Archives for: May 2009


Permalink 04:07:11 pm, by fourth, 203 words, 424 views   English (US)
Categories: General

OR: Defendant heard from PO on cell phone he was subject to search so he said to officer "You can search me," and that was consent

Defendant was on supervision, and his PO told the police to call them if they contacted him. The officer encountered the defendant on a theft allegation, and called the PO who told the officer that defendant had a search condition. Defendant said that he wanted to hear that from the PO himself, so the officer handed the phone to defendant. "While still talking to [the PO], defendant put both hands up and told [the officer], 'You can search me.' {The officer] took the phone from defendant and terminated the call." That was valid consent to search. State v. Wammack, 228 Ore. App. 520, 208 P.3d 1000 (2009).*

Having previously been seen by the officer doing hand to hand drug deals and then following officer home apparently in "some amateurish counter-surveillance in support of their illegal drug activity" was reasonable suspicion. United States v. Matthews, 330 Fed. Appx. 364 (3d Cir. 2009)* (unpublished).

The officer asked a witness yes or no leading questions, and that alone does not mean that there was not probable cause for issuance of a search warrant for the plaintiff's property. Omitted information did not show that there was no probable cause for the search warrant. Blanchard v. Lonero, 2009 U.S. Dist. LEXIS 44855 (E.D. La. May 28, 2009).*


Permalink 09:36:07 am, by fourth, 300 words, 435 views   English (US)
Categories: General

TX9: Driver of truck present with owner could consent

Co-driver with owner of truck was capable of consent, even though owner (defendant, with a superior legal interest) was also present. Houston v. State, 286 S.W.3d 604 (Tex. App.–Beaumont 2009),* citing Maxwell v. State, 73 S.W.3d 278, 282 (Tex. Crim. App. 2002).

"[A]lthough Defendant showed that an omission occurred, he made no showing that the affiant intended to mislead the judge by that omission." United States v. Merrell, 330 Fed. Appx. 556, 2009 FED App. 0382N (6th Cir. 2009)* (unpublished).

Defendant was not seized when he walked away from officers calling for him to stop. He was when they laid hands upon him. Officers had reasonable suspicion based on the fact it was a high crime area and they were sent by dispatch to the place of a fight. United States v. Mitchell, 2009 U.S. Dist. LEXIS 44489 (E.D. N.Y. May 27, 2009).*

The fact the consenter was under pressure to consent by her circumstances did not make it involuntary. United States v. Newman, 2009 U.S. Dist. LEXIS 44635 (W.D. Wisc. May 27, 2009):

Nevertheless, the record does not support a claim of illegal coercion to admit to drug possession. The record shows a young woman in a tight spot, wanting to protect her boyfriend but wanting even more to protect herself and her child from the consequences of an arrest on drug charges. Faced with a decision between temporarily delaying a search of her apartment that she knew would disclose at least the marijuana pipe and agreeing to a search with the promise that she would not be charged with possession of the pipe or any other paraphernalia, she made a rational choice based on accurate, if unpalatable information.

Search of defendant's person was justified by search incident and money found on him was admissible in drug case. State v. Grimes, 2009 La. App. LEXIS 982 (5th Cir. May 26, 2009).*


Permalink 10:00:14 am, by fourth, 196 words, 443 views   English (US)
Categories: General "Federal Judge Threatens DOJ Lawyers With Sanctions in Warrantless Wiretapping Case"

Federal Judge Threatens DOJ Lawyers With Sanctions in Warrantless Wiretapping Case by Evan Hill of The Recorder on

Government lawyers trying to fend off a much-watched warrantless wiretapping case in federal court now face sanctions and the possibility of a judgment that the United States committed illegal surveillance (pdf), following an order filed on Friday by Northern District of California Chief Judge Vaughn Walker (.pdf).

Walker, bringing to a head months of volleying between the government, the plaintiffs and himself, ordered Justice Department lawyers to explain why he should not essentially enter a default judgment against the government for violating the Foreign Intelligence Surveillance Act by spying on the Al-Haramain Islamic Foundation.

The government has refused to obey court orders by repeatedly stonewalling Walker's attempt to move the case forward, Walker wrote.

If he rules as threatened, Al-Haramain would win without forcing the government to acknowledge surveillance.

. . .

The government unwittingly set the Al-Haramain litigation into motion years ago by accidentally disclosing to the charity a classified document that reportedly shows a summary of intercepted phone conversations.

The case is In Re: National Security Agency Telecommunications Records Litigation, N.D. Cal. MDL Docket No 06-1791 VRW.

Permalink 09:10:29 am, by fourth, 499 words, 485 views   English (US)
Categories: General

CA9: USPO's delivery guarantee creates no constitutional possessory interest in a package in transit

The post office delivery guarantee does not create a constitutional possessory interest such that US Postal Inspectors could delay a package in Juneau, Alaska, for a dog sniff and a search warrant to open it before delivery. United States v. Jefferson, 566 F.3d 928 (9th Cir. 2009):

The reasoning of LaFrance [from 1st Cir.] is convincing. We hold that an addressee has no Fourth Amendment possessory interest in a package that has a guaranteed delivery time until such delivery time has passed. Before the guaranteed delivery time, law enforcement may detain such a package for inspection purposes without any Fourth Amendment curtailment. See United States v. Gill, 280 F.3d 923, 932-33 (9th Cir. 2002) (Gould, J., concurring) ("Investigators may inspect mail as they wish without any Fourth Amendment curtailment, so long as the inspection does not amount to a 'search,' and so long as it is conducted quickly enough so that it does not become a seizure by significantly delaying the date of delivery."). Once the guaranteed delivery time passes, however, law enforcement must have a "reasonable and articulable suspicion" that the package contains contraband or evidence of illegal activity for further detainment. See Hoang, 486 F.3d at 1160.

In this case, the post office guaranteed that Jefferson would receive his package by 3:00 p.m. on April 7. Any expectation that Jefferson or the post office may have had that the package could arrive earlier is irrelevant. See LaFrance, 879 F.2d at 7. The postal inspector did not need any suspicion to detain Jefferson's package overnight on April 6 because Jefferson did not yet have a possessory interest in the package. By the time "the constitutional chemistry was altered" at 3:00 p.m. on April 7, see id., law enforcement had already established probable cause to seize Jefferson's package. See Hoang, 486 F.3d at 1160 n.1. Thus, law enforcement acted well within the bounds of the Fourth Amendment in detaining, seizing and then searching Jefferson's package.

In sum, we hold that a package addressee does not have a Fourth Amendment possessory interest in a package that has a guaranteed delivery time until the guaranteed delivery time has passed. Jefferson had no Fourth Amendment possessory interest in the "timely" delivery of his package until 3:00 p.m. on April 7. We need not weigh the public interest in the package's detainment against the protected private interest because probable cause was established before Jefferson gained a possessory interest in the package. See id. at 1159.

Defendant's arrest warrant could be executed anytime, and the government had no duty to arrest him before he committed additional drug sales. United States v. Jones, 2009 U.S. Dist. LEXIS 44222 (S.D. Ohio May 26, 2009).*

It was immediately apparent to the officer that defendant's gun and drugs were contraband. United States v. Guzman-Cornejo, 2009 U.S. Dist. LEXIS 44191 (N.D. Ill. May 26, 2009).*

"Straight forward" request to search after defendant was told he could go was voluntary consent. State v. Evans, 9 So. 3d 767 (Fla. App. 2DCA 2009).*

Extreme nervousness, lying about activities, and shaking hands was reasonable suspicion. Thayer v. State, 2009 Ind. App. LEXIS 841 (April 24, 2009).*

Permalink 08:41:04 am, by fourth, 626 words, 1203 views   English (US)
Categories: General

CA10: Overbroad search warrant was general warrant exposing officer to civil liability

A search warrant for any evidence of crime was unconstitutionally overbroad and not limited by the affidavit. Severance was not possible. Cassady v. Goering, 2009 U.S. App. LEXIS 11736 (10th Cir. May 28, 2009):

The warrant here is ungrammatical and difficult to read in many respects. It authorized the search of the entire farm, including Mr. Cassady’s house, and the seizure of “[a]ny & all narcotics,” “[a]ny and all illegal contraband” and various specific items mostly related to a narcotics operation. See attached Ex. A. In addition, however, and most damaging to Mr. Goering’s argument, the warrant expressly permitted the search and seizure of “all other evidence of criminal activity” as well as personal property that was stolen, embezzled, or otherwise illegal; or was designed, intended, or had been used to commit a criminal offense; or would be material evidence in a criminal prosecution in Colorado or any other state; or the seizure of which was expressly required, authorized, or permitted by any Colorado statute. Id. Hence, the warrant did not confine the scope of the search to any particular crime. The officers only had probable cause to search for evidence related to marijuana cultivation, yet the warrant authorized the seizure of all possible evidence of any crime in any jurisdiction. Consequently, “[t]he warrant[] allowed precisely the kind of rummaging through a person’s belongings, in search of evidence of even previously unsuspected crimes or of no crime at all, that the fourth amendment proscribes.” Voss, 774 F.2d at 405.

The affidavit, which was incorporated by reference, does not save the warrant. See attached Ex. B. The only grounds it provides are Queen’s statement that he saw marijuana plants on the farm, and Mr. Cassady’s 1992 arrest for a marijuana-related offense. It makes no mention of the affiant’s training or expertise in narcotics investigations, and it is no more particular than the warrant, containing virtually identical language describing the items to be seized.

We cannot accept Mr. Goering’s argument that the officers understood the language permitting seizure as limited to evidence of marijuana-related activities only. We have previously invalidated warrants substantially more particularized than the one at issue here.

. . .

Mr. Goering contends “[t]here is no constitutional violation merely because of words in a warrant where there is no resulting unconstitutional search.” Aplt. Br. at 21. Even assuming the general rummaging that apparently occurred here could conceivably be characterized as a “constitutional” search, it is well-settled that “mere words” in a warrant in and of themselves can violate the Fourth Amendment. In Groh v. Ramirez, 540 U.S. 551 (2004), the Supreme Court rejected the argument that a lawfully conducted search could be reasonable under the Fourth Amendment despite an invalid warrant:

We have clearly stated that the presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant. ... The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.

Id. at 559-60 (internal quotation marks and citations omitted). Thus, Mr. Goering’s attempt to separate the authorization of the search from the execution of the search is a red herring – a violation of the warrant requirement is itself a violation of the Fourth Amendment.

. . .

Neither Mr. Goering nor the dissent point us to even one case where the severability doctrine has been applied to a warrant containing such a broad and invasive provision authorizing a search for and seizure of any and all evidence of criminal activity which is wholly unrelated to the crime for which there was probable cause. As we have stressed, severance is not appropriate in every case.

This was the officer's first search warrant application.


Permalink 11:09:29 am, by fourth, 51 words, 627 views   English (US)
Categories: General

Two new Champion articles

Two new Champion articles, in the mail today, and online in a month:

Dorothy J. Glancy, Retrieving Black Box Evidence From Vehicles: Uses and Abuses of Vehicle Data Recorder Evidence in Criminal Trials, Champion 12 (May 2009)

Marcia Hofmann, Arguing for Suppression of "Hash" Evidence, Champion 20 (May 2009) [as in computer information, hash = garbage]

Permalink 10:23:46 am, by fourth, 604 words, 521 views   English (US)
Categories: General

M.D. Pa.: Warrant for documents justified seizure of computer found at scene

Franks violation fails because, even if the omitted information was included, PC was still present. The warrant was not general because there was no unfettered discretion in the executing officers. The warrant sought documents, and finding a computer at the scene justified a seizure of the computer. United States v. Dieu Phan, 628 F. Supp. 2d 562 (M.D. Pa. 2009):

Likewise, the seizure of the computer was also justified. The search warrant authorized the seizure of documents related to Lynda Dieu Phan's business and payroll. Computers often contain documents related to business. Moreover, in this case, the computer was found in Lynda Dieu Phan's home office, in which the agents discovered many documents related to Lynda Dieu Phan's business. Under these circumstances, it follows that other documents relating to Lynda Dieu Phan's business would also be contained in the computer. Accordingly, the incriminating nature of the computer was immediately apparent, and the officers' seizure of the computer was justified.

Exigent circumstances or a warrantless in home arrest was not justified because the officers' information that the defendant would flee to another state was really thin. United States v. Perez, 2009 U.S. Dist. LEXIS 43843 (M.D. Pa. May 21, 2009):

With respect to the first point, the Court was not convinced -- as a factual matter -- that officers had a genuine concern about Defendant's potential flight to New Jersey or elsewhere that could not have been addressed by placing 510 Minor Street under surveillance pending the issuance of a warrant. Although the government produced testimony that surveilling the house was difficult given the layout and demographics of the neighborhood, the Court does not perceive how these concerns equate with concern over securing the house and area around it. Indeed, there was testimony that Corporal Harris and others spent considerable time in the neighborhood over the course of the afternoon on April 21st and while surveillance may have been compromised it does not automatically follow that officers were unable to secure the location while a warrant could be obtained, particularly as it was not clear that officers needed to maintain secret surveillance of Perez's residence as part of its plan to arrest him.

The Court well appreciates the considered judgment that law enforcement officers must exercise, particularly in fast moving investigations such as was taking place on April 20th and April 21st. Nevertheless, the Court must consider that factor among many others within the context of the facts the government developed during the evidentiary hearings. The Court ultimately found the evidence regarding Defendant's potential flight to New Jersey to be especially thin, and all the more so given Defendant's apparent ties to the area such as his home and family. Moreover, no officer testified that they were in "hot pursuit" of Defendant at any point during this investigation that might justify a warrantless arrest to prevent escape. Furthermore, the Court does not find support in the record for the assertion that officers were powerless to secure the area around 510 Minor Street pending issuance of a warrant. For all of these reasons, the Court does not find a risk of Defendant's imminent flight justified his warrantless arrest.

Court asked for briefing on the effect of Gant on the search incident at issue and concludes it has none. Defendant's obstruction during the search was a new crime, and a search incident was proper then. Also, there was PC to believe evidence would be in the car. [That doesn't necessarily make sense, does it? What's the evidence of obstruction? It does not matter in this case, but the language is troubling for the future.] United States v. Perdoma, 2009 U.S. Dist. LEXIS 43785 (D. Neb. May 22, 2009).*

Permalink 09:55:58 am, by fourth, 553 words, 386 views   English (US)
Categories: General

N.D. Ill.: Defendant who showed up at the same time as a SWAT team to execute drug SW could be detained

Defendant's detention at the scene of a search where he just showed up at that same time as fourteen officers to execute a search warrant was reasonable. Drug sales had occurred there that day. United States v. Banks, 628 F. Supp. 2d 811 (N.D. Ill. 2009):

The courts of appeals have offered several justifications for the rule that individuals who for whatever reason find themselves at the scene of an ongoing search are subject to at least a temporary detention by law enforcement officers. In Jennings, the Seventh Circuit found that in view of the entry of the defendant into the "security perimeter surrounding the apartment where the narcotics search was underway" and the "elevated risk of violence during a search for narcotics," the officers "were reasonably concerned for their own and for [the defendant's] safety, as well as for any activity that might compromise the search." 544 F.3d at 818. Echoing the Seventh Circuit's views, the Tenth Circuit has held that officers may detain individuals "whose presence at the scene raised a concern about interference with the search." Sanchez, 555 F.3d at 918. The Sixth Circuit also has pointed to concerns about the defendant's own safety as a factor justifying detention of an individual who approached a house in which armed officers were in the process of executing a search warrant. Bohannon, 225 F.3d at 617. And the Third Circuit, too, has found it "entirely reasonable" for officers to detain persons "standing in the middle of [a drug] raid," at least "until the situation [is] under control." Baker, 50 F.3d at 1191. As the Seventh Circuit summarized, "the officers' interest in maintaining control inside their security perimeter until the SWAT team secured the targeted apartment for the search far outweighed [the defendant's] interest in being left alone for the few moments that he was detained." Jennings, 544 F.3d at 819.

