Archives for: October 2009

10/31/09

Permalink 03:35:25 pm, by fourth, 226 words, 404 views   English (US)
Categories: General

New law review article on third party searches after Lawrence v. Texas recognizes third party privacy rights

Thomas P. Crocker, From Privacy to Liberty: The Fourth Amendment After Lawrence, 57 UCLA L. Rev. 1 (2009). The Abstract:

This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others. Under the Supreme Court’s third-party doctrine, we have no constitutionally protected expectation of privacy in what we reveal to other persons. The effect of this doctrine is to leave many aspects of ordinary life shared in the company of others constitutionally unprotected. In an increasingly socially networked world, the Fourth Amendment may fail to protect precisely those liberties—to live in the company of others free from state surveillance and intrusion—the Constitution should protect. Against the background of the third-party doctrine, we guarantee our privacy only by avoiding ordinary acts of interpersonal sharing. By contrast, the Court in Lawrence explains that intimate conduct occurring within protected personal relationships constitutes a private sphere wherein government may not intrude. Because the third-party doctrine views privacy narrowly, this Article develops a framework for revising Fourth Amendment jurisprudence in light of Lawrence’s protection for interpersonal liberty. By following the lessons of Lawrence, this Article proposes a way to reorient Fourth Amendment jurisprudence away from its focus on privacy in order to protect interpersonal liberty.

(Hat Tip to PogoWasRight.org.)

Permalink 03:35:10 pm, by fourth, 122 words, 578 views   English (US)
Categories: General

Fourth Amendment news

Searching sex offender's houses for Halloween

San Diego County probation officers are checking the 2600 registered sex offenders in their county looking for potential probation violations for putting Halloween decorations up to "entice" children to the house. See Talk Radio 760 in San Diego from CBS8 in San Diego: Probation officers sweep up child sex offenders before Halloween:

In fact, one pumpkin outside an offender's residence is a violation under the terms of probation.

"We don't want anything that will draw kids even close to the house," Fink explained.

After a quick search of the home, everything else appears within the set guidelines.

. . .

The sex offenders who are visited give up their fourth amendment right to search and seizure as part of their conviction.

Permalink 03:30:37 pm, by fourth, 200 words, 555 views   English (US)
Categories: General

Nov. 4 in Boston, a panel discussion on three centuries of search and seizure law

On November 4th at the Old State House in Boston, where the Writs of Assistance case was argued February 24, 1761, also noted here, is a panel discussion:
“A Knock at the Door” as noted by the Bostonian society:

A Knock at the Door: Three Centuries of Governmental Search and Seizure
Wednesday, November 4, 2009, 6:30 p.m., at the Old State House
Free and open to the public

The protection against unreasonable governmental search and seizure has long been considered a fundamental American right. This concept has its roots in patriot James Otis’s 1761 legal petition opposing the Writs of Assistance and general property searches, a case heard in Old State House.

Even though guaranteed by the Fourth Amendment to the U.S. Constitution, this right has been challenged and debated many times throughout our history. Today we are confronted with new debates over wiretapping, immigration raids, and school drug searches.

Join our panelists, public historian J.L. Bell, legal scholars Frederick Lane and Joseph McEttrick, and Kurt Opsahl, in a discussion of the historical origins of this concept, as well as modern challenges to this long-cherished protection of our rights.

That would be fun. I'm already committed or I would try to go.

Permalink 09:42:35 am, by fourth, 366 words, 871 views   English (US)
Categories: General

LA2: Call to a lawyer during traffic stop a factor finding RS

Defendant was stopped in a car for a traffic offense, and she called a lawyer immediately. That, with her nervousness, justified calling for a drug dog which arrived within three minutes. State v. Stowe, 25 So. 3d 945 (La. App. 2d Cir. 2009)*:

It is clear that the defendant's shaking hands, her passenger's call to his "legal people" at the outset of the stop, her conflicting accounts of how she had arrived in Dallas, and her passenger's prior Schedule II violation on Louisiana's Interstate system (all of which the dash cam video confirms before Trooper Parker ended the traffic stop portion of the detention), gave the troopers additional reasonable suspicion by which to justify enlarging the scope of their investigation. See State v. Lopez, supra; State v. Burton, 93-828 (La. App. 3d Cir. 2/23/94), 640 So. 2d 342, writ denied, 94-0617 (La. 4/7/94), 641 So. 2d 203.

A K-9 unit arrived on the scene within three minutes of the defendant's refusal of consent to a search. A dog's sniffing around the exterior of the vehicle does not itself constitute a search. United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). The certified dog's subsequent alert, consistent with the other factors giving rise to the troopers' reasonable suspicion, gave the troopers probable cause to search for contraband. See State v. Lopez, supra. Approximately six to seven minutes elapsed from the time the traffic stop ended and the time the dog alerted to the presence of narcotics. Under these circumstances, the record fully supports the finding of the trial court that the troopers were diligent in pursuing an investigation that was likely to confirm or dispel their suspicions quickly. Neither the initial traffic stop, nor the narcotics-related extension of the stop, was unlawful. As no rights were violated, the motion to suppress was properly denied.

A civil 42 U.S.C. § 1983 case in state court over seizure of adult materials for commercial sale was the improper method for adjudicating the legality of the seizure after a criminal case was filed, even though the corporation was not a party to the criminal case. Delta Retail 45, L.L.C. v. Cox, 26 So. 3d 200 (La. App. 2d Cir. 2009).* That does nothing for the rights of the corporation. Where is its remedy?

Permalink 09:14:36 am, by fourth, 253 words, 382 views   English (US)
Categories: General

OH8: Gant not an issue in an inventory search case

Defense counsel was not ineffective for not raising a Gant issue where his appeal was decided before Gant. Even so, the search was valid under inventory and not search incident. State v. Lucic, 2009 Ohio 5686, 2009 Ohio App. LEXIS 4796 (8th Dist. October 23, 2009).*

“The information provided in the four corners of the affidavit indicates that the type of criminal activity was of a protracted and continuous nature, thus, based on the nature of the crime, a judge may properly infer that there is a fair probability that evidence of wrongdoing would still be found on the premises given the totality of the circumstances. Accordingly, the trial court correctly found the information provided in the affidavit was not stale.” Smith v. Commonwealth, 323 S.W.3d 748 (Ky. App. 2009).*

Defendant’s stop was based on overpossession of pseudophedrine. When the officer got up to him, he voluntarily turned over a cup of crushed psuedo tablets. Davenport v. State, 299 S.W.3d 859 (Tex. App. — Eastland 2009).*

The officer stopped because defendant’s car was stopped with the door open into traffic, and he wanted to see what defendant was doing that kept the door open. As he approached, he saw the defendant drop a rock of crack. The stop was with PC. State v. Jones, 2009 Ohio 5701, 2009 Ohio App. LEXIS 4793 (8th Dist. October 29, 2009).*

The issue of defendant’s consent was a fact question decided against him, and his own witness could not help him at the suppression hearing on what he heard. State v. Smith, 2009 Ohio 5692, 2009 Ohio App. LEXIS 4795 (8th Dist. October 29, 2009).*

Permalink 09:01:27 am, by fourth, 510 words, 459 views   English (US)
Categories: General

MN: Search of a baby wipes box during traffic stop patdown was justified in looking for a potential weapon

Plain feel justified seizure of a glass pipe during a patdown, and a baby wipes box could be searched for a weapon. State v. Krenik, 774 N.W.2d 178 (Minn. App. 2009)*:

Reski's testimony demonstrates that it was immediately apparent to her that the glass tube in Krenik's pocket was contraband. Reski testified that when she patted down the outside of Krenik's pocket, she "could feel a smoking glass tube" and recognized it as contraband from her prior experience. Although Reski admitted during cross-examination that she could not be certain that the object was a glass pipe and it "could have been something else," the "immediately apparent" standard does not require absolute certainty. Brown, 460 U.S. at 741, 103 S. Ct. at 1543. Reski's testimony adequately supports the district court's finding that Reski had a "basis to suspect that [the item] was a crack pipe" when she felt it. Therefore, Reski's warrantless seizure of the pipe was permitted under the plain-feel exception to the warrant requirement.

