered, and it was a part of defendant's home. United States v. Wilson, 2009 U.S. Dist. LEXIS 26130 (N.D. Iowa March 30, 2009).*

Defendant's traffic stop was not objectively reasonable because it was based on pulling up to an unfamiliar intersection, looking where to go, and then signaling, which the court finds not a traffic offense. United States v. Adler, 2009 U.S. Dist. LEXIS 26194 (D. Neb. March 30, 2009).*

04/02/09

Permalink 07:50:39 am, by fourth, 306 words, 691 views   English (US)
Categories: General

E.D. Pa. permits strip search class action to proceed against private jail

Defendant's blanket assertions, without backup from the witness, that the woman in control of the premises where he allegedly stayed retrieved his gun under coercion by the police was insufficient to show that consent was not valid or he had standing in the first place. United States v. Brewster, 2009 U.S. Dist. LEXIS 25849 (D. Idaho March 27, 2009).* (This seems a little harsh. Is the court saying an affidavit from her would have gotten him a hearing? The court adds that he can cross-examine her at trial, but that would not permit suppression, would it?)

Informant's untruthfulness does not get you a hearing under Franks. United States v. Tunnell, 2009 U.S. Dist. LEXIS 25537 (D. Del. March 25, 2009).*

In a local jail strip search class action case, the defendants argue that Bell v. Wolfish no longer applies under Hudson v. Palmer, but the court disagrees, based on holdings of various Circuits. Hocevar v. GEO Group, 2009 U.S. Dist. LEXIS 25990 (E.D. Pa. March 24, 2009)*:

Although it is difficult to precisely characterize the collective holdings of these cases, especially considering the fact-sensitive nature of reasonableness analysis, suffice it to say that all nine circuits found suspicionless strip searches of recently arrested persons unreasonable and therefore unconstitutional. Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986); Jones v. Edwards, 770 F.2d at 741-42; Stewart, 767 F.2d at 156-57; Giles v. Ackerman, 746 F.2d at 617; Hill v. Bogans, 735 F.2d at 394-95; Mary Beth G., 723 F.2d at 1273; Logan v. Shealv, 660 F.2d at 1013. 11 These courts held that, to be reasonable, custodial strip searches of detained arrestees must be predicated on reasonable suspicion. The "[r]easonable suspicion may be based on such factors as the nature of the offense, the arrestee's appearance and conduct, and the prior arrest record." Giles v. Ackerman, 746 F.2d at 617.

Permalink 07:21:00 am, by fourth, 317 words, 677 views   English (US)
Categories: General

ID: Blocking door with foot was crossing the threshold for Fourth Amendment purposes

Defense counsel were not ineffective for not filing a motion to suppress defendant's search by a security guard who was not a state actor. [Defendant was operating under advice from a jailhouse lawyer that the issue was viable.] State v. Butler, 2009 WI App 52, 317 Wis. 2d 515, 768 N.W.2d 46 (2009).*

Officers were justified in an exigent entry because an apparent burglar was lurking at the window before the officer got to the door, and the people inside were unusually guarded [like there was somebody inside holding them hostage]. State v. Araiza, 209 P.3d 668 (Ida. App. 2009).*

Officer came to a motel room called by management because of marijuana smoking. He did a knock-and-talk and marijuana smoke came out the door. His using his foot to block the door from shutting was a search by crossing the threshold. Consent thereafter was invalid. State v. Hudson, 209 P.3d 196 (Ida. App. 2009):

The police officer's unlawful entry into Hudson's motel room was a violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. The unlawful entry never ended; therefore, the search and acquisition of the incriminating evidence was contemporaneous with the unlawful activity. No intervening circumstances existed which would independently justify the ongoing, unlawful entry. Thus, Hudson's consent to the search of his motel room was rendered invalid and the incriminating evidence acquired during the search must be suppressed as the fruit of the Fourth Amendment violation.

Officers had reasonable suspicion to detain the defendants for aggravated robbery, and that justified handcuffing them. State v. Doakes, 2009 Ohio 1407, 2009 Ohio App. LEXIS 1177 (2d Dist. March 27, 2009).*

Defendant's search incident was justified by the outstanding warrant for her arrest, not the automobile exception. State v. Gray, 2009 Ohio 1411, 2009 Ohio App. LEXIS 1175 (2d Dist. March 27, 2009).*

Delegation of a federal search warrant to a tribal SWAT team was not a violation of Rule 41 because tribal officers are "federal officers." Casillas v. United States, 2009 U.S. Dist. LEXIS 25662 (D. Ariz. February 11, 2009).*

04/01/09

Permalink 03:08:30 pm, by fourth, 35 words, 394 views   English (US)
Categories: General

CNN.com: "Applying for jobless benefits? Here, pee in a cup"

A West Virginia lawmaker wants the unemployed to submit to UAs to get unemployment benefits, and he has proposed a bill requiring it. See CNN.com Applying for jobless benefits? Here, pee in a cup.

Permalink 07:34:45 am, by fourth, 24 words, 378 views   English (US)
Categories: General

ABAJ: "Who's Policing the Fourth Amendment?"