The timing of an individual's appearance on the scene of an ongoing police operation also bears on the reasonableness of the officers' actions. In each of the most analogous decisions discussed by the parties in their briefs and at the hearing, the courts have agreed that persons who are present as the execution of the warrant commences are subject to at least temporary detention. See Jennings, 544 F.3d at 818-19; Bohannon, 225 F.3d at 617; Baker, 50 F.3d at 1190 (upholding detention of defendant who arrived on the scene "just as the police were initiating a drug raid"). Even Judge Batchelder, who dissented in Bohannon, agreed that authorities lawfully may "detain all persons who are on the premises to be searched when the police execute a search warrant." 225 F.3d at 618 (Batchelder, J., dissenting). However, she felt that the detention was unlawful on the facts of that case because the defendant "arrived after the search had been substantially completed" and "the police already had complete control of the situation, many of the officers had already left the scene, and all that remained was the final paperwork." Id.

On the basis of the decisions cited above, the Court has no difficulty in concluding that the temporary detention of Defendant on the porch of a residence where fourteen armed police officers were about to execute a valid narcotics search warrant comported with the Fourth Amendment. The Defendant arrived contemporaneously with the officers at a location where drug deals had taken place that very day.


Permalink 07:41:36 am, by fourth, 64 words, 374 views   English (US)
Categories: General

E.D.Tenn.: No IAC for not challenging a search with PC

Defense counsel was not ineffective for not challenging the search of defendant's car because the officer had probable cause to believe the car contained contraband. [The court notes Gant "calls into question the continued viability of New York v. Belton" but does not have to decide that.] Mark v. United States, 2009 U.S. Dist. LEXIS43579 (E.D. Tenn. May 20, 2009).*

[This is it for today]


Permalink 05:41:36 am, by fourth, 414 words, 497 views   English (US)
Categories: General

AR: While exclusionary rule does not generally apply to revo proceedings, it can apply to bad faith searches to revoke

While the exclusionary rule generally does not apply to revocation proceedings, a bad faith probation search can apply the exclusionary rule. Sherman v. State, 2009 Ark. 275, 308 S.W.3d 614 (2009):

Today, we take the opportunity to hold, as we suggested by way of dicta in Dabney, that the exclusionary rule does not apply to revocation hearings unless the defendant demonstrates that the officers conducting the search acted in bad faith. We refer to the exception as a bad-faith exception so that it is not confused with the Leon good-faith exception, which has no application in revocation proceedings. Further, we make no distinction between the different types of revocation proceedings and hold that the bad-faith exception applies to all revocation proceedings.

In Dabney, the court perceived no bad faith on the part of the police where "it [did] not appear that the officers were primarily seeking revocation." 278 Ark. at 377, 646 S.W.2d at 4. Other examples of bad faith include cases involving harassment by the police, United States v. Farmer, 512 F.2d 160 (6th Cir. 1975), and official misconduct that shocks the conscience of the court. People v. Williams, 186 Colo. 72, 525 P.2d 463 (Colo. 1974).

We now consider whether the bad-faith exception applies in the instant case. The circuit court found that there was no evidence before the court that the officers conducting the search were aware that Sherman was subject to a term of suspended imposition of sentence. Sherman does not challenge that finding. Further, there is no evidence that the officers conducted the search for the purpose of harassment. Nor is there evidence of official misconduct that shocks the conscience of the court. We hold that the circuit court did not err in concluding that the exclusionary rule was inapplicable at the revocation hearing. Sherman failed to demonstrate that the officers acted in bad faith. The circuit court did not err in denying Sherman's motion to suppress.

RS supported defendant's detention on the highway because the rental contract restricted driving to CA and NV and he was in KS, and his travel plans were "implausible." United States v. Duenas, 2009 U.S. App. LEXIS 10857 (10th Cir. May 21, 2009) (unpublished).*

Defendant was free to go after his warning ticket was written, but he agreed to stay and talk to the officer, and that was by consent. United States v. Gallardo-Gonzalez, 2009 U.S. App. LEXIS 10899 (4th Cir. May 22, 2009) (unpublished).*

Parole officers initiated defendant's detention, and it did not violate the Fourth Amendment to have LEOs participate. United States v. Scott, 566 F.3d 242 (1st Cir. 2009).*


Permalink 11:15:34 pm, by fourth, 333 words, 380 views   English (US)
Categories: General

OH9: "The stronger an officer's suspicion, the longer a detention can be before it becomes unreasonable."

The strong the RS, the longer the officer can take to get a dog there for a sniff. State v. French, 2009 Ohio 2342, 2009 Ohio App. LEXIS 1983 (9th Dist. May 20, 2009):

The stronger an officer's suspicion, the longer a detention can be before it becomes unreasonable. Having reviewed the totality of the circumstances, this Court concludes that Officer Cirullo's investigation was diligent, that he used the least intrusive means reasonably available to confirm or dispel his suspicions, and that he did not detain the Frenches for an unreasonable amount of time to wait for the K-9 unit to arrive.

Defendant was patted down and the officer felt his ID card. The officer asked for the ID card which had a different name than the name he gave when stopped. Producing the card was acquiescence to a claim of authority. Johnson v. State, 297 Ga. App. 847, 678 S.E.2d 539 (2009).*

Reasonable suspicion that defendant probationer was in a vehicle was reason to stop it when defendant was subject to stops and searches. State v. Hedgecock, 2009 Ida. App. LEXIS 60 (May 14, 2009).*

Emergency aid doctrine permitted an entry based on the officer's response to a fight in progress. [This is thin, but sufficient.] State v. Baker, 2009 Ohio 2340, 2009 Ohio App. LEXIS 1995 (9th Dist. May 20, 2009)*:

1) Officer Wood's experience led him to believe that the informant's report of a fight at the home was accurate based on Baker's agitation and behavior; 2) the officer was aware that people fleeing the home had prior criminal records; 3) Baker admitted there had earlier been a fight on the property despite his initial denial; 4) the officer heard sounds coming from the home; and 5) the officer only saw males in and around the property although the informant reported, and Baker admitted, that the fight involved women. Accepting these facts as true, the trial court did not err by concluding that Officer Wood had objectively reasonable grounds to believe that there was a woman inside the house who had been injured in the fight and was in need of emergency aid.

[Posted 5/26/09]

Permalink 11:00:41 pm, by fourth, 232 words, 516 views   English (US)
Categories: General

WY: Failing to provide a basis for state constitutional review of RS, the court considers it under the Fourth Amendment

In raising a state constitutional challenge to a search and seizure, defendant has to "'provide a precise, analytically sound approach when advancing' such a claim." Feeney v. State, 2009 WY 67, 2009 Wyo. LEXIS 63 (May 21, 2009):

[*P11] The appellant raises his claim under both the Fourth Amendment to the United States Constitution and Article 1 § 4 of the Wyoming Constitution. We have said that when a litigant endeavors to interpret the Wyoming Constitution independent of the Federal Constitution, the litigant "must provide a precise, analytically sound approach when advancing" such a claim. Vasquez v. State, 990 P.2d 476, 484 (Wyo. 1999) (citing Dworkin v. L.F.P., Inc., 839 P.2d 903, 909 (Wyo. 1992)). Six factors must be analyzed when a separate state constitutional claim has been raised: 1) the textual language; 2) the differences in the text; 3) constitutional history; 4) preexisting state law; 5) structural differences; and 6) matters of particular state or local concern. Saldana v. State, 846 P.2d 604, 621-24 (Wyo. 1993) (Golden, J., concurring).

[*P12] The appellant's attempt to present an independent state constitutional claim falls short. Although he mentions the above-cited factors, he fails to analyze any of them, or even generally describe how Article 1 § 4 might provide him greater protection than the Fourth Amendment. We will therefore confine our analysis to the Fourth Amendment.

Here, defendant "falls short" in his argument. Reasonable suspicion was provided by defendant's excessive nervousness and the clear differences between the car rental agreement and his travel plans which made no sense.

[Posted 5/26/09]


Permalink 11:11:46 am, by fourth, 167 words, 475 views   English (US)
Categories: General

N.D. Okla.: Claimant has a right to timely return of money seized without evidentiary value

Plaintiff states a claim for failure to return money lawfully seized but without evidentiary value. Springer v. Horn, 2009 U.S. Dist. LEXIS 43072 n.2 (N.D. Okla. May 20, 2009):

The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures. Winters v. Board of County Commissioners, 4 F.3d 848, 853 (10th Cir. 1993), citing Soldal v. Cook County, Illinois, 506 U.S. 56, 61 (1992). A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property." Winters, 4. F.3d at 853, citing Soldal, 506 U.S. at 61. The Tenth Circuit has held that a failure timely to return seized material which is without evidentiary value and which is not subject to forfeiture may state a constitutional or statutory claim. Davis v. Gracey, 111 F.3d 1472, 1477 (10th Cir. 1997).

Defendant got a Franks hearing, but he failed in his burden of proof "[i]n light of the strong presumption that search warrant affidavits are valid." United States v. Hazelrigg, 2009 U.S. Dist. LEXIS 43022 (D. S.D. February 2, 2009).*

Permalink 11:10:17 am, by fourth, 486 words, 612 views   English (US)
Categories: General

FL2: Trial court imposed too high a burden of consent on state in knock-and-talk

Circuit court erred in requiring the state to have a tip for a knock-and-talk and not a hunch. This raised the burden of proof. State v. Navarro, 19 So. 3d 370 (Fla. App. 2d DCA 2009):

Furthermore, the policy behind knock-and-talk encounters supports this conclusion. The rationale for a knock and talk is that

[a]bsent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's 'castle' with the honest intent of asking questions of the occupant thereof--whether the questioner be a pollster, a salesman, or an officer of the law.

Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964). "Thus, '[o]fficers are allowed to knock on a residence's door or otherwise approach the residence seeking to speak to the inhabitants just a[s] any private citizen may.'" United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006) (first alteration in original) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 519 (3d Cir. 2003)). The circuit court's ruling conflicts with the proposition that police officers may approach a residence and speak to the residents just as any private citizen may. Thus the circuit court fell into error when it ruled that the knock-and-talk encounter at issue in this case amounted to illegal police conduct.

Our conclusion about the legality of the knock-and-talk encounter brings us to the question of the standard of proof applicable to the determination of the voluntariness of the consent search:

Where the state asserts it had the right to search ... despite the absence of a warrant because the defendant consented to the search, the state has the burden to prove that consent was freely and voluntarily given. The burden of proof in these cases depends on whether there is invalid police conduct prior to obtaining the consent. "Under ordinary circumstances the voluntariness of the consent to search must be established by preponderance of the evidence." With invalid police conduct like prolonged detention, threats to obtain a warrant, or repeated requests for consent, the burden of proof is elevated to the clear and convincing standard.

Dormezil v. State, 754 So. 2d 168, 169 (Fla. 5th DCA 2000) (citations omitted) (quoting Denehy v. State, 400 So. 2d 1216, 1217 (Fla. 1980)). Here, the circuit court applied the clear and convincing evidence standard of proof because it found illegal police conduct based on its erroneous interpretation of the law concerning knock-and-talk encounters. But based on our conclusion above and because the knock and talk was not otherwise illegal, the appropriate standard of proof was preponderance of the evidence. Accordingly, we reverse the circuit court's order and remand for reconsideration of the motion to suppress under the proper standard of proof. See State v. T.L.W., 783 So. 2d 314, 317 (Fla. 1st DCA 2001).


Permalink 08:02:53 am, by fourth, 383 words, 579 views   English (US)
Categories: General

ID: Stopping for emergency lights is a seizure

A person who stops for an officer's emergency lights has been seized. "Willoughby's actions of remaining at the scene and stepping out of his car as Officer Gillmore approached constituted submission to the officers' show of authority. Accordingly, we conclude that the trial court and district court properly concluded that Willoughby was seized for purposes of the Fourth Amendment." The court follows and quotes State v. Morris, 72 P.3d 570 (Kan. 2003):

Where there is neither force nor obvious words or actions of submission, some courts have applied the Mendenhall approach without reference to Hodari. E.g., United States v. Buchanon, 72 F.3d 1217 (6th Cir. 1995). Other courts have determined that the individual's inaction, albeit passive, is a form of compliance and a submission to authority. E.g., Lawson, 120 Md.App. at 617-18, 707 A.2d 947 ....

We join this line of cases in terms of outcome, doing so by following the line of cases which hold that Hodari, and in this state our decision in [State v. Weaver, 915 P.2d 746 (1996)], requires a finding that the accused submitted to the show of authority. In this case, Morris did not attempt to leave when officers pulled in behind him with their emergency lights flashing. Upon seeing the flashing emergency lights of the officer's patrol car, Morris complied with the officer's "show of authority" enjoining him to remain. He did not flee; instead, he complied with the assertion of authority. We find that Morris was seized within the contemplation of the Fourth Amendment to the United States Constitution ....

This stop was without reasonable suspicion. State v. Willoughby, 211 P.3d 91 (Ida. 2009).*

Postal employee impliedly consented to search of his car by driving it on to post office property. He was aware that could happen. United States v. Collamore, 2009 U.S. App. LEXIS 10691 (10th Cir. May 19, 2009).*

Government showed that defendant consented to a search of his property and there was no language barrier because they talked to him about various things which he understood before consent was sought. United States v. Huraibi, 2009 U.S. Dist. LEXIS 42904 (W.D. N.Y. May 21, 2009).*

Passing reference to voluntariness in a motion to suppress was not IAC because counsel probably focused more on the other issues, in light of the presumption of competence of counsel. Bustamante v. United States, 2009 U.S. Dist. LEXIS 42935 (N.D. Ill. May 21, 2009).*


Permalink 05:16:29 am, by fourth, 342 words, 550 views   English (US)
Categories: General

D.S.C.: Officer making stop on reasonable suspicion defendant was in a drug deal could ask about guns

Officers with reasonable suspicion when confronting the defendant about a drug deal they stopped him for could ask him about whether he had a gun without Mirandizing him. Drug dealers often have guns, and guns are dangerous. United States v. Sinclair, 2009 U.S. Dist. LEXIS 42542 (D. S.C. May 18, 2009):

The proposition that drug trafficking is highly linked with dangerous weapons and violence involving such weapons is so obvious and well-established that this Court need give no further enumeration or proof of its veracity. In the present case, as explained above, law enforcement had reasonable suspicion that Defendant had a large quantity of marijuana in his automobile, and intended to sell a large quantity of marijuana to the informant. Given the well-established link between drug trafficking and gun violence, law enforcement therefore also had reasonable suspicion that Defendant was armed and dangerous. To hold otherwise would constantly put law enforcement officials in situations where they would be investigating and questioning suspected drug dealers who would be afraid of being apprehended and eventually punished, but who could very well have weapons on their persons. Such situations would undoubtedly lead to violence against law enforcement officers.

Accordingly, asking Defendant if he had any weapons on his person, and the subsequent taking of the gun into custody, was lawful, and the Court denies Defendant's Motion to Suppress this evidence.

Officer's stop of what he thought was a suspicious person leaving a house was without any factual support and lacked reasonable suspicion. That stop led to a dog sniff. United States v. Molina, 626 F. Supp. 2d 1073 (D. Idaho 2009).*

A 911 call came from a library patron advised that the defendant was looking at child pornography in a library. Based on all the factors available to the officer, he had reason to talk to defendant who had a computer and looked furtively when the officer came in. When confronted, he said that the officers should "give him a break" because he was "sick." This was reasonable suspicion. United States v. Talley, 2009 U.S. Dist. LEXIS 42682 (W.D. Va. May 19, 2009).*


Permalink 05:47:13 am, by fourth, 573 words, 393 views   English (US)
Categories: General

M.D.Fla.: Coming out of a house under surveillance was not RS; officers had utterly no facts of wrongdoing by anybody

Defendants came out of a house under surveillance for suspected drug activity overnight, but the officers had no PC as to the house. The mere fact of coming out of the house in the early morning hours is not reasonable suspicion of anything. They lacked any facts of a suspected crime. United States v. Traviesa, 2009 U.S. Dist. LEXIS 41595 (N.D. Fla. May 6, 2009):

Because the officers suspected criminal activity was being conducted inside of the 6550 residence, they decided to conduct surveillance on the location. However, the mere fact that the occupants of the car emerged from a house which was suspected of being involved in narcotics activity is insufficient to provide reasonable suspicion that criminal activity involving these particular Defendants was afoot. ...