Krenik also argues that "the retrieval of the unopened baby wipes box ... is not justifiable under the 'plain-feel' doctrine [because] this item could not have been recognized as ... any kind of contraband." But Krenik's argument ignores Reski's other reason for seizing the box, to confirm that it did not contain a weapon. The scope of a pat search extends to all "concealed objects which might be used as instruments of assault." Sibron v. New York, 392 U.S. 40, 65, 88 S. Ct. 1889, 1904, 20 L. Ed. 2d 917 (1968). The Minnesota Supreme Court has held that during a valid pat search for weapons, an officer may remove a "hard object of substantial size, [even though] the precise shape or nature of [the object] is not discernible through outer clothing." State v. Bitterman, 304 Minn. 481, 486, 232 N.W.2d 91, 94 (1975). The supreme court reasoned that because "weapons are not always of an easily discernible shape, a mockery would be made of the right to frisk if the officers were required to positively ascertain that a felt object was a weapon prior to removing it." Id.

Reski felt a box-shaped object. Although she did not know what it was, she testified that she was concerned for her safety because the box could have contained a weapon. She specifically stated that "[d]ue to its size, [the box] could be used to hold any form of weapon in [it], a smaller caliber handgun, [or] a knife." Because the box could have contained a weapon, Reski was justified in removing it from Krenik's pocket. After removing the box, Reski opened it, and discovered the methamphetamine. Because the Terry frisk of Krenik was valid, the warrantless seizure of the box was justified because the box might have contained a weapon. The pipe and methamphetamine found in Krenik's pocket established probable cause for her arrest, and Krenik does not challenge the impoundment or the inventory search of her vehicle that followed her arrest. See State v. Camp, 590 N.W.2d 115, 118 (Minn. 1999) (probable cause to arrest exists when person of ordinary care and prudence would entertain honest and strong suspicion that a crime has been committed).

10/30/09

Permalink 12:56:52 pm, by fourth, 214 words, 489 views   English (US)
Categories: General

D.Del.: Affidavit for SW based on dog alert did not need to include dog training info

Affidavit for search warrant based on a dog alert did not have to include the dog’s history and training to show PC. United States v. Freeman, 666 F. Supp. 2d 454 (D. Del. 2009).

Court's should not "flyspeck" a search warrant affidavit. Reasonable inferences here support PC, and it was obtained and executed in good faith. United States v. Palma, 2008 U.S. Dist. LEXIS 111058 (N.D. Cal. December 19, 2008):

"Normally, [courts] do not 'flyspeck' the affidavit supporting a search warrant through de novo review; rather, the magistrate judge's determination 'should be paid great deference.' In addition, the Supreme Court has reminded reviewing courts that '[a]lthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, resolution of doubtful or marginal cases in this area should largely be determined by the preference to be accorded to warrants.'" [United States v. Kelley, 482 F.3d 1047,] 1050-51 [(9th Cir. 2007)] (citations omitted).

Officers responded to a shots fired call, and defendant saw them and fled, discarding a gun. The gun was not the product of any illegal police conduct. Commonwealth v. Jeudy, 75 Mass. App. Ct. 579, 915 N.E.2d 580 (2009).* (Caution: This case also discusses the policy of the exclusionary rule when it was completely unnecessary. See following post. Is this a disturbing trend?)

Permalink 07:05:34 am, by fourth, 911 words, 932 views   English (US)
Categories: General

IL: Instead of deciding the central legal issue of "stop", the court goes for the policy of the exclusionary rule

The Illinois Court of Appeals holds that the exclusionary rule does not apply absent police misconduct. It applies this holding to a case where there was no "stop," instead of simply finding there was no stop. Here, the defendant's car was already stopped on the side of the road, and the officer turned on his blue lights for safety reasons, a rule already well established to not be a stop. People v. McDonough, 917 N.E.2d 590 (Ill. App. 2009):

Given that the Supreme Court began its discussion in Herring by accepting the concession of the parties that a fourth amendment violation had occurred in that case, we distill the Supreme Court's holding as supportive of the point this court made in Garriott 16 years ago: absent police misconduct, the exclusionary rule does not apply. The reason why is simple: if the justification for the exclusionary rule is solely to deter police misconduct (as the Supreme Court reaffirmed in Herring), then the necessary condition precedent for the exclusionary rule's application is police misconduct. Thus, absent police misconduct, the exclusionary rule does not apply because there is no misconduct to deter.

The trial court here deemed defendant to be "detained" solely as a result of the trooper's activating the overhead emergency lights on his police car. The court concluded that the trooper's doing so violated the fourth amendment because, when the trooper activated those overhead lights, he had no legitimate basis for the "detention" he thereby caused. Based upon Herring and Garriott, we disagree with this conclusion because the trooper's activation of his overhead emergency lights did not constitute police misconduct, even if the trial court were correct that this action constituted a violation of the fourth amendment.

C. No Police Misconduct Occurred in This Case

The rule that absent police misconduct, the exclusionary rule does not apply is dispositive in this case because we conclude that no police misconduct occurred here. We further conclude that the trooper's activating his emergency lights as he pulled behind a stopped vehicle on a busy four-lane highway not only did not constitute misconduct, it was the entirely prudent and appropriate thing for the trooper to do. Indeed, his failure to do so could very well be viewed as dangerous.

In this case, the trial court granted defendant's motion to suppress because it found that the trooper had seized defendant in violation of his fourth-amendment rights the moment the trooper activated his overhead emergency lights. By so finding, the court essentially declared that whenever a police officer approaches an already stopped vehicle and activates his overhead emergency lights in the absence of reasonable suspicion that criminal activity has or will occur, regardless of the other circumstances that may be present, the officer's action is unlawful and should be deterred by employing the exclusionary rule.

We disagree with the trial court. Its finding places a police officer in the unreasonable position of compromising not only his safety, but also the safety of any occupants of the stopped vehicle. Further, other motorists using the highway may be put at risk because of a police car parked on the highway shoulder without its emergency lights activated to warn of its presence.

. . .

In any event, we deem nothing of the trooper's activities remotely close to the police misconduct the Supreme Court discussed in Herring that would trigger suppression. For instance, nothing about the trooper's activation of his emergency lights represents "the flagrancy of police misconduct" that constitutes an important step in the calculus of applying the exclusionary rule. Herring, 555 U.S. at , 172 L. Ed. 2d at 506, 129 S. Ct. at 701. Nor do the trooper's actions constitute "systemic error or reckless disregard of constitutional requirements" (Herring, 555 U.S. at , 172 L. Ed. 2d at 509, 129 S. Ct. at 704), or the "culpability of the police," thereby suggesting "the potential of exclusion to deter wrongful police conduct" (Herring, 555 U.S. at , 172 L. Ed. 2d at 502, 129 S. Ct. at 698). In sum, the trooper did nothing improper in this case. Because no police misconduct is present, the exclusionary rule does not apply.

This case is an example of Fourth Amendment bias--the court does not like the Fourth Amendment, so it goes way beyond the requirements of the case to uphold the action of the police. The court could not just state there was no "stop" because that does not fit into its bias. Instead, it went for the exclusionary rule when that should not have even been the issue. This is Justice Frankfurter's Rabinowitz caution in action; United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (dissenting opinion):

It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in. It makes all the difference in the world whether one approaches the Fourth Amendment as the Court approached it in Boyd v. United States, 116 U.S. 616 , in Weeks v. United States, 232 U.S. 383, in Silverthorne Lumber Co. v. United States, 251 U.S. 385 , in Gouled v. United States, 255 U.S. 298, or one approaches it as a provision dealing with a formality. It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper.

10/29/09

Permalink 07:19:14 pm, by fourth, 1561 words, 1146 views   English (US)
Categories: General

D.Ore.: SW for e-mail does not require notice to the account holder; e-mail is not that private after all

On the WSJ Law Blog this afternoon On Gmail and the Constitution, LegalBlogWatch, and on Techblogger and yesterday on The Volokh Conspiracy, is a report of In the Matter of an Application of the United States for a Search Warrant on the Contents of Electronic Mail, 665 F. Supp. 2d 1210 (D. Ore. 2009), holding that the Fourth Amendment does not require notice to an e-mail account holder of the contents of a search warrant to an ISP for the content of e-mails.

This is an interesting opinion and worth the read. The sad fact is that an amendment will be required to put a notice provision into the Stored Communications Act. People think e-mail is private like letters in transit, but "[t]he blunt fact is, they are not." Technology is steadily overcoming the Fourth Amendment. From GPS to e-mail, our privacy is slipping away, and older notions of the meaning of the reasonable expectation of privacy no longer seem to apply. If people think that e-mail is private, then why cannot they have a subjective expectation of privacy "that society is prepared to recognize as 'reasonable'"? Katz, infra, at 361 (Harlan, J., concurring).