Permalink 06:07:36 am, by fourth, 181 words, 366 views   English (US)
Categories: General

MD: No REP in jail non-privileged mail

Officer observed defendant on a store parking lot, probably engaging in drug transactions, and followed him as he left, speeding. He pulled the defendant over, and defendant got out of the car and obviously had something in his mouth. That, too, was reasonable suspicion. State v. Schnyder, 10 So. 3d 303 (La. App. 5th Cir. 2009).*

Defendant had no reasonable expectation of privacy in his mail as a pretrial detainee (surveying dozens of cases). He mailed a letter which came back with insufficient address. The letter had a copy of an autopsy photograph referring to "my victim" which was admitted into evidence. Sparkman v. State, 184 Md. App. 716, 968 A.2d 162 (2009).

Three defendants being drunk in a garage was not an exigent circumstance that they could not be left alone, comparing it to the level of intrusion on their person by entering the garage and then searching them. State v. Waters, 181 Ohio App. 3d 424, 909 N.E.2d 183 (5th Dist. 2009).*

Defendant's illegal arrest led to a statement that was not sufficiently attenuated from the arrest, and it was suppressed. State v. Gutierrez, 2009 Tenn. Crim. App. LEXIS 209 (March 25, 2009).*

Permalink 05:26:13 am, by fourth, 698 words, 638 views   English (US)
Categories: General

Automobile exception applied even though car was locked and keys were in defendant's pocket at jail

The defendant's car was subject to the automobile exception even though it was locked, he was in custody, and he had the only key. Coolidge did not apply because it did not involve normal exigency. United States v. Dallas, 2009 U.S. Dist. LEXIS 24600 (E.D. N.C. March 23, 2009):

In this case, both requirements of the "automobile exception" are present. The Fourth Circuit has interpreted the "readily mobile" requirement of the "automobile exception" to mean that a car need only be "clearly operational." Brookins, 345 F.3d at 238. Defendant's car was clearly operational as defendant had been driving it just a few hours prior to the police searching it. That defendant had the keys to the car does not render the car any less "readily mobile" under the standard that guides this court's analysis. Further, there was more than sufficient evidence to satisfy the probable cause requirement. ...

First, the police knew that the defendant had been involved in an altercation that involved use of an SKS rifle that may have been in the possession of defendant. (Tr. of Dec. 15, 2008 Suppression Hr'g 30.) Second, the police knew that the car at issue was the car in which defendant and the victim began the night driving around in, and the car in which defendant fled the scene of the shooting. (See M&R 2-5 (summarizing the testimony of the officers); Tr. of Dec. 15, 2008 Suppression Hr'g 31, 42-43, 45.) Third, the car had blood splatters on the exterior that were consistent with an individual standing over the car's trunk and dripping blood on it, as well as blood on the driver's side door window area. (Tr. Of Dec. 15, 2008 Suppression Hr'g 48, 54-56.) The car was parked in front of Brandy Dallas's residence, in which defendant was apprehended. (Id. at 49-51.) The police had thoroughly searched Brandy Dallas's residence looking for the weapons at issue and had not found them. (Id. at 50, 60.) Taken together, these facts indicate that the police had probable cause to suspect that the weapons may have been hidden in the trunk of the 2000 Hyundai that they searched.

The court therefore finds that the "automobile exception" applied to the warrantless search conducted in this case. The car was readily mobile and the police had probable cause to believe that the weapon used in the shooting may have been in the car. ...

Defendant could be stopped leaving a closed military base. There was a BOLO for him, and, when stopped, he was found DUI. United States v. Walton, 2009 U.S. Dist. LEXIS 24906 (N.D. N.Y. March 25, 2009).*

Defendant's actions in not minimally cooperating with the police during his traffic stop justified a patdown and protective search of the car. United States v. Sanders, 2009 U.S. Dist. LEXIS 24795 (N.D. Ind. March 20, 2009):

When considering the totality of the Defendant's conduct after the officers checked the database for warrants, driving status, and prior incidents with law enforcement and re-approached the Defendant's vehicle, the Court finds that the totality of the circumstances created a reasonable concern for officer safety and a reasonable suspicion that the Defendant was hiding or accessing a weapon. After learning that the Defendant had prior incidents involving the carrying a handgun without a license, that he did not have a permit to carry a handgun, and that he had been assigned an alert for having been armed in prior incidents with law enforcement, the officers observed the Defendant reaching around in the passenger compartment, but they also observed him refuse repeated orders to exit the vehicle, repeatedly honk his horn to draw attention to the scene, and act very nervously. They had to remove him from the vehicle. He also maintained a rigid stance and resisted bending over against the vehicle. When viewed in the totality of the circumstances, the Defendant's conduct caused the officers to have a reasonable concern that he might have a weapon and that their safety was threatened. Thus, the officers were lawfully authorized to conduct a protective pat down of the Defendant and a protective search of the passenger compartment. The protective search of the passenger compartment was limited to those areas in the passenger compartment (including the glove compartment and the center console) in which a weapon could be placed or hidden.

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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
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

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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)


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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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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