There is a dearth of evidence to support reasonable suspicion that criminal activity involving these Defendants or this truck was underway. There was no search warrant issued for the 6550 residence or property. There was no evidence that contraband had been moved from the house to the truck. In fact, officers testified that as they drove by the truck, there was nothing inside the truck bed. This was not a high crime area. The time that the Defendants were spotted leaving the house was not in the middle of the night or in the very early morning hours when people engaged in criminal activity may try to conceal their actions. There is no evidence that the windows of the truck were tinted or that the drivers tried in any way to avoid detection. There is no evidence that the Defendants saw the officers from the inside of the house and left in order to evade capture. No informant contacted police and told them that criminal activity was taking place in the 6550 residence. No informants had identified these Defendants as people involved in criminal activity. The connection between the occupants of the 6550 and the occupants of the other marijuana grow operations was tenuous, at best. Officers' testimony indicated that but for the decision by the Marion County officers to take down another house in the investigation, the officers would not have stopped the Defendants in the truck.

On similar facts to the above, officers tailed the car and made a traffic stop and then lawfully fished around for consent. State v. Corley, 383 S.C. 232, 679 S.E.2d 187 (2009).*

Officers listened to defendants in a hotel room by putting their ear to the common door between them, but that was not unreasonable, and defendant lacked standing to contest the entry since he was there for drug dealing as a temporary guest. The co-defendant argued that the warrantless entry into his hotel room was unreasonable, but the court finds that it does not have to decide that question because there was a search warrant with an independent source. United States v. Hearn, 563 F.3d 95 (5th Cir. 2009).*

Plaintiff, a female truck driver, was arrested for disorderly conduct for giving the finger to a truck stop security guard after he accused her of being a prostitute. She was pulled out of her truck and left standing in the parking lot wearing only panties for 20 minutes, and she was driven to jail without any other clothes. While there was at least PC for the arrest, she stated a claim for the actions of making her stand in the parking lot and taking her to jail undressed. Green v. City of Texarkana, 2009 U.S. Dist. LEXIS 41979 (W.D. Ark. May 14, 2009).*


Permalink 07:55:13 am, by fourth, 273 words, 459 views   English (US)
Categories: General

LA5: Girlfriend's address parolee gave as his address, which was not the official one on file, could be searched by PO

Defendant's telling his PO that he lived with his girlfriend, even though it was not the official address on the agency records, was sufficient to search that place as his under the parole exception. State v. Bolden, 13 So. 3d 1168 (La. App. 5th Cir. 2009).

Valid traffic stop and smell of burnt marijuana justified search of tow truck defendant was driving. State v. Savoie, 15 So. 3d 207 (La. App. 5th Cir. 2009).*

Officer had reasonable suspicion without a mistake of law for the stop of the defendant. (Court elaborates on mistake of law and reasonable suspicion.) State v. Hubble, 2009 NMSC 14, 146 N.M. 70, 206 P.3d 579 (2009), released for publication April 28, 2009.*

Citizen informant's face-to-face tip to officer that defendant was drinking and driving provided reasonable suspicion for defendant's stop even though the officer did not get the man's name. State v. Satter, 2009 SD 35, 766 N.W.2d 153 (2009):

[*P21] In the totality of these circumstances, given the increased reliability of face-to-face tips, the precise identification of the van, the strong basis of the tipster's knowledge, the immediacy with which he reported his observations, the lack of facts left to corroborate, and the minimal intrusion of a vehicle stop on the occupants' liberty compared to the potential, imminent threat of the observed behavior, this tip was sufficiently reliable to create reasonable suspicion.

Defendant's stop was based on first hand reliable information from a CI with a record of past performance that was timely. Perez v. State, 295 S.W.3d 681 (Tex. App.–Amarillo 2009).*

Sole proprietor a medical P.A. could bring a claim for seizure of its records. Lewis v. Okla. State Bd. of Chiropractic Examiners, 2009 U.S. Dist. LEXIS 41445 (W.D. Okla. May 15, 2009).*

Permalink 06:59:54 am, by fourth, 752 words, 730 views   English (US)
Categories: General

MA: Detention to run warrants without RS was unreasonable

FIO (Field Interrogation Observation) amounted to a stop and a seizure when the officers retained defendant's ID without reasonable suspicion to run a warrant check. Commonwealth v. Lyles, 453 Mass. 811, 905 N.E.2d 1106 (2009):

In a case that is factually analogous to the present one, the Supreme Court of Tennessee in State v. Daniel, 12 S.W.3d 420, 427-428 (Tenn. 2000), concluded that a defendant was seized within the meaning of the Fourth Amendment to the United States Constitution and art. I, § 7, of the Tennessee Constitution when, after requesting and examining the defendant's identification, a police officer retained the identification to run a computer check for outstanding warrants. The court stated that the officer's conduct in merely approaching the defendant, inquiring what was going on, and asking to see his identification did not constitute a seizure because it appeared that this encounter was not accompanied by physical force or a show of authority. Id. at 427. It was the officer's retention of the defendant's identification to run a computer check for outstanding warrants that, in the court's view, transformed a consensual police-citizen encounter into a seizure of the defendant. Id. The Supreme Court of Tennessee cogently recognized, as do we here, that an individual is effectively "immobilized" without his identification, and that abandoning one's identification is not a practical or realistic option. Id. As such, the court opined, no reasonable person would believe that he could simply terminate the encounter by asking the officer to return the identification. Id. See United States v. Jordan, 958 F.2d 1085, 1087-1088, 294 U.S. App. D.C. 227 (D.C. Cir. 1992) (holding that, for purposes of Fourth Amendment, retention of defendant's driver's license during police questioning constituted seizure); People v. Mitchell, 355 Ill. App. 3d 1030, 1034-1035, 824 N.E.2d 642, 291 Ill. Dec. 786 (2005) (concluding that officer's retention of defendant's identification to run computer warrant check following consensual police-citizen encounter constituted seizure within meaning of Fourth Amendment); Salt Lake City v. Ray, 998 P.2d 274, 278, 2000 UT App 55 (Utah Ct. App. 2000) (same). See also 4 W.R. LaFave, Search and Seizure § 9.4(a), at 428 & n.81 (4th ed. 2004) (collecting cases where encounter becomes seizure when law enforcement official holds individual's identification papers or other property).

Here, what began as a consensual police-citizen encounter matured into a seizure of the defendant, with respect to which the officers lacked reasonable suspicion of criminal activity. Given that Officer O'Connor's knowledge of the outstanding warrant was the fruit of the defendant's unlawful seizure, the evidence recovered from the defendant during the booking procedure must be suppressed, as required by art. 14. See note 1, supra. See also Commonwealth v. Borges, 395 Mass. 788, 795, 482 N.E.2d 314 (1985). Accordingly, we affirm the order allowing the defendant's motion to suppress.

Officer came to the defendant's door in Minnesota and smelled burning marijuana from smoking. When the door was answered and he asked about it, it was admitted that they were smoking marijuana inside. Even though the officer did not articulate it, the entry was justified by exigent circumstances for destruction of evidence. He told the woman on the couch to get up, and she didn't. Later, a gun was found in the couch, and it was linked to a murder in Louisiana. State v. Robinson, 2009 La. App. LEXIS 802 (4th Cir. May 13, 2009)* (no conflict of laws issue in this case).

Defendant was arrested for murder while driving his car, and officers found a note in the car which could be seen through the window which was pertinent to the investigation, so it could be seized under the plain view doctrine. State v. Bauman, 15 So. 3d 177 (5th Cir. 2009).*

Second protective sweep 15-20 minutes after first one ended was not objectively reasonable. While a "one sweep rule" is not the law, there must be an objective basis for the second sweep, and here there was none. Commonwealth v. Peters, 453 Mass. 818, 905 N.E.2d 1111 (2009):

There undoubtedly are circumstances in which two warrantless protective sweeps of a home in quick succession, one rapid without attention to detail to locate a potential assailant or assailants, and the second more deliberate in search of persons who may be injured, would both fall within the permissible scope of the emergency aid exception. We do not declare a "one sweep rule" through this decision. A second warrantless protective sweep may be lawfully conducted but only when, in light of all the circumstances known to the officers at the time, there continues to be an objectively reasonable basis to believe that there is someone in the home in need of assistance. We simply do not find that there continued to be an objectively reasonable basis here.


Permalink 07:43:33 am, by fourth, 212 words, 2790 views   English (US)
Categories: General

CNN: More on virtual strip search by airport screening

CNN posted an article yesterday afternoon about an effort to stop body scans at airports being virtual strip searches. Airport security bares all, or does it?:

Privacy advocates plan to call on the U.S. Department of Homeland Security to suspend use of "whole-body imaging," the airport security technology that critics say performs "a virtual strip search" and produces "naked" pictures of passengers, CNN has learned.

The national campaign, which will gather signatures from organizations and relevant professionals, is set to launch this week with the hope that it will go "viral," said Lillie Coney, associate director of the Electronic Privacy Information Center, which plans to lead the charge.

"People need to know what's happening, with no sugar-coating and no spinning," said Coney, who is also coordinator of the Privacy Coalition, a conglomerate of 42 member organizations. She expects other groups to sign on in the push for the technology's suspension until privacy safeguards are in place.

I was traveling through security with a friend from a lawyers meeting, and one of the lines had one of these machines, and we talked about it up to the boarding pass check, and the TSA guy said I was wrong about what it would show.

My last post on backscatter technology was here in February.

Permalink 07:20:35 am, by fourth, 423 words, 505 views   English (US)
Categories: General

MD: "Detroit Lean" not RS

Defendant was stopped because he was driving with a "Detroit Lean", but that was indicative of nothing criminal. The stop was without reasonable suspicion. The officer thought it was to divert attention from himself, but it more likely was the opposite. Crosby v. State, 970 A.2d 894 (Md. 2009).

Officers went to defendant's hotel room to do a knock and talk, and he saw them coming and tried to flush his drugs. The officers entered to get the evidence. They lacked probable cause for the entry. State v. Hoffman, 293 S.W.3d 633 (Tex. App. – San Antonio 2009).*

T.L.O. governs searches of cars on school parking lot, following State v. Best, 959 A.2d 243 (N.J. Super. 2008). State v. Schloegel, 2009 WI App 85, 319 Wis. 2d 741, 769 N.W.2d 130 (2009).

Evidence supported the trial court's finding of consent. Floyd v. State, 297 Ga. App. 736, 678 S.E.2d 181 (2009).*

Police received an anonymous call of a weaving car, and the stop was unwarranted because there was not corroboration of the informant. State v. Peele, 2009 N.C. App. LEXIS 507 (May 5, 2009):

Similarly, in this case, the anonymous caller accurately described the car's physical characteristics and location, but did not give the police any way to test the caller's credibility. The record contains no information about who the caller was, no details about what the caller had seen, and no information even as to where the caller was located. The caller did not "predict defendant's specific future action," Hughes, 353 N.C. at 208, 539 S.E.2d at 631, other than that he was driving from one stoplight to the next. Id. at 210, 539 S.E.2d at 632 (holding that confirmation that defendant was heading in general direction indicated by tipster "is simply not enough detail in an anonymous tip situation").

Moreover, Sergeant Sullivan "did not seek to establish the reliability of the assertion of illegality." Id. at 209, 539 S.E.2d at 632. He observed defendant at the stoplight and making the turn. He then followed him for no more than a tenth of a mile. During that time, he saw defendant one time "float[]" over to touch the dotted line and then move over to touch the fog line. The officer agreed that he "never saw any operation at all [of defendant's vehicle] that was consistent with careless or reckless operation of the vehicle[.]" The officer thus did not corroborate the caller's assertion of careless and reckless driving. We, therefore, do not believe that this case can be meaningfully distinguished from McArn and, consequently, the anonymous tip lacked sufficient reliability standing alone to provide reasonable suspicion for the stop.

Permalink 07:02:04 am, by fourth, 411 words, 443 views   English (US)
Categories: General

TX12: Handing over phone to "can I look at your cell phone?" was consent to look at photos on phone

Officers were told that defendant was communicating with a 14 year old girl, and they went to talk to him. They asked if they could look at his cell phone, and he turned it over. One officer hit the camera button and looked at the photographs on it. Defendant consented to a search of the cell phone. Lemons v. State, 298 S.W.3d 658 (Tex. App.–Tyler 2009):

We have reviewed the record as it pertains to Appellant's giving consent. The epicenter of our inquiry is Thornhill's request to Appellant that he be allowed to examine Appellant's cellular telephone and Appellant's nonverbal response of simply handing his cellular telephone to Thornhill. There is no indication from the record that would allow a reasonable person to conclude that Appellant intended to shape the confines of his forthcoming consent by the subject matter of the conversation between him and Thornhill in the moments preceding Appellant's relinquishment of his cellular telephone to Thornhill. Instead, it is reasonable to conclude that Appellant's surrender to Thornhill of his cellular telephone in response to Thornhill's open ended request implied Appellant's grant of equally unbridled consent for Thornhill to examine the phone and the information contained therein. See, e.g., Cannon v. State, 29 F.3d 472, 477 (2d Cir.1994) (holding that defendant's answer to "go ahead" and look in car justified search of trunk). Moreover, Appellant's failure to object to Thornhill's continued search of his phone after bestowing on him such general consent to search was an indication that Thornhill's search was within the scope of Appellant's initial consent. See id.

In sum, the State was required to prove by clear and convincing evidence that Appellant's consent to a search of his cellular telephone was unequivocal; in other words, that Appellant's expression of consent was, viewed in the totality of the circumstances, capable of only one reasonable interpretation. See Reasor, 12 S.W.3d at 818; Allridge, 850 S.W.2d at 493. Having applied a deferential standard of review to the trial court's determination of historical facts, we conclude that a reasonable person could have interpreted Appellant's handing his cellular telephone to Thornhill in response to Thornhill's open ended request as an unlimited consent to examine the information contained therein. See Mendoza-Gonzalez, 318 F.3d at 667. Therefore, we hold that the trial court acted within its discretion by finding that the State proved by clear and convincing evidence that Thornhill's search of Appellant's cellular telephone was within the scope of Appellant's consent. Appellant's sole issue is overruled.


Permalink 07:52:33 am, by fourth, 1023 words, 707 views   English (US)
Categories: General

W.D. Pa.: Wecht warrant overbroad and motion to suppress granted

Search warrant for business records in the ongoing Dr. Wecht case in Pittsburgh was overbroad and not particular enough for the Fourth Amendment. Because he was permitted a private practice while acting as ME, there was no meaningful limitation on the seizure of records. The affidavit also was not incorporated into the warrant. Moreover, the defendant was unable to determine what was to be seized. United States v. Wecht, 619 F. Supp. 2d 213 (W.D. Pa. 2009):

Our Circuit Court of Appeals has instructed that "the breadth of items to be searched depends upon the particular factual context of each case and also the information available to the investigating agent that could limit the search at the time the warrant application is given to the magistrate." ACEF, 461 F.3d at 395 (interpreting the holdings of United States v. Leary, 846 F.2d 592 (10th Cir.1988); United States v. American Investors of Pittsburgh, 879 F.2d 1087 (3d Cir.1989); and United States v. Kepner, 843 F.2d 755 (3d Cir.1988)). Accord United States v. Adjoin, 452 F.3d 1140, 1148 (9th Cir. 2006) (in determining whether a warrant is sufficiently particular, court will consider, among other things, whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued."). Accordingly, "the use of generic classifications in a warrant is acceptable when a more precise description is not feasible." Christine, 687 F.2d at 760 (citing cases).

Here, however, the Government was possessed of information which, had it been incorporated into the warrant, would have substantially clarified the description of items to be seized so as to focus the executing officers' attention on the actual target of the search -- the boxes of private autopsy files that had been removed from the ACCO. The omission of this information resulted in a warrant whose description was simply too vague to meaningfully guide the officers' search.

Notwithstanding these problems, the Government vigorously disputes the Defendant's characterization of the Penn Avenue Warrant as a general warrant based on what the Government views as two important search criteria: content and number. That is, the face of the warrant informed the officers that they were looking only for boxes that held private autopsy files and, moreover, the officers could seize only "approximately twenty" such boxes. These limitations, the Government insists, are significant enough that the Penn Avenue Warrant should be considered, at most, overbroad, but not general, since the warrant did not allow the officers unlimited discretion to seize anything within the premised that they wished.

I do not find this theory persuasive, however. As I have discussed above, the requirement that the boxes had to contain private autopsy files is not a particularly meaningful limitation, given that the location of the search was the Defendant's private pathology office -- a place where boxes of private autopsy files would likely exist in substantial numbers. See United States v. Abrams, 615 F.2d 541, 546 (1st Cir. 1980) (limitation in a warrant seeking the seizure of business records must be a meaningful one).