II. The Constitutional Notice Requirement is Met by Executing the Warrant on a Third Party

As discussed earlier, the SCA was intended to codify overarching Fourth Amendment protections into a specific statute. What Fourth Amendment protections, if any, conferred on e-mail and other electronic communication independent of the SCA is, to date, unclear. See Kerr, supra, at 1210-12. Assuming, for the sake of argument, that the e-mails at issue in this case are protected under the Fourth Amendment, it is necessary to determine whether there is a constitutional requirement for notice to the subscriber of the e-mail account.

Although the Fourth Amendment does not prohibit surreptitious entries, per se, the absence of a notice requirement in a warrant “casts strong doubt on its constitutional adequacy.” United States v. Freitas (Freitas I), 800 F.2d 1451, 1456 (9th Cir. 1986) (internal citations omitted). The Supreme Court has noted that failing to require notice and return procedures for a warrant allows the government full discretion regarding what to seize, and thus allows searches and seizures “without adequate judicial supervision or protective procedures.” Berger v. New York, 388 U.S. 41, 60 (1967) (striking down a New York law that permitted any judge to issue an ex parte order for eavesdropping upon oath or affirmation of an attorney or officer, as violating the Fourth Amendment due to lack of requirement for particularity as to the related crime, the place to be searched or conversations sought, and a failure to require exigent circumstances). The sanctity of the home is often cited as the central purpose for this notice requirement, but the requirement has not been explicitly limited to searches of homes. See, e.g., Freitas I, 800 F.2d at 1456 (stating that “[t]he mere thought of strangers walking through and visually examining the center of our privacy interest, our home, arouses our passion for freedom as does nothing else”).

Notice does not always have to be provided before a search or seizure occurs. See Dalia v. United States, 441 U.S. 238, 248 (1979) (holding that “[t]he Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment”). “[O]fficers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence.” Katz v. United States, 389 U.S. 347, 355 n. 16 (1967) (citing Ker v. California, 374 U.S. 23, 37-41 (1963)); see also Nordelli v. United States, 24 F.2d 665, 666-67 (9th Cir.1928) (holding that Rule 41(d), now Rule 41(f)(1)(C), does not invariably require that the copy of the warrant and receipt be served before a search takes place). However, when there is no advance notice, a substitute must exist to satisfy the Fourth Amendment, as in Title III, which has been held to provide “a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance.” Dalia, 441 U.S. at 248.

It is clear that notice is an essential part of the reasonableness calculus in judging searches and seizures under the Fourth Amendment. The Federal Public Defender has argued that this constitutional notice requirement supports Judge Hubel's determination that the copy of the warrant and receipt (what the parties refer to as notice) must be provided to the subscriber to the e-mail account, rather than just to the ISP. The notice must be provided to the subscriber because the ISP “has a far lesser privacy interest in the content of its subscriber's e-mails than the subscribers themselves.” (Amicus Br. (# 28) 21.)

This argument fails to take into account the third party context in this case. If a suspect leaves private documents at his mother's house and the police obtain a warrant to search his mother's house, they need only provide a copy of the warrant and a receipt to the mother, even though she is not the “owner” of the documents. See Fed.R.Crim.P. 41(f)(1)(C) (stating that the officer executing the warrant “must give a copy of the warrant and a receipt ... to the person from whom, or from whose premises, the property was taken”). In such a case, it is irrelevant that the suspect had a greater privacy interest in the content of the documents than did his mother. When he left the documents in her possession he no longer has a reasonable expectation of privacy in their contents. See California v. Greenwood, 486 U.S. 35, 41 (1988) (holding that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” (quoting Smith v. Maryland, 422 U.S. 735, 743-44 (1979))); see also United States v. Miller, 425 U.S. 435, 443 (1976) (“This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” (citing United States v. White, 401 U.S. 745, 752 (1971))). In fact, the suspect in such a case, were he to become a defendant in court, would not have standing to object if there were constitutional deficiencies in the warrant used to search his mother's home. United States v. Payner, 447 U.S. 727, 731-32 (1980) (holding that a defendant had no standing to object to the illegal seizure of his financial records from his banker); see also Rawlings v. Kentucky, 448 U.S. 98, 105-06 (1980) (holding that defendant did not have standing to object to search of a third party's purse, despite the fact that he claimed ownership of the drugs found in that purse, because he had no legitimate expectation of privacy in someone else's purse); Rakas v. Illinois, 439 U.S. 128, 149 (1978) (holding that defendants could not make a Fourth Amendment claim regarding a search of someone else's car because they had no “legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers”).

Similarly, in the third party subpoena context, the “general rule [is] that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated.” Miller, 425 U.S. at 444. In Miller, the Court held that bank records obtained from a bank pursuant to a subpoena were admissible against the bank depositor whose records had been seized. Id. at 445. The Court first determined that the depositor had no legitimate expectation of privacy in the records because they were instruments used in commercial transactions and the information was “voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Id. at 442-43. When no expectation of privacy was found, the court applied the general rule for third party subpoenas, affirming the district court's denial of the motion to suppress the bank records. Id. at 444-45.

Here, the defendants voluntarily conveyed to the ISPs and exposed to the ISP's employees in the ordinary course of business the contents of their e-mails. The Google privacy policy explicitly states that Google will share personal information of its subscribers when it has “a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to ... satisfy any applicable law, regulation, legal process or enforceable governmental request.” ... Thus subscribers are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and can be shared with the government under the appropriate circumstances. Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

In this third party context, the Fourth Amendment notice requirement is satisfied when a valid warrant is obtained and served on the holder of the property to be seized, the ISP. In this case, the ISPs were served with the warrants to obtain the relevant e-mails. The requirements of the Fourth Amendment were satisfied.

Permalink 06:59:03 pm, by fourth, 499 words, 341 views   English (US)
Categories: General

W.D.Mich.: Circumstances of issuance of SW are excluded from trial on defense motion

Testimony about the issuance of the search warrant is excluded at trial. United States v. Rodgers, 2009 U.S. Dist. LEXIS 99605 (W.D. Mich. October 26, 2009):

The government contends that the evidence of the warrant is necessary to prevent jury confusion regarding the details and timing of the investigation. According to the government, agents obtained consent from the owner of a residence to conduct the search of that residence, but did not immediately search a locked room used by Defendant until they obtained a warrant.

The probative value of evidence regarding the warrant depends upon how it arises. Generally, the Court will permit limited references to the search warrant if given as part of an officer's testimony for the purpose of explaining his course of conduct; however, the Court generally will not permit testimony as to the procedures for obtaining the warrant, or that a judge approved the warrant, unless the validity of the search and/or the warrant is in issue at trial.

The USMJ’s conclusions on the credibility of the witnesses is supported by the evidence, so it is affirmed. United States v. Hudson, 2009 U.S. Dist. LEXIS 99673 (S.D. Fla. October 26, 2009).*

Defendant’s stop by a patrol officer was made at the request of a narcotics officer, and it was without reasonable suspicion. State v. Estabillio, 121 Haw. 261, 218 P.3d 749 (2009):

The evidence before the circuit court at the suppression hearing relating to Vice-Officer Prudencio's reasonable suspicion that Estabillio was in the possession of drugs was that Vice-Officer Prudencio (1) had information from a confidential informant that Estabillio was a mid-level drug dealer and (2) observed Estabillio to "be very nervous." Inasmuch as no evidence was presented during the suppression hearing regarding the identity or previous reliability of the "confidential informant," the tip that Vice-Officer Prudencio garnered from such informant was akin to an anonymous tip. The ICA has previously held that "an anonymous tip that [the d]efendant 'might have [drugs] in his possession'" was not sufficient to establish reasonable suspicion for an investigatory detention. Kachanian, 78 Hawai'i at 480-81, 896 P.2d at 936-37. Thus, Vice-Officer Prudencio's statement that a confidential informant had provided him with such information was insufficient to form the basis for a reasonable suspicion.

Additionally, nervous, evasive behavior can be a pertinent factor in determining reasonable suspicion, see Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); however, "unless it is unusually severe or persistent, or accompanied by other, more probative, grounds for reasonable suspicion, it is of limited significance in determining whether reasonable suspicion exists." United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2005) (citations and internal quotation marks omitted). In our view, Vice-Officer Prudencio's observation that Estabillio was "very nervous," without more, "is of limited significance in determining whether reasonable suspicion exists." Id. We, therefore, conclude that Vice-Officer Prudencio's separate drug investigation was not supported by reasonable suspicion. Consequently, the investigation constituted an unconstitutional seizure. Accordingly, all of the evidence recovered as a result of the unconstitutional seizure must be suppressed as fruit of the poisonous tree.

