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]

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).*

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.