Furthermore, as I have observed, and as the Government candidly acknowledged at argument, the numerical caveat ("approximately twenty boxes") provides no basis for differentiating between those boxes removed from ACCO and other boxes of private autopsy files likely to be found on the premises. At the end of the day, an officer executing this warrant would not be able to determine with reasonable certainty which items were being sought and would essentially have to guess which boxes (and how many, for that matter) to seize. 11 The warrant thus facially authorized government agents to rummage through a substantial volume of the Defendant's work product and decide for themselves what to take. The violation of the Defendant's Fourth Amendment rights in this respect is not mitigated by the mere fact that the governmental intrusion encompassed only the universe of boxes containing the Defendant's private autopsy files rather than the entire content of his business office. The scope of the search, as authorized by the warrant, was still unreasonable.

. . .

. . . One Pennsylvania court has described the distinction between generality and overbreadth as follows:

These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity authorizes a search in terms so ambiguous as to allow the executing officers to pick and choose among an individual's possessions to find which items to seize. This will result in the general "rummaging" banned by the fourth amendment. See Macron v. United States, 275 U.S. 192, 195, 48 S. Ct. 74, 75, 72 L.Ed. 231 (1927). A warrant unconstitutional for its overbreadth authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime under investigation. The officers executing such a warrant will not rummage, but will "cart away all documents." Application of Lafayette Academy, 610 F.2d 1, 3 (1st Cir.1979).

Commonwealth v. Santner, 454 A.2d 24, 25 n.2 (Pa. Super. 1982).

Here, the defect in the Penn Avenue Warrant cannot properly be characterized as one of overbreadth, as we are not confronting a situation where officers, armed with a clear and specific warrant, seized all of the items within certain particularly described categories, only to discover that probable cause did not support such a broad seizure. Rather, the fundamental problem with the Penn Avenue Warrant is that, by its terms, the warrant failed to give the executing officers sufficient direction as to which items were to be seized in the first place. See United States v. Sirmans, No. 07-2370, 278 Fed. Appx. 171, 172, 2008 WL 2127448 at **1 (3d Cir. May 8, 2008) ("To be sufficiently particular, the Fourth Amendment requires the warrant to describe items to be seized in a way that the officer conducting the search can identify them with reasonable effort.") (citations omitted).

Just as important, the warrant failed to adequately inform the Defendant (or those representatives of his who were present) of the scope of the authorized search. See Groh, 540 U.S. at 561 (A particular warrant also "assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.") (citations omitted). The problem here, in other words, is not one of over-inclusiveness but of ambiguity.

Permalink 07:39:39 am, by fourth, 539 words, 662 views   English (US)
Categories: General

D.C.Cir.: DOT regulation requiring observation of urine test to prevent cheater satisfied Fourth Amendment

"Under Department of Transportation regulations, employees in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries who either fail or refuse to take a drug test must successfully complete a drug treatment program and pass a series of urine tests as a condition of performing any safety-sensitive duties. To prevent cheating, the Department modified its regulations in 2008 to require that such tests be conducted under direct observation. Petitioners, a railway company and several transportation unions, challenge the revised regulation, arguing that it violates both the Administrative Procedure Act and the Fourth Amendment. For the reasons set forth in this opinion, we find the Department's considered justification for its policy neither arbitrary nor capricious, and although we recognize the highly intrusive nature of direct observation testing, we conclude that the regulation complies with the Fourth Amendment." BNSF Ry. Co. v. United States DOT, 566 F.3d 200 (D.C. Cir. 2009).

Turning on lights to effect a stop is not per se a seizure. It has to be based on the totality. Here, it was. "It is instructive that Gallegos candidly testified that, if Ceballos had attempted to drive away when Gallegos engaged his lights and pulled up behind him, Gallegos would have chased him down and arrested him." The officer admitted that he only had a hunch for the stop. Defendant's statements were the product of an unreasonable stop. United States v. Ceballos, 2008 U.S. Dist. LEXIS 108725 (D. N.M. December 24, 2008).* (Note: Whenever I had an indication from the prosecution that the stop was not a "seizure," I just asked the officer on the stand: "If Mr. X had not stopped for you, what would you have done?" That always elicited a response that the defendant was not free to leave.)

Defendant's driving pattern added to reasonable suspicion. He sped up to try to get away from the officer, but then slowed down so he could pass, all on a slippery road. There were five Hispanic men in a vehicle on an alien smuggling corridor. In addition, the men ignored the officer's efforts to get their attention while driving next to them. United States v. Bautista-Silva, 567 F.3d 1266 (11th Cir. 2009).

Search of defendant's vehicle was justified by consent or the automobile exception with probable cause. United States v. Loera, 2009 U.S. App. LEXIS 10278 (7th Cir. May 15, 2009).*

Under the automobile exception, officers did not need a warrant for seizure of a vehicle on probable cause. The fact they had time to get a warrant does not matter because a warrantless seizure was permissible. United States v. Bautista, 2009 U.S. Dist. LEXIS 40939 (W.D. Wash. April 29, 2009):

Finally, defendant contends that the seizure of the Volvo was improper because defendant had already been placed in custody and removed from the scene. Dkt. # 467 at 5. However, because there was probable cause to believe that the vehicle contained contraband,fn5 officers did not violate the Fourth Amendment in seizing the vehicle pending authorization to search it the following day. The mere fact that the officers could have obtained the warrant at an earlier time does not render the search or seizure invalid.

5. See Colorado v. Bannister, 449 U.S. 1, 3 (1980); Maryland v. Dyson, 527 U.S. 465, 466 (1999) ("[U]nder our established precedent, the 'automobile exception' has no separate exigency requirement.")


Permalink 10:14:34 am, by fourth, 503 words, 744 views   English (US)
Categories: General

ID: Hot pursuit justified entry into home of a DUI suspect who refused to stop on command

Entry into defendant's home in "hot pursuit" was valid where officer attempted to stop DUI suspect right after a domestic disturbance call. She got out of her car and walked to her house, ignoring the officer's order to stop. She got in the door with the officer right behind her. State v. Finnicum, 206 P.3d 501 (Ida. App. April 2, 2009):

Given these circumstances, Deputies McFarland and Vrevich acted lawfully when they followed Finnicum into the house because they were completing a justified arrest that had been set in motion in a public place. This conclusion is dictated by the United States Supreme Court's decision in Santana. There, police possessing probable cause to arrest Santana for a drug offense went to her house, where she was standing in the doorway. As the officers approached, they shouted, "Police" and displayed their identification, whereupon Santana retreated into the vestibule of her home. The officers followed her through the open door and caught her in the vestibule. Addressing the question of "whether her act of retreating into her house could thwart an otherwise proper arrest," the Supreme Court held that it could not. The Court concluded that "a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place." Santana, 427 U.S. at 43.

Here, Deputy McFarland had progressed further toward effectuating an arrest--by ordering Finnicum to stay by her vehicle--than had the officers in Santana who had merely yelled "Police" and showed their identification. Finnicum's arrest was set in motion in a public place, and she may not gain refuge through her subsequent refusal to obey a lawful police order. Therefore, the deputies' entry of Finnicum's home to complete the arrest did not violate the Fourth Amendment.

Officer's hunch was insufficient basis for a patdown. His observation of defendant loitering in front of a store known to be the site of drug distribution and drug-related arrests was not, by itself, sufficient to warrant a pat down. While defendant appeared nervous, the record did not show that defendant concealed or attempted to conceal his hands from the officer. There were no other relevant facts to suggest that defendant was involved in the distribution of drugs, such as hand-to-hand transaction, contact with others, or maintenance of a stash. Thompson v. Commonwealth, 54 Va. App. 1, 675 S.E.2d 832 (2009).*

Exigent circumstances did not justify the entry into defendant's premises because officers waited an hour before deciding to enter, thereby showing that there was no exigency. There was also no probable cause shown in the affidavit for the search warrant. The motion to suppress was properly granted. State v. Mills, 2009 Tenn. Crim. App. LEXIS 337 (May 11, 2009).*

Search incident of defendant's person was valid in Kansas on arrest for driving without insurance. Officer has discretion to cite or arrest. State v. Cox, 41 Kan. App. 2d 833, 206 P.3d 54 (2009).* (Note that this case was decided the day before Gant, but SI of a person being arrested is different from SI of his car.)

Permalink 09:39:48 am, by fourth, 187 words, 476 views   English (US)
Categories: General

MA: Frisk can continue past finding a weapon

Search incident was proper, and a box cutter was found. The officer was not required to stop the search incident just on finding the box cutter and other hard objects. Commonwealth v. Dessources, 74 Mass. App. Ct. 232 (May 8, 2009).*

Officer's conclusion that defendant was the man wanted in a robbery call was unreasonable. The man wanted was described as white and the defendant was a light skinned Hispanic. There were no facts otherwise that linked the defendant to a possible robbery or that he was armed. The stop and frisk was not justified, and the trial court's suppression order was properly granted. Commonwealth v. Martinez, 74 Mass. App. Ct. 240 (May 11, 2009).*

Telling the defendant to get out of his van was a seizure because he could not have believed he could refuse. It was reasonable, however, because the officer believed the defendant was under the influence. Defendant consented to search of van. State v. Murray, 2009 Ohio 2130, 2009 Ohio App. LEXIS 1828 (8th Dist. May 7, 2009).*

Inventory search of defendant's vehicle was proper, and his urging application of a statute that might require a 24 hour wait was rejected. Commonwealth v. Burton, 2009 PA Super 87, 973 A.2d 428 (2009).*

Permalink 08:58:45 am, by fourth, 358 words, 562 views   English (US)
Categories: General

OH8: Eviction notice does not make an apartment dweller a trespasser; entry without SW invalid

Defendant apartment dweller who had been served with an eviction notice was still in lawful possession when the police entered without a warrant. Therefore, the entry was invalid because he was not a trespasser at that time. State v. Dennis, 2009 Ohio 2173, 182 Ohio App. 3d 674, 914 N.E.2d 1071 (2d Dist. 2009):

[*P26] We therefore turn to whether Dennis retained a reasonable expectation of privacy in Apartment F when the officers entered without a warrant on August 17, 2007. Dennis claims that the evidence was insufficient to establish that he was a trespasser -- and, consequently, that he no longer had a reasonable expectation of privacy -- because he was still in "lawful possession" of the apartment since there was no evidence that the proper legal procedures for eviction had been completed under R.C. Chapter 1923.

[*P27] "[C]oncepts of state property law are relevant, but not necessarily dispositive, for deciding the question whether there was a legitimate privacy interest for [F]ourth [A]mendment purposes." United States v. Sledge (C.A.9, 1981), 650 F.2d 1075, 1082.

[*P28] "*** [I]t is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical." Jones v. United States (1960), 362 U.S. 257, 266, 80 S.Ct. 725, 4 L.Ed.2d 697, overruled on other grounds by United States v. Salvucci (1980), 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619. See, also, Georgia v. Randolph (2006), 547 U.S. 103, 110, 126 S.Ct. 1515, 164 L.Ed.2d 208 (stating that "Fourth Amendment rights are not limited by the law of property.").

[*P29] At the same time, "[a]lthough property [law] concepts are not necessarily determinative of Fourth Amendment rights, they are nonetheless helpful in assessing which expectations society is prepared to recognize as legitimate. In particular, a tenant's expectation of privacy ceases to be 'objectively justifiable' when his occupancy ceases to be lawful, as determined by the terms of his lease and the provisions of his state's landlord-tenant law." (Internal citations omitted.) United States v. Ross (C.A.6, 2002), 43 Fed.Appx. 751.

Permalink 08:47:52 am, by fourth, 361 words, 525 views   English (US)
Categories: General

NJ: Second entry under same warrant was proper because police were on the trail of a subject of the SW; NJ adopts "reasonable continuation" doctrine

Under the "reasonable continuation" doctrine, a single search warrant could provide authorization for the executing officers to make more than one entry into the premises identified in the warrant if they were unable to locate an item of evidence specified in the warrant during their initial entry. In order for a re-entry into premises to be considered a reasonable continuation of the search authorized by the warrant, two conditions had to be satisfied: first, the subsequent entry had to be a continuation of the original search, rather than a new and separate search; and second, the decision to conduct a second entry to continue the search had to be reasonable under the totality of the circumstances. Both conditions were satisfied. State v. Finesmith, 406 N.J. Super. 510, 968 A.2d 715 (2009):

Our courts have not previously had occasion to consider whether a single search warrant may provide authorization for the executing officers to make more than one entry into the premises identified in the warrant if they are unable to locate an item of evidence specified in the warrant during their initial entry. However, the federal courts have adopted what is commonly referred to as the "reasonable continuation doctrine" under which police may in some circumstances temporarily suspend a search authorized by a warrant and re-enter the premises at a later time to continue the search. See, e.g., United States v. Keszthelyi, 308 F.3d 557, 568-69 (6th Cir. 2002); United States v. Squillacote, 221 F.3d 542, 557-58 (4th Cir. 2000), cert. denied, 532 U.S. 971, 121 S. Ct. 1601, 149 L. Ed. 2d 468 (2001); United States v. Gerber, 994 F.2d 1556, 1558-61 (11th Cir. 1993); United States v. Kaplan, 895 F.2d 618, 623 (9th Cir. 1990); State v. Carter, 854 F.2d 1102, 1107 (8th Cir. 1988); United States v. Bowling, 351 F.2d 236, 241 (6th Cir. 1965); United States v. Joseph, 278 F.2d 504, 505 (3rd Cir. 1960).

In order for a re-entry into premises to be considered a reasonable continuation of the search authorized by the warrant, two conditions must be satisfied: first, "the subsequent entry must ... be a continuation of the original search, rather than a new and separate search," and second, "the decision to conduct a second entry to continue the search must be reasonable under the totality of the circumstances." Keszthelyi, supra, 308 F.3d at 569.


Permalink 06:21:56 am, by fourth, 525 words, 397 views   English (US)
Categories: General

W.D. Wash.: GFE does not apply to SW execution issues where something outside SW was searched

Search of an office in a portable trailer separate from an airport hanger where the hanger was the subject of a search warrant was unreasonable under the warrant. The good faith exception does not apply to execution issues like this. United States v. Garner, 2009 U.S. Dist. LEXIS 39562 (W.D. Wash. April 27, 2009):

Plaintiff argues that suppression of the evidence obtained is not an automatic consequence of an unreasonable search. Dkt. 55 at 7-9. Plaintiff asserts that the Court should rely on the good faith exception announced by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Defendants counter with the Tenth Circuit's holding in United States v. Angelos, 433 F.3d 738 (10th Cir. 2006), that the Leon exception does not apply when "the problem lies in the execution, and not the constitutionality, of the search warrant." Id. at 746. Although the Court is unaware of any direct Ninth Circuit support for this proposition, the Circuit did explicitly distinguish the Angelos holding in United States v. Hurd, 499 F.3d 963, 969 n. 6 (9th Cir. 2007). In Hurd, the court upheld the district court's denial of the defendant's motion to suppress finding that "it was objectively reasonable for Officer Clifton to believe that Judge Kurshner authorized the search of Hurd's residence, despite [Judge Kurshner's] failure to initial the appropriate line on the search warrant." Id. at 969. Specifically, the defendant argued that this holding would create an inter-circuit conflict with Angelos, but the court disagreed and stated that Angelos was "readily distinguishable."

In this case, the Court finds that the execution of the search warrant was more similar to the Angelos scenario rather than the Hurd scenario. In other words, it was objectively unreasonable for the officers conducting the search to understand that the scope of the search warrant contemplated that the Royal Limousine Office would have been found outside of, and a significant distance from, the leased airport hangar. Therefore, the Court finds that the Leon good faith exception does not apply to overcome the suppression of the evidence seized from the trailer in violation of the Defendants' constitutional rights.

Defendant's stop was objectively reasonable and justified, and he validly consented after that. [Anders brief] United States v. Sands, 329 Fed. Appx. 794 (10th Cir. 2009)* (unpublished).