Permalink 06:25:17 pm, by fourth, 397 words, 434 views   English (US)
Categories: General

OH2: Taking defendant in for fingerprinting was unreasonable

Taking defendant in for fingerprinting was unreasonable, so the search of her purse in transit was unreasonable. State v. Byrd, 2009 Ohio 5606, 185 Ohio App. 3d 30, 923 N.E.2d 161 (2d Dist. 2009):

[T]he crucial issue before us is whether, under those facts, the officers violated the Fourth Amendment by beginning to transport Byrd to jail for fingerprint identification. Based on our review of the record, we conclude that they did. Byrd plainly did not consent to being transported to jail for fingerprinting. Nor did the officers have judicial authorization to transport her. At best, the officers may have had articulable suspicion that Byrd and her companions were engaged in some criminal activity and that she might not have been who she claimed. In Hayes v. Florida (1985), 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705, the U.S. Supreme Court held that the Fourth Amendment prohibits transporting a suspect to the station house for fingerprinting absent probable cause, the suspect's consent, or prior judicial authorization. Id. at 814-816. While articulable suspicion may be enough to justify a brief detention in the field for fingerprinting, it does not justify the involuntary removal of a suspect to the police station, which is sufficiently akin to arrest to require probable cause. Id. at 816.

Defendant failed to show that his probation search was unreasonable or that the probation officer was a “stalking horse” for the police. State v. Hendricks, 2009 Ohio 5556, 2009 Ohio App. LEXIS 4691 (8th Dist. October 22, 2009)*:

[*P20] There is no evidence in the record that the sheriffs department did anything to press the probation officer into conducting a search of Hendricks's home. Although the tip was passed on from the sheriff's department to Hendricks's probation officer and detectives from the sheriff's department accompanied the probation officer to Hendricks's home, there is no evidence that the sheriff's department used the search as a fishing expedition. The fact that the probation officer and the sheriff's department worked together to search Hendricks's apartment does not make the search invalid.

Search warrant for a private residence permitted search of all persons found there, including visitors, and Ybarra is distinguishable because that involved a public place. State v. Williams, 2009 Ohio 5553, 2009 Ohio App. LEXIS 4695 (8th Dist. October 22, 2009).

Under established Ohio precedent, it is not a violation of the Fourth Amendment to convict a driver for refusing a breath test for DUI. State v. Wilson, 2009 Ohio 5663, 2009 Ohio App. LEXIS 4767 (5th Dist. October 23, 2009).*

Permalink 04:51:35 am, by fourth, 121 words, 692 views   English (US)
Categories: General

Fourth Amendment news

"6 Imams case" settles

On November 23, 2007 is this post: Six Imams stated claim for false arrest before a flight.

The case just settled, and the WSJ goes crazy.

Re-Upping the PATRIOT Act

On Think Tank West, on re-upping the PATRIOT Act is this thoughtful piece: Some Thoughts on the New Surveillance. The last paragraph:

If we’re going to avoid this, we need to attune ourselves to the ways modern surveillance is qualitatively different from past search tools, even if words like “wiretap” and “subpoena” remain the same. And we’re going to need to stop thinking only in terms of isolated violations of individual rights, but also consider the systemic and structural effects of the architectures of surveillance we’re constructing.

10/28/09

Permalink 05:04:41 am, by fourth, 1060 words, 619 views   English (US)
Categories: General

CA10: Using stolen ID to rent a storage building showed no REP in it

"This case presents the novel issue of whether an individual can have a 'reasonable expectation of privacy' in a storage unit rented with a stolen identity." He doesn't. Using a stolen ID to rent the building was the crime of identity theft. United States v. Johnson, 584 F.3d 995 (10th Cir. 2009):

Even assuming that Johnson established that he had a subjective expectation of privacy in the storage unit, we conclude that he did not show that his expectation of privacy was one that society would recognize as objectively reasonable.

2. No One Approach Can Accurately Distinguish Whether a Defendant Has a Reasonable Expectation of Privacy

There is no talismanic test to determine whether an expectation of privacy is one that society is prepared to accept as reasonable. See O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality) (“We have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable.”). Instead, as LaFave’s definitive treatise notes, the Supreme Court has appeared to utilize four distinct but coexisting approaches to the “reasonable expectation of privacy” test, reflecting “four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model.” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1(b), at n.82.1 (4th ed. 2004 & Supp. 2008-09) (quoting Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 503 (2007)). Thus, at times the Court has looked to positive law, such as property and contract law, to determine whether a defendant could establish a reasonable expectation of privacy. See Rakas, 439 U.S. at 143 n.12, 148 (“[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society”; passengers could not establish a reasonable expectation of privacy because they “asserted neither a property nor a possessory interest in the automobile [searched] nor an interest in the property seized”); see also United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001) (“[W]ithout a possessory or property interest in the vehicle searched, passengers lack standing to challenge vehicle searches.”) (internal quotation omitted); Kerr, supra, at 516-19. Other times the Court has considered whether government conduct interfered with social customs and norms and “the everyday expectations of privacy” that a reasonable person would expect to remain hidden. See Minnesota v. Olson, 495 U.S. 91, 98 (1990) (overnight social guest had reasonable expectation of privacy in host’s home; social customs and norms made it reasonable to expect that guest could object to government’s presence at the home); see also United States v. Rhiger, 315 F.3d 1283, 1286-87 (10th Cir. 2003) (social guests have legitimate expectation of privacy in the host’s home); Kerr, supra, at 508-12.

Ultimately, however, Professor Orin Kerr suggests that the first three models are primarily components to be considered in applying the ultimate fourth test. Kerr, supra, at 506. Indeed, seemingly since the advent of the reasonable expectation of privacy test in Katz5 scholars have emphasized that the “‘ultimate question’” of whether a privacy expectation is reasonable “‘is a value judgment.’” 1 LaFave, supra, § 2.1(d), at 443 (quoting Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974)). “‘It is whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.’” Id. (quoting Amsterdam, supra, at 403); see also Sherry F. Colb, What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy, 55 Stan. L. Rev. 119, 124 (2002) (arguing that the reasonable expectation of privacy test that determines which police activity is outside the scope of the Fourth Amendment forces the courts to engage in a normative inquiry reflecting social norms).

3. Johnson Did Not Have a Reasonable Expectation of Privacy in a Storage Unit that his Girlfriend Rented with a Stolen Identity

People generally have a reasonable expectation of privacy in a storage unit, because storage units are secure areas that “command a high degree of privacy.” United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir. 1992) (“Common experience of life ... [s]urely teaches all of us that the law’s enclosed spaces ... are frequently the objects of [our] highest privacy expectations.” (quotation omitted)). And an individual can have a recognized privacy expectation in a storage space even when he or she is not the lessee of the unit. See, e.g., United States v. Johns, 851 F.2d 1131, 1135-36 (9th Cir. 1988) (owner of objects in storage unit on which he paid part of rent had a reasonable expectation of privacy in the unit, even though his name did not appear on the lease); United States v. Chaves, 169 F.3d 687, 690-91 (11th Cir. 1999) (defendant had standing to challenge search of warehouse he did not rent, where defendant possessed the only key to the warehouse and stored personal and business papers there); 6 LaFave, supra, § 11.3(f), at 221 (citing cases).

However, the record indicates that Johnson’s rental of the storage unit at issue here was not orthodox. Specifically, Johnson directed Christensen to enter into the rental agreement using Haroldsen’s stolen identity. For several reasons, this fraud convinces us that the reasonableness of any privacy expectations Johnson might have had were undermined by his and Christensen’s decision to use Haroldsen’s identity fraudulently to obtain the unit. [It was identify fraud.]

While some courts have found an expectation of privacy when an individual uses an alias or a pseudonym, see, e.g., United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992) (“[I]ndividuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names.”), such a situation is distinguishable because it is not necessarily illegal to use a pseudonym to receive mail unless fraud or a stolen identification is involved. Here, however, stolen identification was clearly involved. And because of the potential harm to innocent third parties, there is a fundamental difference between merely using an alias to receive a package and using another’s identity. Indeed, courts have similarly found that a defendant does not have a reasonable expectation of privacy in the contents of property that he had fraudulently purchased using another’s financial information. (bracketed material added)

The Volokh Conspiracy post on the case, by Orin Kerr, here.

Permalink 12:30:26 am, by fourth, 527 words, 408 views   English (US)
Categories: General

CA10: Having defendant drive 8 more miles for a dog sniff with RS was not unreasonable

Once the officer had reasonable suspicion for further detention, it was not unreasonable to have the defendant drive eight more miles on down the highway, the direction defendant was going, to where a drug dog was located to have a dog sniff. It was significant it was a state DOT parking lot and not a police station, and, on the totality, it was not an arrest. United States v. White, 584 F.3d 935 (10th Cir. 2009):

Defendants rely on United States v. Arango, 912 F.2d 441 (10th Cir. 1990), to argue that their investigative detention became an arrest when Trooper Dean directed them to the KDOT office. Arango, however, is distinguishable. In that case, a Utah highway patrol trooper stopped a truck for speeding. See 912 F.2d at 443. During the stop, the trooper became suspicious because, among other reasons, it appeared that the truck's bed had been modified or altered. See id. The trooper never returned the driver's license and the truck's registration. See id. Instead, as a pretext for continuing to search the truck, the trooper "told Arango that he had to follow [the trooper] seven miles to the sheriff's office in Richfield to post bail for the traffic citation." Id. Arango, with a state patrol vehicle both in front and behind him, drove to the sheriff's office. See id. Under those circumstances, this court held that "[o]nce the police told Arango to come with them to the sheriff's office, the line between [investigative] detention and de facto arrest was crossed." Id. at 447. Because the court concluded that the officer had probable cause to arrest Arango at that point, however, the court did not delve further into the factual intricacies that transformed that situation from an investigative detention into an arrest. See id.

There are at least three significant reasons why the case at issue here is distinguishable from Arango, as well as the cases on which Arango relies. First, here, Trooper Dean did not retain White's paperwork. While this may seem like a minor detail, it bolsters the conclusion that White would be free to go on his way after the canine investigation, if the dog sniff dispelled the officer's reasonable suspicions. Second, Dean saw the trip to the Alma KDOT as a means to expedite the drug dog sniff -- and explained that to White.

Third, Dean asked White to go to a KDOT parking lot, and not a police station. While there are admittedly no bright lines in this area of jurisprudence, courts have reiterated that transporting a suspect to a police station weighs heavily in the reasonableness analysis. See Kaupp v. Texas, 538 U.S. 626, 630, 123 S. Ct. 1843, 155 L. Ed. 2d 814 (2003) (per curiam) (noting Supreme Court has "never sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes absent probable cause or judicial authorization") (quotation, alterations omitted); Shareef, 100 F.3d at 1508 (noting that "[t]ransportation of a defendant to the police station can not be justified absent probable cause to believe the defendant committed a crime"). For these reasons, we conclude Arango and the cases on which it relies do not control here.

Permalink 12:20:12 am, by fourth, 326 words, 569 views   English (US)
Categories: General

N.D.Ind.: State DA's nolle pros does not show a Fourth Amendment violation chargeable to defense counsel's knowledge

The mere fact a state prosecutor nolle prossed charges against the defendant does not show that there was a Fourth Amendment problem with the case. United States v. Mallett, 2009 U.S. Dist. LEXIS 98595 (N.D. Ind. October 22, 2009):

The fact that the state charges involving the April drugs were dismissed by the state court does not establish that the drug evidence was seized in violation of the Defendant's Fourth Amendment rights. Cf. Cieslowski, 410 F.3d at 360 (noting that a state prosecutor's concession of a Miranda violation "is certainly not binding on the federal court"). Here, there was not even a concession of a constitutional violation--just the state's exercise of discretion to dismiss the case for insufficient evidence to proceed to trial. The Defendant's reliance on the state court dismissal does not prove the existence of a viable suppression argument. The Defendant's confidence that a motion to suppress would have been successful because the search was conducted without a warrant is likewise misplaced because it fails to consider exceptions to the warrant requirement, including exigent circumstances, search incident to arrest, and consent.

Even if the Court were to assume that the Defendant could show that he would have most likely prevailed on a motion to suppress, the Defendant cannot establish the second prong of the Strickland analysis--that he was prejudiced by counsel's actions.

Defense counsel’s failure to argue a denied suppression motion on appeal where the issue was clearly unmeritorious was not IAC. United States v. Throckmorton, 2009 U.S. Dist. LEXIS 98352 (W.D. Pa. October 22, 2009).*

Defense counsel adequately presented a consent search claim that failed, and he was not ineffective for not citing one case that did not even apply on its facts. Herndon v. United States, 2009 U.S. Dist. LEXIS 98526 (M.D. Tenn. October 22, 2009).*

Allegation in 1983 case that police arrested plaintiff for possession of marijuana knowing he was a licensed medical marijuana user stated a claim for relief. Allen v. Kumagai, 356 Fed. Appx. 8 (9th Cir. 2009) (unpublished).*

10/27/09

Permalink 12:17:47 pm, by fourth, 149 words, 435 views   English (US)
Categories: General

New law review article on the Internet and the Fourth Amendment

Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, Stanford Law Review (forthcoming), linked in the Cioffi post. The SSRN Abstract:

This article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.

Permalink 06:27:09 am, by fourth, 409 words, 714 views   English (US)
Categories: General

OH8: During a consent stop, the detainee must refuse to give ID to terminate stop

In a consensual encounter that leads to a request for ID, the defendant has the burden of refusing to give his ID to terminate it. State v. White, 2009 Ohio 5557, 2009 Ohio App. LEXIS 4679 (8th Dist. October 22, 2009):

[*P8] The United States Supreme Court has identified three types of police-citizen encounters: (1) consensual encounters, (2) investigatory stops, and (3) arrests. Lakewood v. McLaughlin (Oct. 28, 1999), Cuyahoga App. No. 75134, 1999 Ohio App. LEXIS 5092, citing Florida v. Royer (1982), 460 U.S. 491, 501-507, 103 S.Ct. 1319, 75 L.Ed.2d 229.

[*P9] Consensual encounters do not trigger Fourth Amendment protections. Florida v. Bostick (1991), 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389. During a consensual encounter, a law enforcement officer need not articulate reasonable suspicion and may approach an individual to ask questions, engage in conversation, check identification, ask for consent to search luggage, and so on. Id. So long as a reasonable person would feel free to ignore the law enforcement officer, the encounter is consensual. Id.

[*P10] In the instant case, Haines and White engaged in a consensual encounter. Haines approached White in a public park, asked about his well-being, and learned why he had slept in the park. This was a friendly exchange, and White was free to refuse to answer. Then Haines asked for White's identification, which White voluntarily provided.

[*P11] On appeal, White argues that Haines violated his Fourth Amendment rights when he asked for identification. He claims that once Haines ascertained that White was all right, Haines should have ended the inquiry. But according to Bostick, a law enforcement officer may ask for identification during a consensual encounter. White bore the burden to end the consensual encounter by refusing to provide identification.

[*P12] Upon learning that White had an Ohio I.D. card, Haines could articulate reasonable suspicion that criminal activity was afoot. Individuals who possess an Ohio I.D. card may not also possess a driver's license, and Haines found White in the driver's seat, alone, in an apparently operational vehicle he claimed to have driven to the park. Haines investigated the matter and learned that White's license had been suspended. At that point, Haines had probable cause to arrest White.

What about Hiibel where failure to give ID can support an arrest? Hiibel goes uncited. And who can realistically believe that they can refuse an officer's request [read, demand] for ID? Does this case mean that Ohioans can just refuse to give ID? How do they know it is a consensual stop? Do they do so at their peril?

Permalink 06:01:17 am, by fourth, 328 words, 426 views   English (US)
Categories: General

D.Utah: Video of stop established standing

A back seat passenger had no standing, but the others had a sufficient possessory interest to challenge the search. They did not have to testify to have standing; the video of the stop was sufficient. United States v. Delgadillo, 2009 U.S. Dist. LEXIS 98373 (D. Utah October 22, 2009):

Here, the court finds that uncontested evidence from the hearing is sufficient to establish standing for both men. First, Sergeant Nixon testified that the SUV's registration listed Crystal Sanchez as one of the registered owners of the SUV. Second, the video of the stop contains uncontroverted statements by Mr. Banuelos and Mr. Delgadillo that Mr. Delgadillo borrowed the car from his wife Crystal Sanchez and that Mr. Banuelos was driving the car at the request of Mr. Delgadillo, who Mr. Banuelos believed owned the SUV.