Defendant was objectively stopped for a window tint violation, and it was discovered that he was driving on a suspended DL. Consent was sought and refused, but the officer testified he always did that even when an inventory was coming. Here, the inventory was valid under the department regulations, and a gun was found. Defendant's argument that it was invalid as a search incident under Gant was not reached. United States v. Elliot, 2009 U.S. Dist. LEXIS 40222 (S.D. Cal. May 8, 2009).*

The consenter's consent to searching the safe in their apartment was not limited by her concerns of breaking it open. She just did not want it damaged. United States v. Awoussi, 2009 U.S. Dist. LEXIS 39994 (D. Neb. May 11, 2009).*

Defendant's racial profiling claim against the officer [not his first] fails because the defense failed to show that there was no objective basis for the stop. United States v. Benitez, 613 F. Supp. 2d 1099 (S.D. Iowa 2009).*

Permalink 06:00:17 am, by fourth, 392 words, 407 views   English (US)
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CA3: Defendant who failed to respond to officers' show of authority is not seized

Defendant who fails to respond to a "show of authority" by the drawing of guns is not "seized." United States v. Waterman, 2009 U.S. App. LEXIS 10179 (3d Cir. May 12, 2009) (unpublished):

Here, there was no application of physical force. The police drew their guns in a "show of authority." While this act definitely constituted a display of force, we conclude that it fell short of the force or physical contact required under Hodari D.fn5

5. Couden, 446 F.3d at 493-94 (no "seizure" when defendant flees after police draw their weapons); Valentine, 232 F.3d at 358-59 (citing Johnson, 212 F.3d at 1315 for the proposition that no "seizure" occurs when police, drawing their weapons, order a defendant to raise his hands, but he refuses); Fontenot v. Cormier, 56 F.3d 669, 674 (5th Cir. 1995) (no "seizure" when police, rushing the defendant's car with their guns drawn, order him out of the vehicle, but he flees); Edwards v. Giles, 51 F.3d 155, 156 (8th Cir. 1995) (no "seizure" when police point gun at defendant, but he refuses to submit to officer's authority).

Similarly, there was no "submission" by Waterman. While the others on the porch raised their hands in compliance with the officers' directive, Waterman failed to do so. Instead, he moved his hands toward his waistband, and ultimately retreated into the house.

Defendant consented to a search of a computer in his house, which officers then discovered had been stolen from NASA. The defendant had no expectation of privacy in a stolen computer. United States v. Smith, 2009 U.S. Dist. LEXIS 39665 (W.D. Wash. April 27, 2009).*

Officers obtained third party consent but waited for a search warrant to search defendant's bedroom. [So what is the real suppression issue?] United States v. Rodgers, 2009 U.S. Dist. LEXIS 39680 (W.D. Mich. April 15, 2009).*

A receivership order was all that was required to seize assets and papers of defendants' ponzi scheme, and it was not subject to the particularity requirement. "[T]he receiver was authorized to seize all the named categories of assets and records of the identified defendants. Because the receiver was taking possession of everything in those categories that had been the property of the defendants for whom the receivership was authorized, further particularity would have served no purpose. After the seizure, the receiver had possession of the property only because he had been authorized by court order." United States v. Setser, 568 F.3d 482 (5th Cir. 2009).


Permalink 06:00:14 am, by fourth, 523 words, 495 views   English (US)
Categories: General

S.D.W.Va.: NCIC report was too vague to support arrest, and the exclusionary rule had to apply because officers were reckless under Herring

Defendant's arrest was without probable cause and a warrant off a vague NCIC printout, and the court concludes that the arrest has to be suppressed under Herring because the officers were not acting in objective good faith in relying on the vague report as proof of an arrest warrant. United States v. Toledo, 615 F. Supp. 2d 453 (S.D. W.Va. 2009):

As stated, this Court must be guided by an analysis of the ability to deter Fourth Amendment violations and the culpability of law enforcement officers. This analysis is "objective, not an inquiry into the subjective awareness of arresting officers." Herring, 129 S. Ct. at 703. Here, "'a reasonably well trained officer would have known that the search was illegal' in light of 'all of the circumstances.'" Id. (quoting Leon, 468 U.S. at 922 n.23.)) The actions of Lt. Smith and Sgt. Westfall are a far cry from those of the sheriff's department personnel in Herring. In this case, there was no warrant that gave these officers authority to arrest Defendant; rather, they presumed such authority despite receiving contrary information. They were not merely negligent, but rather "reckless[] or grossly negligent." Id. at 702. Such conduct can, and should be, deterred. To this end, the Court rejects the Government's argument that this case involved good faith, mistaken but objectively reasonable, reliance on an invalid warrant.

Extreme nervousness was a strong factor in RS because it continued after the officer told the defendant he was giving a warning ticket. Dog alert supported search of the trunk. Yoeuth v. State, 2009 WY 61, 206 P.3d 1278 (2009).*

Officer was called when defendant complained that his girlfriend would not leave his apartment. When the officer got there, the girlfriend told him that the defendant had a crackpipe in his headboard. She did not have apparent authority to consent to the search because it was obvious that she did not live there. State v. Williams, 2009 Ohio 2040, 2009 Ohio App. LEXIS 1699 (8th Dist. April 30, 2009).*

Officer saw defendant's van pull into a driveway in a high crime area, and a person known to be a drug dealer came out and reached into the driver's window, leading the officer to suspect a hand-to-hand drug transaction. He saw nothing change hands. He followed the vehicle and pulled it over. When the defendant stopped at a convenience store, the officer stopped him and asked for permission to search his person, which he got, finding nothing. The officer asked the passenger who was the vehicle owner, and he declined to consent to a search of the vehicle, so the officer called for a drug dog. The detention was without reasonable suspicion. Panter v. State, 8 So. 3d 1262 (Fla. App. 1DCA 2009).*

Defendant parolee was ratted out by his girlfriend to his parole officer about his possession of drugs, and that justified the parole search of his house. United States v. Noble, 326 Fed. Appx. 125 (3d Cir. 2009) (unpublished).*

Defendant complained that the stop took too long for the drug dog to arrive. His admission that somebody smoked marijuana in the car that day "was additional reason to prolong the stop to allow the dog sniff." United States v. Johnson, 2009 U.S. App. LEXIS 10072 (7th Cir. May 11, 2009) (unpublished).*

Permalink 05:00:28 am, by fourth, 438 words, 692 views   English (US)
Categories: General

WI: "GPS reasonable under Fourth Amendment, but we don't like it"

Wisconsin (five days before Weaver) finds GPS tracking reasonable under the Fourth Amendment, but it is troubled by it and urges the legislature to limit it. State v. Sveum, 2009 WI App 81, 319 Wis. 2d 498, 769 N.W.2d 53 (2009):

P19 Accordingly, we conclude that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view. Because this case does not involve tracking information on the movement of Sveum's car within a place protected by the Fourth Amendment, it follows that the circuit court correctly rejected Sveum's Fourth Amendment suppression argument.

P20 We are more than a little troubled by the conclusion that no Fourth Amendment search or seizure occurs when police use a GPS or similar device as they have here. So far as we can tell, existing law does not limit the government's use of tracking devices to investigations of legitimate criminal suspects. If there is no Fourth Amendment search or seizure, police are seemingly free to secretly track anyone's public movements with a GPS device. As the Seventh Circuit observed:

The new technologies enable, as the old (because of expense) do not, wholesale surveillance. One can imagine the police affixing GPS tracking devices to thousands of cars at random, recovering the devices, and using digital search techniques to identify suspicious driving patterns. One can even imagine a law requiring all new cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States….


Technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive.

Garcia, 474 F.3d at 998.

P21 We are also concerned about the private use of GPS surveillance devices. As the Seventh Circuit and a recent New York Times article indicate, GPS technology is available at low cost to the general public. See Garcia, 474 F.3d at 995; David Pogue, Peekaboo, Zoombak Sees You, N.Y. TIMES, Apr. 23, 2009, at B1, B8. Although there are obviously legitimate private uses, such as a trucking company monitoring the location of its trucks, there are also many private uses that most reasonable people would agree should be prohibited.

P22 Consequently, we urge the legislature to explore imposing limitations on the use of GPS and similar devices by both government and private actors. Such limitations would appear to be consistent with limitations the legislature has placed on electronic intercepts of communications. See Wisconsin's Electronic Surveillance Control Law, WIS. STAT. §§ 968.27-.33 (2007-08).


Permalink 11:05:40 pm, by fourth, 365 words, 373 views   English (US)
Categories: General

W.D.N.Y.: Defendant carries burden of going forward on warrantless search, but government has burden of proof

Defendant carries the initial burden of showing that he was seized, and then the burden shifts to the government to show that it was lawful. Defendant's handcuffing satisfied his burden. United States v. Sanon, 2009 U.S. Dist. LEXIS 39068 (W.D. N.Y. April 28, 2009) (court also takes judicial notice of distance between places off of

On a motion to suppress, the defendant bears the initial burden of establishing that a government official acting without a warrant in fact subjected him to a search or seizure. United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980) (citations omitted), cert. denied, 450 U.S. 917, 101 S. Ct. 1362, 67 L. Ed. 2d 343 (1981); United States v. Chavis, 48 F.3d 871, 872 (5th Cir.1995); United States v. Bayless, 921 F. Supp. 211, 213 (S.D.N.Y. 1996). Once the defendant has met this burden, the burden then shifts to the government to demonstrate by a preponderance of the evidence, United States v. Bayless, 921 F. Supp. at 213, that the search or seizure did not violate the Fourth Amendment. United States v. Arboleda, 633 F.2d at 989; see also United States v. Bonilla Romero, 836 F.2d 39, 45 (1st Cir. 1987) ("[w]hen it has acted without a warrant, the ultimate burden of persuasion is then upon the government to show that its evidence is not tainted") (citing Alderman v. United States, 394 U.S. 165, 183, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969)), cert. denied, 488 U.S. 817, 109 S. Ct. 55, 102 L. Ed. 2d 33 (1988).

Court does not find the officers' testimony that defendant committed a lane change without signaling within 20 seconds of them seeing him as "too good to be true" so as to be necessarily improbable. Officers are credited; stop is valid. United States v. Campbell, 609 F. Supp. 2d 674 (D. R.I. 2009).*

Because the USMJ cannot determine what, if anything, from execution of a search that the government intends to introduce at trial, the government is ordered to disclose what it intends to use so the defense can move to suppress. United States v. Yost, 2009 U.S. Dist. LEXIS 38986 (D. Nev. May 7, 2009).*

Traffic stop became too long and exceeded the time necessary for its initial purpose, and questions kept being asked extending the stop. Consent was suppressed. People v. Al Burei, 391 Ill. App. 3d 1, 908 N.E.2d 538, 330 Ill. Dec. 350 (2009).*


Permalink 09:59:29 am, by fourth, 1017 words, 4256 views   English (US)
Categories: General

NY: GPS monitoring a vehicle's movements without exigent circumstances violates state constitution

The New York Court of Appeals today decided People v. Weaver, 12 N.Y.3d 433 (May 12, 2009), holding that the NY Constitution prohibits the use of GPS transmitters on vehicles without a warrant, following other state courts analyzing the issue under their constitutions. This is a stunningly prescient opinion:

At first blush, it would appear that Knotts does not bode well for Mr. Weaver, for in his case, as in Knotts, the surveillance technology was utilized for the purpose of tracking the progress of a vehicle over what may be safely supposed to have been predominantly public roads and, as in Knotts, these movements were at least in theory exposed to "anyone who wanted to look" (id. at 281). This, however, is where the similarity ends.

Knotts involved the use of what we must now, more than a quarter of a century later, recognize to have been a very primitive tracking device. The device was, moreover, used in a focused binary police investigation for the discreet purpose of ascertaining the destination of a particular container of chloroform. And, in this application, during the single trip from the place where the chloroform was purchased to the Knotts cabin, the beeper was fairly described by the Court as having functioned merely as an enhancing adjunct to the surveilling officers’ senses; the officers actively followed the vehicle and used the beeper as a means of maintaining and regaining actual visual contact with it. The technology was, in this context, not unconvincingly analogized by the Court to a searchlight, a marine glass, or a field glass (id. at 283, citing United States v Lee, 274 US 559, 563 [1927]).

Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or "seeing" by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.

That such a surrogate technological deployment is not -- particularly when placed at the unsupervised discretion of agents of the state "engaged in the often competitive enterprise of ferreting out crime" (Johnson v United States, 333 US 10, 14 [1948]) -- compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious. One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons -- to mention just a few of the highly feasible empirical configurations.

. . .

Technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.

The opinion even quotes Brandeis' 1928 Olmstead dissent on the right to be let alone:

The protection guaranteed by the Amendments [the Fourth and Fifth] is much broader in scope [than the protection of property]. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.


Permalink 04:33:42 am, by fourth, 524 words, 814 views   English (US)
Categories: General

CA8: Smell of working meth law was exigent circumstance

CI told police about defendant's meth lab at home. Police went there without a warrant and could smell it from outside. They had PC and exigent circumstances for a warrantless entry. United States v. Clarke, 2009 U.S. App. LEXIS 9913 (8th Cir. May 8, 2009):

Exigent circumstances also existed. Because the officers had probable cause to believe methamphetamine was being produced in Clarke's home, the officers reasonably concluded there was a potential threat to the safety of the officers, anybody inside the home, and anyone in the surrounding area. See United States v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002) (declaring, "[o]ur court has consistently considered safety factors in determining whether exigent circumstances existed," and "[t]he potential hazards of methamphetamine manufacture are well documented, and numerous cases have upheld limited warrantless searches by police officers who had probable cause to believe they had uncovered an on-going methamphetamine manufacturing operation"). The officers' concern for the safety of everyone involved in the situation was reasonably heightened after the officers were unable to contact anyone inside the home after knocking and calling the listed telephone number. See id. (holding exigent circumstances existed when there was an odor of ether, possible equipment for methamphetamine manufacturing, and the officers could not determine whether anyone was hiding or lying unconscious, or whether there was a dangerous heat source, in the suspected methamphetamine lab). We therefore conclude the district court did not commit error in denying Clarke's motion to suppress because the warrantless entry of Clarke's home on August 23, 2005, was justified by probable cause and exigent circumstances.

Consent was shown to be voluntary under the totality [without saying what it was]. United States v. Ramirez, 326 Fed. Appx. 182 (4th Cir. 2009)* (unpublished).

Defendant's father had apparent authority to consent to a search of the family computer for which he paid the internet access. United States v. Mullen, 329 Fed. Appx. 61 (9th Cir. 2009)* (unpublished):

Here, Mullen's father had actual authority to consent to the search of the computer he purchased for his family's use, located in an unoccupied room, and for which he paid for the internet access. See United States v. Dearing, 9 F.3d 1428, 1429 (9th Cir. 1993). The district court's determination that Mullen's father's consent was voluntary was not clearly erroneous where the officers were dressed in plain clothes and never showed their guns as a display of authority. See United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir. 2000). Furthermore, Mullen's father signed a consent form which clearly informed him of his right to choose not to consent.

Defendant was not told he was free to leave during traffic stop, but he should have known he was when the ticket for speeding was given. Consent was asked for while defendant was still there. United States v. Zambrano, 325 Fed. Appx. 369 (5th Cir. 2009)* (unpublished) [Note: I never buy that the defendant should have known he was free to leave until he is specifically told he was free to leave. He was stopped with flashing lights of the police car parked behind him, and the lights are not just there for safety purposes for the cars on the side of the road--that was how the officer effected and continues the stop.]

Permalink 03:57:16 am, by fourth, 807 words, 4409 views   English (US)
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CA5: SWAT team cannot conduct administrative search

A private club corporation had standing to bring its own Fourth Amendment claim for a raid on the club. Defendants' violent SWAT team raid on the club was not within the consent given to patrons to enter. It also was not a reasonable administrative search. Even as an administrative search, it cannot be a pretext for a criminal search. Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir. 2009):

Taking plaintiffs' factual allegations as true, defendants did not enter Club Retro as would a typical patron; instead, they chose to project official authority by entering with weapons drawn in a S.W.A.T. team raid. They lacked any particularized suspicion or probable cause when they subsequently searched Club Retro, its attic, and the separate apartment and seized and searched all of its patrons and employees. Thus, defendants' entry and search was not a reasonable acceptance of Club Retro's invitation to the public. Any other conclusion would be an invitation for S.W.A.T. team raids by law enforcement officers of any business that is open to the public and would severely undermine the Fourth Amendment protections afforded to owners of commercial premises.