This case is somewhat similar to Valdez Hocker, in which the court held that the driver had standing even though he borrowed the car from someone other than the registered owner, because the driver reasonably believed the lender had a familial relationship with the registered owner and had authority to lend him the car. 333 F.3d at 1209-10. The Valdez Hocker court also noted that if the defendant had claimed he personally obtained possession from the registered owner, as Mr. Delgadillo did, "he would 'plainly have a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle.'" Id. at 1209 (quoting United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990)).

As a passenger, defendant had no standing interest in the vehicle to challenge its search. United States v. Ferguson, 667 F. Supp. 2d 567 (M.D. N.C. 2009).*

The false statements in the affidavit for the search warrant were not shown to be intentionally made, since defendant carried the burden on that [how do you prove that except by circumstances?], but, even so, excluding the information, it was not critical to the finding of probable cause. State v. Harrington, 2009 Ohio 5576, 2009 Ohio App. LEXIS 4702 (1st Dist. October 23, 2009).*

10/26/09

Permalink 04:15:20 pm, by fourth, 17 words, 330 views   English (US)
Categories: General

Fourth Amendment news

Permalink 04:01:35 pm, by fourth, 1555 words, 2094 views   English (US)
Categories: General

E.D.N.Y.: General search warrant for e-mail fails Fourth Amendment and good faith exception did not apply

In the Bear Sterns fraud case, as to defendant Matthew Tannin, the trial judge ruled today that the search warrant to Google for e-mail did not comply with the warrants clause of the Fourth Amendment because it was too general. United States v. Cioffi, 668 F. Supp. 2d 385 (E.D. N.Y. 2009), Doc. 225. An important case on computer searches and extremely interesting reading (I got it free from PACER late this afternoon):

Document searches pose unique Fourth Amendment concerns. As the Supreme Court noted more than 30 years ago:

[T]here are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. ... [R]esponsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.

Andresen, 427 U.S. at 482 n.11. The dawn of the Information Age has only heightened those concerns. The risk of exposing intimate (and innocent) correspondence to prying eyes is magnified because “[c]omputers ... often contain significant intermingling of relevant documents with documents that the government has no probable cause to seize.” United States v. Vilar, 2007 WL 1075041, at *35 (S.D.N.Y. 2007) (citation and internal quotation marks omitted); see also United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 1005 (9th Cir. 2009) (“Seizure of ... Google’s email servers to look for a few incriminating messages could jeopardize the privacy of millions.”). However, “it is precisely because computer files can by intermingled and encrypted that the computer is a useful criminal tool.” Vilar, 2007 WL 1075041, at *35.

Courts and commentators have wrestled with how best to balance privacy interests and legitimate law-enforcement concerns in the context of computer searches. One approach would require law-enforcement officials to specify a search protocol ex ante and to use, whenever possible, “key word searches ... to distinguish files that fall within the scope of a warrant from files that fall outside the scope of the warrant.” Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 108 (1994). Another would require the creation of “firewalls” to prevent investigators and prosecutors from obtaining the results of a computer search until documents within the scope of the warrant had been segregated by a third party. The Ninth Circuit recently endorsed variants of both procedures, among others, to minimize the intrusiveness of computer searches. See Comprehensive Drug Testing, 579 F.3d at 1006 (“Segregation and redaction must be either done by specialized personnel or an independent third party. ... The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.”). As Judge Karas noted in Vilar, however, the majority of courts to have considered the question have not required the government to specify its search protocol in advance. See 2007 WL 1075041, at 37-38 (citing cases); see also Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 572 (2005) (“[T]he [computer] forensics process is too contingent and unpredictable for judges to establish effective ex ante rules.”).

To date, the Second Circuit has not taken sides in the debate on the particularity required for computer searches. There is, however, one form of particularity whose absence the Second Circuit has unequivocally and unqualifiedly condemned: “[A]uthorization to search for ‘evidence of a crime,’ that is to say, any crime, is so broad as to constitute a general warrant.” George, 975 F.2d at 76. “[A] fortiori a warrant not limited in scope to any crime at all is ... unconstitutionally broad.” Id. at 77. George represents not simply a majority view, but the unanimous view of courts across the nation.

This case, however, is not about search terms or firewalls. It is, rather, about the fundamental and venerable prohibition on general warrants. Since “it is obvious that a general warrant authorizing the seizure of evidence without mentioning a particular crime or criminal activity to which the evidence must relate is void under the Fourth Amendment,” “no reasonably well-trained officer could believe otherwise.” George, 975 F.2d at 77. Before Groh, an executing officer might reasonably (and correctly) believe that his or her knowledge of the probable-cause affidavit would, under Bianco, cure a facially overbroad warrant. But Groh has been on the books since 2004. Indeed, the Supreme Court believed no reasonable officer could question its holding even then. Since Groh was a civil case, the Court was not called upon to directly apply Leon’s good-faith exception; however, it did address – and reject – the defendant’s claim of qualified immunity, the doctrine upon which Leon was based:

Given that the particularity requirement is set forth in the text of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid. ... [A]s we observed in [Leon], ‘a warrant may be so facially deficient – i.e., in failing to particularize the place to be searched or the things to be seized – that the executing officers cannot reasonably presume it to be valid.’ This is such a case.

540 U.S. at 564-65 (quoting Leon, 468 U.S. at 923).

IV

The government has also invoked the “inevitable discovery” doctrine, under which unlawfully seized evidence is not suppressed if “the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444 (1984). The Second Circuit has held that “[t]he exception requires the district court to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred.” United States v. Eng, 997 F.2d 987, 990 (2d Cir. 1993) (emphasis in original). The government does not -- and could not -- argue that the November 23rd Email would have been discovered by lawful means had the Warrant never been executed. Rather, it argues that the email could lawfully be obtained through another, more particularized warrant now that the Warrant has been invalidated. This distinction is dispositive because for purposes of the doctrine, timing is everything.

. . .

Even if I were to restrict the government to the facts set forth in the Affidavit, a more fundamental problem would remain. The “inevitable discovery” doctrine is essentially a rule of harmless error. See Nix, 467 U.S. at 443 n.3 (“The ultimate or inevitable discovery exception to the exclusionary rule is closely related in purpose to the harmless-error rule[.]”). No court has ever endorsed the view that it would allow the government to retroactively cure a Fourth Amendment violation, and it is easy to see why. The violation is not the discovery of incriminating evidence, but the invasion of the searchee’s privacy. Since such a violation is inherently irremediable, the exclusionary rule exists to deter violations in the first instance. See Elkins v. United States, 364 U.S. 206, 217 (1960) (“The [exclusionary] rule is calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it.”). It is one thing to say that there is no need to deter by suppressing evidence that would have been discovered regardless of unconstitutional conduct; it is quite another to allow the government a second chance to fix a problem that never should have arisen.

V

In concluding, I note that my observation in Cohan--that, in light of Groh, a facially invalid warrant cannot be salvaged unless a particularized affidavit is attached to the warrant and incorporated into the warrant by reference--was technically dicta since I found that the warrant there was sufficiently particular. See 628 F. Supp. 2d at 362. Nonetheless, I thought that this dicta was appropriate to alert the government that if it did not heed Groh’s holding in the future, it would risk the suppression of evidence that it wished to introduce at trial.

I have been the assigned judge on this case since its inception over a year ago. Cohan was issued this past June, two weeks before the Warrant was sought. The government was, therefore, on explicit notice that my understanding of the Supreme Court’s holding in Groh would undoubtedly oblige me strike down a facially invalid warrant in the absence of incorporation and attachment of the supporting affidavit.

CONCLUSION

Tannin’s motion to suppress is granted. The government is barred from introducing the November 23rd Email into evidence in its case-in-chief.

Newslinks: Judge Deals Huge Blow To Prosecution In Bear Stearns Hedge Fund Case on Business Insider; Tannin ‘Blow Up’ E-Mail Won’t Be Seen by Fraud Jury on Bloomberg.com; NYTimes.com: Judge in Bear Trial Deals Setback to Prosecutors.

The decision is criticized in Volokh Conspiracy as unnecessary because the government could have gotten the information by subpoena without risking an overbreadth challenge, or would it? What about standing?

Up until now, I would have thought that a person had no standing in his e-mail records held by the provider, here G-mail, under United States v. Miller (1976). I agree that one should have an expectation of privacy in his or her e-mail accounts.

Permalink 05:05:52 am, by fourth, 85 words, 369 views   English (US)
Categories: General

Fourth Amendment news

PBTs for minors in MI

Police in Michigan were giving minors PBTs to arrest them for minor in possession. After two court challenges struck down two ordinances, Kalamazoo is changing its. See Kalamazoo Gazette: Minors may no longer be required to submit to breath tests.

Immigration enforcement by Maricopa Co. Sheriff

Maricopa County Sheriff Joe Arpaio insists on enforcing ICE laws at the local level, even though is authority comes from a 2005 manual that is no longer federal policy. Arizona Republic: County immigration authority muddled.

Permalink 01:20:45 am, by fourth, 557 words, 616 views   English (US)
Categories: General

D.C.Cir.: Drinking in public supported a stop

Officer saw defendant in what he “felt” was a high crime area, and defendant was carrying a styrofoam cup. Defendant was told to “come here” and he said he was “just drinking” and did not want to be hassled. The officer thus had reason to believe he was drinking in public, so the stop was valid. United States v. Jones, 584 F.3d 1083 (D.C. Cir. 2009):

It cannot be gainsaid that the Fourth Amendment protects, as Justice Brandeis' oft-cited observation points out, "the right to be let alone," Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), in a party atmosphere or otherwise. See Terry, 392 U.S. at 8-9. Merely walking away, even quickly as appellant did, upon the arrival of the uniformed police officer would not provide articulable suspicion of criminal wrongdoing by appellant. Cf. Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). The officer did not testify he thought appellant was fleeing from the police, only that his pace of movement, in contrast with others in the group, was what caused the officer to notice him. Merely holding a styrofoam cup, covered or uncovered, would not tip the balance, even when the same person was also holding a paper bag under his arm. Cf. United States v. Powell, 483 F.3d 836, 838 (D.C. Cir. 2007).

However, before appellant was seized by the police, he voluntarily stated to a uniformed officer who had just exited his car, "I ain't doing nothing. I'm just drinking." In response, as the officer approached he ordered appellant to "Come here," i.e., "to reverse his line of travel, [and] stop his exit from the scene," Appellant's Br. 14. The parties agree, as counsel for the government acknowledged during oral argument, that at this point appellant was seized for purposes of the Fourth Amendment. Terry, 392 U.S. at 16. Appellant's voluntary statement tipped the balance from providing a mere hunch to articulable suspicion of possible ongoing criminal wrongdoing. With appellant's statement the officer had a reasonable suspicion supported by articulable facts to make a Terry stop in order to investigate whether or not appellant was violating D.C. Code § 25-1001. Even though appellant may have intended to avoid any police interaction by asserting he was not violating the law, his statement was in the present tense about an activity that is criminal in certain circumstances. And it was late on Saturday night and people were gathered outside in a "party" atmosphere. The crowd was moving away from the police, and one of the partying persons had acknowledged while on the street and moving away quickly that he was drinking. That person also had the means to do so: a styrofoam cup in his hand into which to pour the contents of the brown bag under his arm.

It takes little imagination to suspect that there might be alcohol in the styrofoam cup or the brown paper bag that appellant was holding. But it also is possible that appellant was merely drinking fruit juice or some other non-alcoholic beverage, or that the cup was empty and the bag contained closed containers or non-alcoholic items. So the officer pursued the minimal investigative step by approaching appellant and ordering him to "Come here" in order to determine whether or not appellant was drinking or possessing an open container of alcohol, and if so to place him under arrest for violation of D.C. Code § 25-1001.

Permalink 12:37:28 am, by fourth, 792 words, 397 views   English (US)
Categories: General

E.D. Tenn.: Plain view applied to a recorder on a security camera which would have evidence of a shooting suspect

Consent to enter to look for the driver of a vehicle police believed was involved in a drive-by shooting led to a valid plain view of the recorder to a security camera trained on the vehicle because it would logically show the driver. United States v. Davis, 635 F. Supp. 2d 752 (E.D. Tenn. 2009):

Officers Willett and Rader undeniably had authority to be in the defendant's house generally. Since they had the occupants' consent to search for the defendant himself, based upon their experience and training that fugitives frequently hide in attics, not to mention evidence that someone had recently climbed into the attic, it was within the scope of their permission for these officers to enter the attic.

Once they were into the attic - a place they had a right to be, as just discussed - they immediately saw the digital recording machine. It was in plain view, sitting atop a pedestal adjacent to the entrance.

Lastly, Officer Willet immediately knew the significance of the recording machine in light of the surveillance cameras affixed to the house. More specifically, he knew the significance of the recording machine with relation to the crime he was then investigating, since the camera at the outside of the building was aimed directly at the Dodge Durango and would have recorded the movements of that vehicle. He knew by eyewitness accounts that that vehicle was the one used by defendant when he sprayed a hail of bullets into Chris Brotherton. A visual record of the arrival of that vehicle at 1600 Kingsport Highway would be additional evidence regarding the identity of the shooter. In other words, there was probable cause to believe that the recorder contained evidence of the crime for which Officer Willett was then actively pursuing defendant.

The "plain view" exception to the Fourth Amendment's requirement for a warrant applies, and the recorder was properly seized.

Defendant's traffic stop was with probable cause because the temporary paper tag looked like it could have been made on any printer and the paper was not of sufficient thickness to be valid. However, the paper tags later turned out to possibly be valid based on the paperwork in hand. Nevertheless, defendant seemed unusually nervous, and the officer's testimony was credited on that. United States v. Dejesus, 2009 U.S. Dist. LEXIS 98423 (M.D. Ala. October 22, 2009), USMJ R&R United States v. Dejesus, 2009 U.S. Dist. LEXIS 98529 (M.D. Ala. August 6, 2009)*:

The court is not without its concerns as to some of Trooper Martin's rationalizations for his continued suspicion and detention of Mr. DeJesus and his vehicle. While it is perhaps true that drug mules frequently consume energy drinks, so do many other, innocent, people, and the fact that Trooper Martin spotted a can of an energy drink (much less other "snacks") in Mr. DeJesus's reach is not a strong basis for suspicion. Even less intelligible are Trooper Martin's observations about Mr. DeJesus's possession of dry-cleaned clothing. Finally, the court is skeptical that it would be possible to literally observe a person's clothing moving as the result of a strong heartbeat, especially when, as acknowledged by Trooper Martin, Mr. DeJesus was wearing multiple layers of clothing, as was understandable on a February morning.

Nonetheless, these questionable observations were not the sole, or even the major, rationales behind the continued detention of Mr. DeJesus. Despite the concerns about the observations mentioned above, the court must give at least some credence to Trooper Martin's observation that Mr. DeJesus appeared nervous and more ill at ease than the average subject of a traffic stop. Likewise, Trooper Martin could have considered as part of the totality of the circumstances that Mr. DeJesus's stated route from Houston to Atlanta was known to be along a major drug-trafficking corridor. Further, Mr. DeJesus does not contest that, after he gave Trooper Martin his driver's license and other documents, Trooper Martin placed a call to the El Paso Intelligence Center, an information clearinghouse for drug-related investigations. Officials there informed Trooper Martin that Mr. DeJesus was a party to an open drug-trafficking investigation. Considering the totality of the circumstances, the court cannot say that Trooper Martin lacked reasonable suspicion to detain Mr. DeJesus for the length of time (between 15 and 20 minutes, on the basis of the DVD of the stop in the record) he did prior to obtaining Mr. DeJesus's consent to search. See United States v. Sokolow, 490 U.S. 1, 7 (1989); United States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988) (upholding a Terry stop of 50 minutes, while citing authority that a duration of up to 20 minutes was standard).

Defendant's stop was justified and a dog alert made the search with probable cause, so defendant's effort to apply Gant fails. United States v. Robinson, 2009 U.S. Dist. LEXIS 98432 (W.D. N.C. October 8, 2009).*

10/25/09

Permalink 09:23:10 am, by fourth, 521 words, 584 views   English (US)
Categories: General

WA: Search incident of car that defendant was standing next to was invalid; not a "recent occupant" and warrant was for FTA

Search incident of defendant's car in his driveway was invalid. He was merely standing next to it and looking inside when the police showed up and he fled inside. He was not even a "recent occupant." State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009):

¶25 Unfortunately, the scope of the search incident to arrest exception under our article I section 7 has experienced the same sort of progressive distortion that the United States Supreme Court recently recognized resulted in the unwarranted expansion of the search incident to arrest exception under the Fourth Amendment. Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710, 1718-19, 173 L. Ed. 2d 485 (2009). In Gant, the court observed that many lower courts have followed the broadest possible reading of the search incident to arrest exception as articulated in Belton, with the result that it has come to be regarded as “‘a police entitlement rather than as an exception justified by the twin rationales of Chimel.’” Id. at 1718 (quoting Thornton v. United States, 541 U.S. 615, 624, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (O'Connor, J., concurring in part)). Recognizing that the decision in Belton itself purported to follow Chimel, the Court in Gant issued a necessary course correction to assure that a search incident to the arrest of a recent vehicle occupant under the Fourth Amendment takes place “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Gant, 129 S. Ct. at 1719.