We are likewise not convinced by defendants' second argument that they conducted a permissible administrative inspection. Although Louisiana statutes and Rapides Parish ordinances authorizing administrative inspections may have provided justification for an entry and inspection of Club Retro, no such law permits the scope and manner of the raid that plaintiffs allege occurred here. It is true that a commercial property owner's Fourth Amendment rights are "particularly attenuated in commercial property employed in 'closely regulated' industries." Burger, 482 U.S. at 700. The liquor industry has been a closely regulated industry. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970). The owner of a liquor establishment's attenuated Fourth Amendment interests "may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections." Donovan, 452 U.S. at 599; Colonnade Catering Corp., 397 U.S. at 77; see also Delaware v. Prouse, 440 U.S. 648, 654-55 (1979); Bruce, 498 F.3d at 1248 ("Under certain limited circumstances, the Constitution permits warrantless administrative searches. It never permits unreasonable ones.").

. . .

Even under a valid inspection regime, the administrative search cannot be pretextual. See Burger, 482 U.S. at 724 ("In the law of administrative searches, one principle emerges with unusual clarity and unanimous acceptance: the government may not use an administrative inspection scheme to search for criminal violations."); see also, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000); Abel v. United States, 362 U.S. 217, 226 (1960); United States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993) (holding that an administrative inspection is a sham if it is "a pretext solely to gather evidence of criminal activity." (emphasis added)). And, in all cases, the Fourth Amendment's reasonableness requirement applies to government officials conducting administrative inspections of private commercial property. See Burger, 482 U.S. at 702; Donovan, 452 U.S. at 598.

. . .

During oral argument, defendants did not attempt to justify the scope and manner of the raids as reasonable, admitting instead that reasonableness is a fact-based question for which they must defer to the allegations of the amended complaint at this stage of the litigation. Administrative inspections, by their very nature, require more limited, less intrusive conduct than is alleged to have occurred here. We thus conclude that defendants' S.W.A.T. team entries and extensive searches, as described in the amended complaint, unreasonably exceeded the scope of Louisiana and Rapides Parish administrative inspection laws. Any other conclusion would allow the administrative inspection exception to swallow the Fourth Amendment's warrant requirement for searches of private property.

Our conclusion is supported by case law holding that an administrative inspection regime cannot support armed raids, broad searches, and extended detentions. In Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995), the Eleventh Circuit relied on existing Supreme Court precedent to reject qualified immunity as a defense for officers who conducted two raids of a nightclub that were comparable in relevant respects to the raid here. There, a S.W.A.T. team of thirty to forty officers, wearing ski masks, swarmed a club after receiving a signal from an undercover officer who had probable cause to arrest one patron for an illegal drug transaction. Id. at 993. The officers pointed their weapons at many of the club's patrons and employees; prohibited the owners, employees, and patrons from moving or leaving; searched all individuals; refused patrons' and employees' requests to use the restrooms; searched the club, its cash registers, and door receipts; and maintained control of the premises and persons for between one and one and one-half hours. Id. The court concluded that the officers could point to "no authority that even suggests that the search and seizure of one suspect in a public place can be bootstrapped into probable cause for a broad-based search of the business establishment and its patrons." Id. at 997 (citing Ybarra v. Illinois, 444 U.S. 85 (1979)).


Permalink 03:46:31 pm, by fourth, 141 words, 435 views   English (US)
Categories: General

D.C. neighborhood case before D.C. Cir., argued May 8

A neighborhood roadblock case in D.C. is before the D.C. Circuit. See D.C. Police Neighborhood Checkpoints Challenged on Appeal from May 8:

Lawyers for the city say the zones, which were used last summer, are designed to prevent and deter criminal activity. Police stop and question drivers, asking for identification and travel plans. Officers are instructed to get phone numbers in order to verify information provided by the driver or passengers. Police say a Neighborhood Safety Zone can be set up for 10 days in response to a spike in crime.

Critics of the program argue police do not have authority to stop drivers when there is no suspicion of illegal activity. “The irreparable harm is the deprivation of their fundamental constitutional rights,” Verheyden-Hilliard told today’s panel of Chief Judge David Sentelle and Judges Douglas Ginsburg and Judith Rogers.


Permalink 03:19:36 pm, by fourth, 97 words, 602 views   English (US)
Categories: General

Postings may be delayed all the week of May 10-15

Postings through Friday or even next weekend are iffy.

I'm off today to an ICC training session where I'm on the program for defense counsel training. I'm also on the ICC Disciplinary Appeals Board, it it meets Wednesday.

The last time I was there, I stayed at a hotel where the internet access cost was €30 a day ($44 then). I won't pay it.

We'll see.

Update: It is €15, so I paid for it. But, the cases come from Lexis in the morning central time, which would be afternoon here. Still, it will be hit or miss some days.

Permalink 03:10:30 pm, by fourth, 358 words, 422 views   English (US)
Categories: General

IL: Passenger not being arrested twice told he could leave stuck around and incriminated himself

Defendant was initially seized when the vehicle in which he was riding was stopped, and he was patted down. Nothing was found. When it became apparent the vehicle would be impounded, the officer twice told defendant he could go and he was on his own. The defendant hung around and made incriminating statements which were not the product of a seizure. People v. Robinson, 391 Ill. App. 3d 822, 909 N.E.2d 232, 330 Ill. Dec. 519 (2009) rehearing denied 2009 Ill. App. LEXIS 675 (Ill. App. Ct. 2d Dist., July 1, 2009)*:

Here, even if defendant did not have immediate access to a ride to leave the scene, a reasonable person in the same circumstances still would have felt free to decline the officers' requests. In addition to being told he could leave more than once, defendant chose not to respond to some of the officers' statements/questions, and he further advised Walker to revoke her consent to search the car, demonstrating that defendant himself felt free to decline the officers' requests. Considering the Mendenhall factors as well as the other circumstances in the case, we conclude that defendant was not seized when he made the incriminating statements and that the trial court properly denied his motions to suppress.

[As stated by State v. Bacher, 2007 Ohio 727, 170 Ohio App. 3d 457, 460 & n. 2, 867 N.E.2d 864, 866 & n. 2 (1st Dist. 2007), Robinson "had the right to remain silent, but not the ability." Ron White, Tater Salad Story.]

Defendant juvenile showed a factual dispute to get a suppression hearing over whether he was searched when the students in a class were ordered to empty their pockets to locate a ringing cell phone. Matter of Elvin G., 12 N.Y.3d 834, 910 N.E.2d 419 (2009).*

Defendant had no reasonable expectation of privacy in conversations with his wife in the visitation area of a correctional facility. State v. Rollins, 363 N.C. 232, 675 S.E.2d 334 (2009).

Minor errors in the showing of probable cause were not material to the finding of probable cause what was based on a CI’s direct observations in recent time. This was not a Franks violation. Roach v. State, 2009 Miss. LEXIS 199 (April 23, 2009)*, rev'g Roach v. State, 2007 Miss. App. LEXIS 538 (August 21, 2007), posted here.

Permalink 02:21:21 pm, by fourth, 361 words, 538 views   English (US)
Categories: General

D.Utah: Defendant does not have a right to watch a search as a part of a right to limit it

“Standing” is a close question, but, assuming defendant had it, the search was lawful as by consent, which defendant did not have to have an ability to limit because he was positioned so he could not see it happen. United States v. Jimenez-Valenia, 2009 U.S. Dist. LEXIS 37911 (D. Utah May 1, 2009):

[T]he Tenth Circuit would prefer courts "'not use the term 'standing' as shorthand for a defendant's capacity to challenge a search,'" the court does so here for clarity. United States v. Smith, 531 F.3d 1261, 1266 n. 2 (10th Cir. 2008) (quoting United States v. Higgins, 282 F.3d 1261, 1270 n.3 (10th Cir. 2002)). This is the term used by the United States, Mr. Jimenez-Valencia and a great deal of the relevant case law. E.g., United States v. Worthon, 520 F.3d 1173, 1177-78 (10th Cir. 2008).

"The lawfulness of the search and seizure is not determinative of Smith's right to return of the property under Rule 41(g)." United States v. Smith, 329 Fed. Appx. 682 (8th Cir. 2009) (per curiam).*

Defendant had no reasonable expectation of privacy in the VINs on stolen vehicles on a trailer she was pulling. Defendant’s pat search on booking was reasonable. She had no reasonable expectation of privacy that the police would not fly over her property and photograph it. United States v. Bain, 2009 U.S. Dist. LEXIS 37935 (D. Neb. May 5, 2009).*

Even if defendant could reopen his suppression hearing and guilty plea after Gant was decided, this was not a search incident under Gant. It was a Terry patdown based on reasonable suspicion. United States v. Kieckbusch, 2009 U.S. Dist. LEXIS 37928 (E.D. Wis. May 4, 2009).*

When asked about the contents of the car, defendant said that the car was not his. This amounts to a waiver of standing. United States v. Dickerson, 2009 U.S. Dist. LEXIS 38195 (N.D. Ohio April 28, 2009).*

When asked about a locked box in a car, defendant said the box was not hers. This is a waiver of standing. United States v. Morgan, 2009 U.S. Dist. LEXIS 38611 (W.D. Va. April 30, 2009).*

Defense counsel was not ineffective for not filing a [completely] meritless motion to suppress a trash search at the curb. United States v. Myers, 2009 U.S. Dist. LEXIS 37963 (D. S.C. April 14, 2009).*


Permalink 06:39:07 am, by fourth, 276 words, 2395 views   English (US)
Categories: General

AL: Minor can consent to search of parent's house

Alabama decides to join the majority of jurisdictions that conclude that a minor has sufficient joint control in her parents' house to consent to a search under the following standard:

Accordingly, the State of Alabama must affirmatively answer the following questions in order to support a contention that a person under the age of 18 provided valid third-party consent to a request to conduct a warrantless search: First, did the minor live in the home or share the premises with the absent parent? Second, did the minor have the right of access to the premises searched and the right to invite others to the premises? Third, did the totality of the circumstances indicate that the police were reasonable in their determination that the minor had sufficient control over the premises? Finally, did the facts attendant to the encounter -- including the minor's age, maturity, and intelligence -- indicate that the minor could exercise sufficient discretion to freely, knowingly, and voluntarily consent to the search and not merely acquiesce to a request of a police officer? Failure to satisfy all four prongs of this test will preclude a finding that the minor gave valid third-party consent.

Allen v. State, 2009 Ala. Crim. App. LEXIS 62 (May 1, 2009) (surveying many cases).

Defendant was in a car stopped for excessive noise, and defendant was fidgeting and nervous. When the officer talked to him, he said that he did not want to be patted down. The officer had reasonable suspicion that defendant was armed. B.A.H. v. State, 28 So. 3d 29 (Ala. Crim. App. 2009).*

CI does not need a track record for a controlled buy as PC. Morgan v. State, CR08-1330 (Ark. May 7, 2009).*


Permalink 06:19:37 am, by fourth, 339 words, 629 views   English (US)
Categories: General

S.D.N.Y.: No REP in location of a cell phone in a tracking order

There is no reasonable expectation of privacy in a cell phone's location under a tracking order. United States v. Navas, 2009 U.S. Dist. LEXIS 37464 (S.D. N.Y. March 19, 2009):

Courts have followed Knotts in addressing cell site data and hold that a defendant has no legitimate expectation of privacy in such data. See Forest, 355 F.3d at 951 ("[C]ell-site data is simply a proxy for [defendant's] visually observable location."); see also In re Cell Site Location Application, 460 F. Supp. 2d at 462 (noting that the government could violate Karo by using cell site information to surveil a target in a private home that could not be observed from public spaces); In re the Matter of the Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 534 F. Supp. 2d 585, 613 (W.D. Pa. 2008) ("without a warrant based on probable cause the Government may use a tracking device to ascertain an individual's location on a public highway but not in a private home ...."). Courts have also determined that an individual does not have a legitimate expectation of privacy in items that are not in the individual's name, i.e., where the defendant is not the cell phone's subscriber. Suarez-Blanca, 2008 WL 4200156, at *6-7; United States v. Skinner. No. 3:07-CR-100 (HBG), 2007 U.S. Dist. LEXIS 38128, 2007 WL 1556596, at *17 (E.D. Tenn. May 24, 2007).

Navas did not have a legitimate expectation of privacy in the cell phone. First, the cell phone was only utilized on public thoroughfares en route from California to New York; there is no indication that law enforcement ever surveilled Navas, or any of the Defendants, in a private residence. Second, Navas was not a subscriber to the phone. Finally, if Navas intended to keep the cell phone's location private, he simply could have turned it off. See Aral-Estrada, 2006 WL 3197181, at *13. Accordingly, Navas did not have a reasonable expectation of privacy in the cell phone's transmissions and his motion to suppress based on information obtained under the Cell Site Order is denied.

Permalink 06:14:27 am, by fourth, 334 words, 809 views   English (US)
Categories: General

D. Minn.: Bus interdiction was not a seizure, with two "spotters" on the bus, too

An Officer was working an interstate bus, and his and the other officers' actions on the bus did not amount to a seizure, even though there were two "spotters" near the front door. United States v. Richards, 2009 U.S. Dist. LEXIS 37528 (D. Minn. April 17, 2009):

Defendant argued that because an officer was standing in the aisle, there were three other officers between him and the front of the bus, and because he had refused to permit a search of his luggage, he was effectively seized. Def. Mem., pp. 6-7. This reasoning has no merit. There is no testimony that any officer was stationed in the aisle during the interdiction in this case; rather, the testimony was that the officers moved in and out of the aisle as they questioned people, and deliberately did not stand in the aisle. See United States v. Angulo-Guerrero, 328 F.3d 449, 451 (8th Cir. 2003) (bus passengers not seized during interdiction where officer was moving down the aisle to make sure all passengers were questioned, and not to prevent them from leaving). Additionally, the fact that the two "spotters" were stationed in front of the bus did not render defendant seized. In Drayton, where a routine drug interdiction took place on a Greyhound bus under similar circumstances, officers dressed in plain clothes and carrying concealed weapons and visible badges boarded the bus; similar to this case, two officers went to the rear of the bus and one remained stationed in front to observe. 536 U.S. at 197. The Supreme Court found that the bus passengers were not effectively seized when the officers boarded the bus and began asking questions because the officers gave passengers no reason to believe they were required to answer the officers' questions, and because "there was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice." Id. at 204.

(This is a situation rife with coercion. I just don't get it.)

Permalink 05:59:42 am, by fourth, 234 words, 852 views   English (US)
Categories: General

CA4: Unauthorized driver of rental car has no standing

Unauthorized driver of a rental car has no standing to challenge its search. This is an offense against the rental company. United States v. Luster, 324 Fed. Appx. 224 (4th Cir. 2009) (unpublished).* (Note: There is a circuit split. The new edition of the treatise due out at the first of the year explains it all.)

Plaintiff's arrest on a warrant in a cop killing case was without probable cause. He was sought out and arrested primarily to get his gun for ballistic testing, and the gun was determined not to be the murder weapon. Two defendants were involved in getting the warrant and they were not present when the warrant was served, and they were still liable. Merely being related to another suspect is not probable cause. Poolaw v. Marcantel, 2009 U.S. App. LEXIS 9483 (10th Cir. May 4, 2009).*

Hotel employee saw a gym bag with a large quantity of cocaine in it in a room. The police were alerted, and they replaced the cocaine with faux cocaine. The police search was no greater than the private search that happened without their prior knowledge. Defendant was arrested after he left the room with the gym bag. United States v. Story, 565 F.3d 721 (4th Cir. 2009) (unauthorized).*

Disputed facts remained on whether plaintiff's trailer was unreasonably searched without a warrant when a fugitive was arrested outside of the trailer. Reese v. Monroe County Sheriff's Dep't, 327 Fed. Appx. 461 (5th Cir. 2009) (unpublished).*


Permalink 06:00:32 am, by fourth, 442 words, 402 views   English (US)
Categories: General

TX3: Two trash searches were more likely of defendant's stuff than one search

The search warrant for defendant's snowmobile involved in a hit-and-run was valid. It was seen from defendant's driveway during the investigation. "Defendant cannot argue that this search was illegal simply because his driveway causes a visitor to travel deeper onto his property than other driveways." State v. Mosner, 407 N.J. Super. 40, 969 A.2d 487 (2009).*

Seeing defendant remove a gun from his waist and put it in his truck was, "at a minimum, reasonable suspicion to believe that defendant unlawfully possessed a weapon." People v. Littleton, 62 A.D.3d 1267, 878 N.Y.S.2d 540 (4th Dept. 2009).*

Two trash searches were barely enough to get a search warrant for defendant's property. Considering deference given a SW, it was enough. Here, it was combined with years' old information from a CI, and that part was insufficient. Accurately describing the cars parked outside is an observation anybody could make. Flores v. State, 287 S.W.3d 307 (Tex. App. — Austin 2009):

The garbage container in which Farkas found the marihuana residue was sitting in front of the suspect premises, but it was also in or beside a city street and accessible to any neighbor or passer-by. Neither appellant nor Wardell was seen placing the garbage bags in question, or any other trash, in the container, and there was no other statement of fact in the affidavit suggesting a connection between the marihuana residue found in the garbage and either appellant, Wardell, or the suspect premises. On the other hand, the fact that Farkas found marihuana residue in the trash container outside the residence at 1920 Ramona Circle on two different occasions suggests that the incriminating material had not been placed there by a neighbor or some passer-by, but that it actually came from inside the house. The situation is analogous to the "doctrine of chances," which states that unusual events are unlikely to repeat themselves inadvertently or by happenstance. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005); see also 2 John Wigmore, Evidence § 302 (Chadbourn rev. 1979). This presents a very close question, but keeping in mind the deference that is due the magistrate's determination of probable cause, we conclude that the affidavit gave the magistrate a substantial basis for concluding that there was probable cause to search the premises for marihuana.

When there is consent, there is no need for probable cause. The trial court's finding of consent is supported by the record. State v. McCambridge, 2009 Ohio 2021, 2009 Ohio App. LEXIS 1678 (5th Dist. April 27, 2009).*

Letters in a padlocked closet were within the scope of the search warrant which included papers. The trial court erred in finding that they were not in plain view. State v. Richardson, 2009 Ohio 2020, 2009 Ohio App. LEXIS 1681 (5th Dist. April 27, 2009).*

Permalink 05:24:39 am, by fourth, 262 words, 385 views   English (US)
Categories: General

E.D.Pa.: Officers with SW "cannot (and are not expected to) know with precision the exact records or kinds of apparatus or instruments of crime that may be found"

A search warrant is not general just because it does not describe with complete specificity what the officers might find because they are not expected to know all that they might find or where they will have to look. United States v. Rodriguez-Jimenez, 2009 U.S. Dist. LEXIS 37044 (E.D. Pa. April 30, 2009):

Rather than authorizing unbridled "general exploratory rummaging in [Mr. Rodriguez-Jimenez's] belongings," ... the warrants here did not vest the agents with unrestricted discretion to search for and seize whatever they wished. Instead, the attachments to the search warrants describe in detail the places to be searched and the types of documents and other items to be seized. To be sure, the law enforcement agents cannot (and are not expected to) know with precision the exact records or kinds of apparatus or instruments of crime that may be found -- or the exact nook, cranny, drawer or shelf where the sought after evidence will be. Therefore, the Court is not obliged to be hyper-technical or overly demanding in its review of the degree of specificity of descriptions of the goods to be seized or the locations to be searched, as long as the descriptions are commensurate with the circumstances. United States v. Ventresca, 380 U. S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); .... Here, the descriptions in the search warrants for the Rodriguez-Jimenez house and mini-market were sufficiently focused to meet the requisite standards for upholding their validity.

A drive-off from a gas station without paying justified a stop by a National Park Service officer. United States v. Cheek, 586 F. Supp. 2d 1099 (D. Ariz. October 7, 2008, filed April 24, 2009).*

Permalink 05:15:39 am, by fourth, 769 words, 1760 views   English (US)
Categories: General

D.Mass. on search incident of cell phones

Search incident of defendant's cell phone was reasonable: "The search of Wurie's cell phone incident to his arrest was limited and reasonable. The officers, having seen the 'my house' notation on Wurie's caller identification screen, reasonably believed that the stored phone number would lead them to the location of Wurie's suspected drug stash." The court, however, has doubts about the breadth of cellphone search incident and summarizes the law. United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009):

Neither the Supreme Court nor the First Circuit has directly considered the issue of whether a search incident to arrest may include a search of a cell phone's contents, and if it does, how thorough the search might be. It seems indisputable that a person has a subjective expectation of privacy in the contents of his or her cell phone. See, e.g., United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007) (defendant had a sufficient privacy interest in his cell phone's call records and text messages to challenge their search; the search of the stored text messages, however, was permissible as incident to a valid arrest). Decisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager technology) trend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones. See United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1277 (D. Kan. 2007) (the same exceptions apply to warrantless searches of cell phones under the Electronic Communications Privacy Act as any other warrantless search.); United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (agreeing with the Fifth Circuit that, "if a cell phone is lawfully seized, officers may also search any data electronically stored in the device."); United States v. Valdez, 2008 WL 360548, at *3 (E.D. Wis. Feb. 8, 2008) (search of defendant's phone was contemporaneous with his arrest and the officer was reasonably concerned that if he delayed, the information on the phone would be lost); United States v. Lottie, 2008 WL 150046, at *3 (N.D. Ind. Jan. 14, 2008) (warrantless search of a cell phone justified by exigent circumstances); United States v. Dennis, 2007 WL 3400500, at *7 (E.D. Ky. Nov. 13, 2007) (search of a cell phone incident to valid arrest no different from the search of any other type of evidence seized incident to arrest); United States v. Parada, 289 F. Supp. 2d 1291, 1304 (D. Kan. 2003) (phone seized incident to valid arrest; exigent circumstances justified accessing cell phone's call records because continuing incoming calls would overwrite memory and destroy evidence); Cf. United States v. Morales-Ortiz, 376 F. Supp. 2d 1131 (D.N.M. 2004) (otherwise unlawful search of cell phone's memory for names and numbers was justified under the inevitable discovery doctrine); United States v. James, 2008 WL 1925032 (E.D. Mo. April 29, 2008) ("[T]he automobile exception allows the search of the cell phone just as it allows a search of other closed containers found in vehicles.").fn9 See also United States v. Reyes, 922 F. Supp. 818, 834 (S.D.N.Y. 1996) (warrantless searches of the stored memory of two pagers justified (i) as incident to arrest and (ii) by general consent); United States v. Chan, 830 F. Supp. 531, 535-536 (N.D. Cal. 1993) (warrantless search of pager memory comparable to a search of container contents; search was not so remote in time to invalidate it as a search incident to arrest); United States v. Diaz-Lizaraza, 981 F.2d 1216, 1223 (11th Cir. 1993) (agents reasonably activated defendant's pager to confirm its number). Cf. United States v. Thomas, 114 F.3d 403, 404 n.2 (3d Cir. 1997) (noting in dicta that the retrieval of a phone number from a pager found on defendant was a valid search incident to arrest).

fn9 But see United States v. Wall, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22, 2008) (declining to follow Finley; exigent circumstances might justify a warrantless search of a cell phone; but declining to allow a search of arrestee's cell phone incident to arrest; likening information stored in cell phone to a sealed letter); United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. Jan 20, 2009) (officers may be justified in searching the contents of a cell phone for evidence related to the crime of arrest, but "[w]hether a cell phone may be searched incident to an arrest to prevent the destruction or concealment of evidence of another crime is a different issue."); United States v. Park, 2007 WL 1521573, at *9 (N.D. Cal. May 23, 2007) (based on "the quantity and quality of information that can be stored" a cell phone "should not be characterized as an element of an individual's clothing or person [subject to search incident to arrest], but rather as a 'possession within an arrestee's immediate control that has fourth amendment protection at the station house.'").


Permalink 08:34:22 am, by fourth, 188 words, 362 views   English (US)
Categories: General

LA5: Randolph does not require defendant be asked for consent

Defendant's furtive gesture justified a protective search of defendant's person during a traffic stop. The court went to great lengths to explain how defendant's failure to respond to questions added to it. State v. Bridges, 2009 WI App 66, 319 Wis. 2d 217, 767 N.W.2d 593 (2009), review denied by
2009 WI 99, 2009 Wisc. LEXIS 328 (2009).*

Defendant's gesture was consent. "The Court concludes that Ms. Reynolds' gesture towards the headboard likewise constituted implied-in-fact consent on which Officer Harris reasonably relied when he searched for the guns." United States v. Reynolds, 2009 U.S. Dist. LEXIS 36687 (D. Me. April 21, 2009).*

Juvenile's stop was justified based on the fact he was obviously truant. Officer also had articulable suspicion that he and his cohorts were about to commit a burglary. In the Interest of J. T., 297 Ga. App. 636, 678 S.E.2d 111 (2009).*

Defendant's stop was only "9 minutes old" when he consented to a search of the vehicle which was found valid. Stagg v. State, 297 Ga. App. 640, 678 S.E.2d 108 (2009).*

The spirit of Randolph does not require officers ask the defendant here for consent. Here, the officers bypassed the defendant and asked his girlfriend. State v. Johnson, 9 So. 3d 1084 (La. App. (5th Cir. 2009).*

Permalink 07:51:42 am, by fourth, 372 words, 541 views   English (US)
Categories: General

ME: Reduced privacy interest of a parolee justified taking DNA after conviction, adopting totality test rather than special needs

Maine departs from the majority on DNA testing of convicts and adopts the totality of the circumstances standard rather than special needs exception. The case involved a cold case hit off DNA taken from a parolee after a prior conviction. State v. Hutchinson, 2009 ME 44, 969 A.2d 923 (2009):

[*P25] The extent of the physical intrusion on individual privacy authorized by the DNA Data Act is minor. Obtaining a DNA sample through a cheek swab is no more intrusive than taking a fingerprint. Moreover, the impairment of privacy rights by the State's use of the analysis of the DNA sample is mitigated by safeguards, contained in the DNA Data Act, that minimize the risk that personally identifiable information can be inappropriately mined or released. In addition, the DNA Data Act protects against the State's retention of the DNA profiles of persons who are ultimately determined to have been wrongfully convicted.

[*P26] In sum, at the time the State conducted its suspicionless and warrantless search of Hutchinson in 2003, his privacy interests were at their nadir. There is little if anything to suggest that society would expect that Hutchinson should have been afforded privacy protections upon his conviction and incarceration against physically unobtrusive searches of his body for personally identifying characteristics such as his fingerprints and DNA. See Martin, 955 A.2d at 1157 ("The data retained in the [DNA] data base serve only to prove identity, like a fingerprint. The information in the data base, then, is not information defendants can reasonably expect to keep private as convicted felons." (citation omitted))

. . .

[*P28] There is a strong correlation between offenders who are convicted of serious crimes and the cohort of persons who are most likely to commit new crimes. This is certainly true with respect to offenders who, like Hutchinson, are placed on probation and reportedly have a felony recidivism rate in excess of 40%. See Knights, 534 U.S. at 120 (noting a U.S. government report found "that 43% of 79,000 felons placed on probation in 17 States were rearrested for a felony within three years while still on probation"). Further, "it must be remembered that the very assumption of the institution of probation is that the probationer is more likely than the ordinary citizen to violate the law." Id. (quotation marks omitted).


Permalink 06:32:25 am, by fourth, 203 words, 509 views   English (US)
Categories: General

OH4: Search warrant for a person allows his search wherever he is found

Where a person is the subject of a search warrant, that person may be searched any place where he is found unless the warrant specifies that the search be conducted at a specific location. Defendant's argument that he could only be searched at his own house was rejected. State v. Walker, 2009 Ohio 1903, 2009 Ohio App. LEXIS 1624 (4th Dist. April 23, 2009).*

Defendant parked his car on his own without direction from the officer, so he was not stopped. The officer did not need reasonable suspicion to approach him, but he in fact had reasonable suspicion from defendant's driving around the entrance to this highest crime area of the city when he did. State v. Culbertson, 2009 Ohio 1934, 2009 Ohio App. LEXIS 1660 (2d Dist. April 24, 2009).*

Information from a sexual abuse victim was presumed to be credible and it provided PC. State v. Paquette, 2009 Ohio 1961, 2009 Ohio App. LEXIS 1653 (2d Dist. April 17, 2009).*

Defendant's denial of ownership of bags in a motel room she was visiting when the motel manager was kicking them all out because the credit card it was rented on was stolen was not an abandonment because she understood that the bags would be kept for safekeeping and not opened. State v. Brown, 228 Ore. App. 197, 206 P.3d 1180 (2009), reversed 348 Ore. 293 (2010).*


Permalink 06:18:03 pm, by fourth, 58 words, 747 views   English (US)
Categories: General

Cook Co. Jail strip searches lawyer held overnight for summary contempt

Cook County jail strip searches a domestic relations lawyer jailed over night for summary contempt. The Chicago Sun-Times reports on the contempt, which appears to have been issued without warning for something said in court, which is interesting but not important to us, except that the lawyer was stripped searched when booked in; twice according to

Permalink 12:11:26 pm, by fourth, 494 words, 444 views   English (US)
Categories: General

CA4: Handing over keys when told officer was searching trunk was not consent to search the whole car; failure to object during search not consent

When officer told defendant to get out of the car and he was searching defendant's trunk, defendant's handing over the keys to the officer was not consent to search the whole car. The limit of consent was the trunk. Defendant's silence or failure to object during the search is not acquiescence to the search. (The alternative ground of a protective search of the interior was not supported by reasonable suspicion.) United States v. Neely, 564 F.3d 346 (4th Cir. 2009):

We begin by addressing the first two factors relied upon by the district court: Neely's decision to hand his keys to Officer Tran and leave the driver's door open after exiting the vehicle. While we acknowledge that non-verbal conduct can be sufficient to establish consent, see, e.g., United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003), such conduct is still subject to Jimeno's objective reasonableness standard. And, the Government's "burden is heavier where consent is not explicit, since consent is not lightly to be inferred." United States v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984) (internal quotation marks omitted). Here, Neely did not offer his keys in response to a law enforcement officer's request to search his car, an action which might reasonably be viewed as non-verbal consent. Nor did Neely offer his keys while asking Officer Tran whether he would like to search his vehicle. Instead, Neely surrendered his keys only after Officer Tran instructed him to get out of the vehicle. Neely had already verbally placed a limit on his consent to have his vehicle searched; surrendering his keys to Officer Tran after being ordered to get out of his car was consistent with his prior limitation because Tran would need the keys to open Neely's trunk. Likewise, Neely's decision to leave the driver's side door open is not indicative of non-verbal consent. Officer Tran directed Neely to the rear of his car immediately as he began exiting the vehicle; it is thus unsurprising that Neely did not refuse to follow Tran's directions simply so that he could close the door behind him. Given the facts presented here, we find that neither of these actions are sufficient to overcome his prior verbal limitation.

. . .

Finally, the fact that Neely continued speaking with an officer during the search is essentially meaningless. The videotape of the incident clearly provides that Neely merely responded to the officer's questioning; that decision has no bearing on the scope of his consent. Moreover, taking these factors together does not alter our conclusion. Neely's decision to give Officer Tran his keys and leave his car door open were the product of cooperation with a law enforcement officer, not an intentional indication of consent. Similarly, Neely's failure to object to a search carried out while he was being questioned by a second police officer is not the type of silence we found indicative of consent in Jones. Thus, Officer Tran's search of the interior of Neely's vehicle cannot be justified on the basis of consent.

Permalink 11:47:44 am, by fourth, 362 words, 702 views   English (US)
Categories: General

ID: Random drug test by any LEO as a probation condition was valid

Idaho probation condition of random drug testing by any law enforcement condition was valid. State v. Purdum, 207 P.3d 182 (Ida. April 20, 2009), court of appeals decision posted here:

In this case, Purdum was placed on probation for possession of a controlled substance. The district court's order of probation contained the following condition:

The Defendant shall submit to random blood, breath and/or urine analysis upon the request of the Court, his probation officer or any law enforcement official.

(Emphasis added). A random evidentiary test is, by definition, one that may occur at any time and at any place. Thus, the language of Purdum's condition of probation is very similar to the language of the condition at issue in Gawron. That condition used the phrase "at any time and at any place by any law enforcement officer." Purdum's condition of probation constituted a similar express waiver of his constitutional right to be free from warrantless searches.

In addition, as was the case in Gawron, Purdum has not alleged that he did not accept the conditions of his probation or that his acceptance was involuntary or done unintelligently. See Gawron, 112 Idaho at 843, 736 P.2d at 1297. Rather, Purdum has argued on appeal, both before the Idaho Court of Appeals and this Court, that his consent was limited to the random evidentiary tests and that he did not consent to suspicionless seizure of his person for such testing.

The Idaho Court of Appeals directly addressed Purdum's claim that his consent to submit to random evidentiary testing did not mean that he consented to a seizure for such testing: ...

Officer had a report of a robbery with two Hispanic males dressed in hooded sweatshirts. There was no indication they were in a car, but he was looking for cars and it was 1 a.m. He saw a car with two men in it, about the time a car could have driven from the scene of the robbery, driving too slow and with the men slouched down so only their heads were available. When they saw the officer, they were "jumping around" inside the car. He had reasonable suspicion for the stop. State v. Nevarez, 210 P.3d 578 (Ida. App. 2009).*

Permalink 10:45:06 am, by fourth, 490 words, 466 views   English (US)
Categories: General

M.D.Pa.: Cellphone could be removed during a patdown as a potential weapon

Cellphone could be removed during a Terry patdown as a potential weapon. (Apparently the number of cellphones (6 on 3 people) was important to the government's case. There was no indication the cellphones were searched on RS.) United States v. Lopez, 2009 U.S. Dist. LEXIS 36276 (M.D. Pa. April 28, 2009):

Officer Kochanny removed a phone clipped to Martin's belt during this search, and Officer Fasan discovered at least two bulky items in Rogelio's pockets that he removed and identified as cellular phones. (Id. at 22, 42, 102.) The officers removed a total of five or six phones from the three suspects. (Id. at 22.) The officers confiscated the phones because, in their experience, arrestees sometimes carry blunt objects similar in size and shape to cellular phones that can be used as weapons. (Id. at 102.) Phones can also be used to conceal knives, shanks, or other implements with which a suspect could injure an officer. (Id. at 21-22, 102.) Removal of the phones again heightened the officers' suspicion because drug dealers frequently carry several phones to conceal the calls required to arrange drug transactions. (Id. at 22.)

. . .

Reasonable suspicion supported the pat-down search in which Officers Fasan and Kochanny removed defendants' cellular phones. As officers approached the suspects, Rogelio, Martin, and Zuniga hurried toward the opposite vehicles from those in which they had arrived. Officers noticed that the suspects had exchanged vehicle keys rather than contraband. As a result of their law enforcement training and experience, and in light of the proximity of the parking lot to the interstate, the officers reasonably believed that the suspects had conducted a car-switch transaction instead of a hand-to-hand sale. The officers knew that car-switch transactions could involve large amounts of drugs and that parties to such transactions are frequently armed. Hence, it was reasonable for them to believe that the suspects may have been armed and dangerous "because weapons and violence are frequently associated with drug transactions." See United States v. Childs, 131 F. App'x 347, 348 n.2 (3d Cir. 2005) (quoting United States v. Robinson, 119 F.3d 663, 337 (8th Cir. 1997)). The officers were therefore entitled to conduct a pat-down search for their safety.

During the search, Officer Fasan obtained multiple cellular phones from Rogelio's pockets, and Officer Kochanny removed a phone from Martin's belt. Both officers' actions were reasonable and appropriate under the circumstances. Officer Fasan removed Rogelio's phones after feeling them from the exterior of Rogelio's clothing. He appropriately recognized that a bulky object such as a cellular phone was a potential weapon, and he was permitted to remove the item for safety purposes. Edwards, 53 F.3d at 619 (stating that officer may remove blunt objects--such as a stack of credit cards--that could reasonably feel like a weapon). Officer Kochanny also acted reasonably by confiscating Martin's phone because suspects may use such objects to conceal knifes, shanks, and other weapons that could threaten officer safety. Accordingly, the court concludes that the officers did not exceed the scope of a Terry pat-down by removing defendants' cellular phones.


Permalink 11:57:33 am, by fourth, 157 words, 579 views   English (US)
Categories: General

M.D.Pa.: Bench warrant does not authorize nighttime entry

Court credits officers’ testimony that defendant consented to the search and understood English well enough. United States v. Santamaria, 2009 U.S. Dist. LEXIS 35823 (E.D. Mich. April 29, 2009).*

911 call about a home invasion at plaintiffs’ address justified the police coming and entering without a warrant. Alford v. Pousak, 2009 U.S. Dist. LEXIS 35829 (E.D. Mich. April 29, 2009).*

Executing a bench warrant for arrest did not authorize a nighttime entry since a separate showing of need is required for a nighttime entry. Perez v. Borough of Berwick, 2009 U.S. Dist. LEXIS 35778 (M.D. Pa. April 28, 2009).*

Search warrant could authorize a search for all persons on the premises. United States v. Hicks, 2009 U.S. Dist. LEXIS 36145 (E.D. Va. April 27, 2009).*

Court credits officer’s testimony that he could see marijuana seeds with his flashlight through the tinted windows of defendant’s car, and that was a valid plain view. United States v. Drake, 2009 U.S. Dist. LEXIS 35854 (E.D. Mo. April 16, 2009).*

Permalink 11:37:43 am, by fourth, 583 words, 1058 views   English (US)
Categories: General

CA10: Computer search warrant lacked particularity but good faith exception saved it

Computer search warrant was badly drafted, and it lacked particularity. However, the good faith exception saved the search because the officer sought counsel from the USMJ and AUSA in executing it. United States v. Otero, 563 F.3d 1127 (10th Cir. 2009):

Because of this, our case law requires that "warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material." Riccardi, 405 F.3d at 862 (emphasis added).

Wisely, the government does not contest that a warrant authorizing a search of "any and all information and/or data" stored on a computer would be anything but the sort of wide-ranging search that fails to satisfy the particularity requirement. Its claim, rather, is that under a natural reading of the warrant the computer search is limited to uncovering only evidence of the mail and credit card theft along Ms. Otero's delivery route. In other words, paragraphs six, seven, eight, and nine, which fall under the heading "COMPUTER ITEMS TO BE SEIZED," are limited by paragraphs two, three, and five, which fall under the separate heading of "ITEMS TO BE SEIZED" and restrict the search to "information related to or pertaining to the theft of mail, the fraudulent credit cards, bank fraud and conspiracy." App. 63.

It is true that "practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the place to be searched." United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998) (quoting United States v. Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997)). A warrant need not necessarily survive a hyper-technical sentence diagraming and comply with the best practices of Strunk & White to satisfy the particularity requirement. Nor is it beyond comprehension that the inspectors in this case would subjectively read the provisions pertaining to the computer search as being subject to the same limitations as the rest of the warrant, as the district court found they did. We agree with the district court, however, that the warrant describes the items to be seized with neither technical precision nor practical accuracy, and it therefore lacks sufficient particularity.

. . .

The present case does not precisely mirror the facts of Riccardi--here, the officer who wrote the affidavit was not directly involved in the forensic analysis of the computer, but instead instructed another officer on what to search for--but we nonetheless find them substantially similar. The fact that the officer conducting the computer search had not been involved from the beginning of the investigation does not alone militate against good faith when that officer received--and, more importantly, followed--search instructions that limited the scope of his search to crimes for which there was probable cause. Moreover, one of the more important facts that the two share in common is the officers' attempts to satisfy all legal requirements by consulting a lawyer. See id. at 864. ("By consulting the prosecutor, they showed their good faith in compliance with constitutional requirements."). Indeed, a frequent criticism of the good faith exception is that it encourages officers not to make these consultations and "risk that some conscientious prosecutor ... will say the application is insufficient when, if some magistrate can be induced to issue a warrant on the basis of it, the affidavit is thereafter virtually immune from challenge[.]" WAYNE R. LEFAVE, 1 SEARCH AND SEIZURE 68 (4th ed.). The fact that Inspector Herman, like the officer in Riccardi, made this step is an important indicator of her good faith. If more officers took such precautions we would have greater rather than less protection of Fourth Amendment rights.


Permalink 07:52:34 am, by fourth, 397 words, 586 views   English (US)
Categories: General

DC Cir.: dicta in Rasul on remand

Rasul on remand in the D.C. Cir. expounds in dicta on the application of the Fourth Amendment to aliens. Rasul v. Myers, 563 F.3d 527, 385 U.S. App. D.C. 318 (D.C. Cir. 2009)

PER CURIAM: The Supreme Court vacated our decision in Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008) (Rasul I), and remanded the case for further consideration in light of Boumediene v. Bush, 128 S. Ct. 2229 (2008). Rasul v. Myers, 129 S. Ct. 763 (2008). We do not believe Boumediene changes the outcome in Rasul I. We therefore reinstate our judgment, but on a more limited basis.

We have before us four British nationals who brought an action alleging that they were illegally detained and mistreated at the United States Naval Base at Guantanamo Bay, Cuba, from 2002 until their release in 2004. ...

. . .

"[E]mphatic" is how the Court later described its rejection of the claim that aliens outside the sovereign territory of the United States are entitled to due process rights. Verdugo-Urquidez, 494 U.S. at 269 (citing Eisentrager, 339 U.S. at 770). Following Eisentrager, the Court in Verdugo-Urquidez concluded that the Fourth Amendment did not protect nonresident aliens against unreasonable searches or seizures conducted outside the sovereign territory of the United States. Id. at 274-75. The majority noted that although American citizens abroad can invoke some constitutional protections, id. at 270 (citing Reid v. Covert, 354 U.S. 1 (1957) (plurality opinion)), aliens abroad are in an altogether different situation. Id. at 271. The long line of cases dealing with constitutional rights of both lawful resident aliens and illegal aliens establishes "only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country." Id. (citing Plyler v. Doe, 257 U.S. 202, 212 (1982) (The provisions of the Fourteenth Amendment "are universal in their application, to all persons within the territorial jurisdiction ....") (emphasis added in Verdugo-Urquidez); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5 (1953) ("The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.") (emphasis added in Verdugo-Urquidez)). Those cases could not help an alien who, like Verdugo-Urquidez and plaintiffs in this case, had at no relevant time been in the country and had "no previous significant voluntary connection with the United States," id.

Permalink 07:28:39 am, by fourth, 404 words, 600 views   English (US)
Categories: General

IL: Stop based on air freshener on mirror shown to be mistake of law

Stop was based on an air freshener hanging from the mirror supposedly obstructing driver's view. The air freshener was smaller than the officer testified, and there was no testimony that it actually obstructed the driver's view. Therefore, the stop was based on a mistake of law, and the motion to suppress was properly granted. People v. Mott, 389 Ill. App. 3d 539, 329 Ill. Dec. 314, 906 N.E.2d 159 (2009).*

Claimant's claim he was detained and did not consent in an airport is rejected. "Further, the facts of this case are markedly different from those presented in Stephens, where the bus passengers had few options to end the encounter with the officers. Particularly, McVey's argument that leaving the airport and abandoning his checked-baggage was his only option to terminate the encounter with the Agents ignores the possibility that he could have withheld consent to speak with the officers, moved to another location outside, or returned inside to the baggage carousels." United States v. Approximately $52,000 in United States Currency, 2009 U.S. Dist. LEXIS 35429 (N.D. Cal. April 10, 2009).*

Officer had reasonable suspicion that defendant's DL was suspended for life, so that justified the stop. Bannister v. State, 904 N.E.2d 1254 (Ind. 2009).*

Compound question to defendant ("I just asked him if there was anything illegal in the vehicle and if I could search it") did not make it impossible to not consent. All he had to say was "no." United States v. Barnum, 2009 U.S. App. LEXIS 8994 (8th Cir. April 28, 2009)*:

Second, even if we were to accept Barnum's characterization of Officer Hatler's request to search Barnum's rental vehicle, we still would not find that the question guaranteed Barnum's consent. Barnum's "loaded" question theory is premised on a single piece of Officer Hatler's testimony concerning his request to search Barnum's rental vehicle: "I just asked him if there was anything illegal in the vehicle and if I could search it." According to Barnum, the question's compound phrasing placed him between Scylla and Charybdis, requiring him either to give consent or appear to be concealing contraband. However, Barnum's premise does not support the conclusion that the question's compound phrasing compelled Barnum to respond "yes. " A simple answer of "no " to Officer Hatler's allegedly "loaded" question would have denied consent to the search and presumably terminated the encounter. Cf. Florida v. Bostick, 501 U.S. 429, 437 (1991) ("[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.").

Permalink 07:15:16 am, by fourth, 760 words, 650 views   English (US)
Categories: General

IL: Splitting hairs on consent by trickery to find child porn

Police who were actually investigating the possibility child porn was on defendant's computer did not misrepresent what they were looking for when they said credit card fraud, but they really knew that defendant had used his credit card on a child porn website. Possibility of credit card fraud was enough. [HA!] People v. Prinzing, 389 Ill. App. 3d 923, 907 N.E.2d 87, 329 Ill. Dec. 768 (2009):

We find this case distinguishable from Daugherty and the other cases cited by defendant. It was undisputed that Detective Smith was informed by defendant's credit card company that there was a disputed charge that had been resolved by crediting back the charge and a new card number having been issued. It was also undisputed that the disputed charge in June 2003 was around the time that the child pornography Web site charges had been incurred. While Detective Smith did not mention the potential for child pornography purchases, he was not required to provide defendant with every piece of information that he possessed while investigating the matter. In Daugherty, the theft case had been resolved and the police employed purely deceptive tactics to obtain consent whereas, in this case, the police had not resolved whether the disputed credit card charge was related to the child pornography Web site charges. The remaining cases cited by defendant involved the police affirmatively misrepresenting the defendants' rights whereas here, the police made no such misrepresentations. Therefore, it was not against the manifest weight of the evidence to find that when Detective Smith asked for consent to search defendant's computer for viruses that may have compromised his credit card information, Detective Smith did not engage in trickery, deceit or subterfuge, but, rather, he had a twofold purpose in his visit. Even if Detective Smith did use trickery, that would not necessarily render defendant's consent involuntary, as trickery is just one factor the court may consider in determining the validity of consent. See People v. Minniti, 373 Ill. App. 3d 55, 69, 867 N.E.2d 1237, 311 Ill. Dec. 251 (2007) (discussing effect of police trickery on voluntariness of confession).

Having determined that defendant's consent was voluntary, we now examine whether the police exceeded the scope of the consent. When determining whether a search is reasonable under the fourth amendment, we must determine first whether the officer's action was justified at its inception and second whether it was reasonably related in scope to the circumstances that justified the intrusion in the first place. People v. Lampitok, 207 Ill. 2d 231, 241, 798 N.E.2d 91, 278 Ill. Dec. 244 (2003). In evaluating the scope of a defendant's consent, the court considers what a reasonable person would have understood by the exchange between the officer and the defendant. People v. James, 163 Ill. 2d 302, 314, 645 N.E.2d 195, 206 Ill. Dec. 190 (1994). "[T]he parameters of a search are usually defined by the purpose of the search." James, 163 Ill. 2d at 314.

In this case, principles of law and technology collide. The court in People v. Berry, 314 Ill. App. 3d 1, 11-12, 731 N.E.2d 853, 247 Ill. Dec. 80 (2000), addressed the scope of consent with respect to electronic devices, specifically a cellular phone. Relying on various federal cases, the Berry court stated that the lack of knowledge of what the officer is searching for does not change the effect of a "general" consent. Berry, 314 Ill. App. 3d at 12. If a consent to search is entirely open-ended, a reasonable person would have no cause to believe that the search will be limited in some way, and the consent would include consent to search the memory of electronic devices. Berry, 314 Ill. App. 3d at 12. The Berry court then considered the totality of the circumstances, which involved a detective asking to look at the defendant's cell phone and the defendant responding "'go right ahead.'" Berry, 314 Ill. App. 3d at 12. The officer, after receiving the defendant's response, opened the phone and retrieved the phone number of the phone by pressing a button. Berry, 314 Ill. App. 3d at 13. The defendant knew when the detective asked to search the phone that he was investigating a murder and that he was trying to determine whether the defendant owned the phone, and the defendant placed no explicit limitations on the scope of the search, either when he gave his general consent or while the officer examined the phone. Berry, 314 Ill. App. 3d at 14. Therefore, the court determined that, based on the totality of the circumstances, the detective did not exceed the scope of the defendant's general consent to search his phone when the detective activated the phone and retrieved the phone number. Berry, 314 Ill. App. 3d at 14.

Federal courts have also considered the scope of electronic device searches. ...

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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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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"If it was easy, everybody would be doing it. It isn't, and they don't."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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