¶26 Article I section 7 requires no less. We have long recognized that our constitution's express regard for an individual's “private affairs” places strict limits on law enforcement activities in the area of search and seizure. See, e.g., O'Neill, 148 Wn.2d at 585-86. Today we hold that the search of a vehicle incident to the arrest of a recent occupant is unlawful absent a reasonable basis to believe that the arrestee poses a safety risk or that the vehicle contains evidence of the crime of arrest that could be concealed or destroyed, and that these concerns exist at the time of the search. While we believe this holding is consistent with the core rationale of our cases, we also recognize that we have heretofore upheld searches incident to arrest conducted after the arrestee has been secured and the attendant risk to officers in the field has passed. Today, we expressly disapprove of this expansive application of the narrow search incident to arrest exception.

¶27 Under a proper understanding of the search incident to arrest exception, the circumstances here simply do not involve a search incident to arrest. Patton was not a driver or recent occupant of the vehicle searched. There is no indication in the record that Patton even had keys to the vehicle. No connection existed between Patton, the reason for his arrest warrant, and the vehicle. Rather, Patton's warrant was for failure to appear in court for a past offense unrelated to the eventual drug charge that arose from the car search. Thus, there was no basis to believe evidence relating to Patton's arrest would have been found in the car. Nor did Patton's brief proximity to the car give rise to safety concerns upon his arrest.

Permalink 09:18:41 am, by fourth, 469 words, 566 views   English (US)
Categories: General

NM: Probation search valid for being in place where drug SW was executed

A probationer being at a place where a search warrant was being executed for drug sales was sufficient cause for a probation search. State v. Brusuelas, 2009 NMCA 111, 147 N.M. 233, 219 P.3d 1 (2009), Certiorari Denied, No. 31,701, September 2, 2009, Released for Publication October 20, 2009, cert. denied 224 P.3d 648 (N.M., 2009)*:

[*15] Applying the above principles to the circumstances of Defendant's case, we conclude that Paragraph 9 was consistent with our prior cases and constitutionally permissible. First, as discussed below, the presence of Defendant at a home being searched for evidence of drug sales met the standard of reasonable suspicion. Knights, 534 U.S. at 121; Baca, 2004 NMCA 49, P 41, 135 N.M. 490, 90 P.3d 509. Second, Defendant agreed to the condition of probation in Paragraph 9 that required her to submit to warrantless searches by any law enforcement officer. See Gallagher, 100 N.M. at 699, 675 P.2d at 431 (rejecting the defendant's argument that a choice between a consent-to-search provision and going to prison was not really a choice and thus consent was not voluntary). Third, Paragraph 9 appears to be reasonably related to Defendant's rehabilitation. The record indicates that the offense for which Defendant was on probation was child abuse (negligently caused, no great bodily harm). The warrantless search condition appears to indirectly further the goal of preventing another incident of child abuse. We observe that the judgment and sentence in which Paragraph 9 appears contains indications that alcohol was involved, as another condition of probation required Defendant to complete a two-year inpatient program and to avoid alcohol. Requiring Defendant to submit to searches would tend to advance her rehabilitation by ensuring that she did not possess alcohol. In addition, though the probationary strictures emphasize alcohol use, they are not limited to alcohol. The requirement under Paragraph 5 that Defendant "submit to substance abuse screening and any recommendations from that screening" are broader and could cover methamphetamine or other drug use. Fourth, because the agents were aware that Defendant was on probation at the time of the searches, in the circumstances--the agents were executing a search warrant at an alleged drug home--the search was reasonably related to "[t]he general purposes of probation, under federal or New Mexico law, [of] rehabilitation and deterrence for community safety." Baca, 2004 NMCA 49, P 36, 135 N.M. 490, 90 P.3d 509. Fifth, there is no indication that the agents knew beforehand that Defendant would be present at the home, and thus the search cannot be considered "a subterfuge for criminal investigation[]." Gardner, 95 N.M. at 175 (internal quotation marks and citation omitted). The presence of these factors distinguishes the circumstances of this search from those where reasonableness is questionable or absent, such as one where a police officer stops a probationer on the street with no indication that anything criminal is afoot. We conclude that Paragraph 9 was properly applied.

Defendant waived any search claim by his guilty plea. Bailey v. State, 19 So. 3d 828 (Miss. App. 2009).*

Permalink 08:38:56 am, by fourth, 267 words, 375 views   English (US)
Categories: General

MA: Ordering passenger out of a taxicab for being nervous during a traffic stop was unjustified

Defendant was a passenger in a taxicab stopped for a traffic offense, and he did not have a seatbelt on. The officer asked for his ID and he was getting nervous. He was ordered out of the cab. The order to exit the cab was without sufficient justification under the circumstances, which are analyzed in great detail. Commonwealth v. Brown, 75 Mass. App. Ct. 528, 915 N.E.2d 252 (2009):

The dangers that police officers face in automobile stops like the one that occurred here should not be taken lightly. Nonetheless, the exit order issued to the defendant in this case was based on a hunch and a desire to "get some information from each party, separate them and talk with them and get some information from them." "Although in hindsight [Trooper Cohen's] hunch proved to be correct, we view the reasonableness of the search and seizure from the vantage preceding the discovery of the [firearm], and on that basis the actions of the police here exceeded constitutional grounds." Commonwealth v. Hooker, 52 Mass. App. Ct. at 688. The order denying the motion to suppress is reversed.

Defendant left behind fake IDs and drugs in a hotel safe, and the hotel opened it. The police search that followed was unreasonable under the OR Constitution. State v. Stokke, 231 Ore. App. 387, 220 P.3d 59 (2009).*

Defendant's arrest for murder was with probable cause, so his statements are not supressed. State v. Johnson, 2009 Tenn. Crim. App. LEXIS 870 (October 15, 2009).*

Officer could reasonably believe that the woman who shared a bedroom with the defendant could consent to a search of the room. State v. Graves, 2009 Tenn. Crim. App. LEXIS 876 (October 13, 2009).*

Permalink 08:08:31 am, by fourth, 350 words, 663 views   English (US)
Categories: General

TN: Anonymous report of suspected DUI justifies a stop

An anonymous report of a weaving 18-wheeler is sufficient for inquiry. Here, the truck was already stopped when the officer parked in front of it. State v. Hanning, 296 S.W.3d 44 (Tenn. 2009):

We hold that in this case the anonymous tip reporting reckless driving indicated a sufficiently high risk of imminent injury or death to members of the public to warrant immediate intervention by law enforcement officials and justified the brief investigatory stop because the offense was reported at or near the time of its occurrence, and the report indicated that the caller was witnessing an ongoing offense; the report provided a detailed description of the truck, its direction of travel and location; and the investigating officer verified these details within moments of the dispatch reporting the tip.

Compare Virginia v. Harris posted here.

Analyzing in detail the law of probation and parole searches, which is well worth the read, the Tennessee Supreme Court reverses the court of criminal appeals, State v. Turner, 2008 Tenn. Crim. App. LEXIS 321 (April 29, 2008), posted here, and holds that a parole search requires no justification whatsoever. State v. Turner, 297 S.W.3d 155 (Tenn. 2009):

While we agree that these are appropriate factors to consider when reviewing whether a warrantless and suspicionless search of a parolee is unreasonable and therefore unconstitutional, we also recognize that a suspicionless search could be characterized as "arbitrary." See Black's Law Dictionary 112 (8th ed. 2004) ("1. Depending on individual discretion ...."). A search of this type is not necessarily unreasonable, however. Therefore, the totality of the circumstances surrounding a warrantless, suspicionless search of a parolee must be examined to determine whether the search is constitutionally unreasonable. For example, a pattern of repetitive searches while the parolee is at work or asleep would be unreasonable. Searches intended to cause the parolee some harm would be unreasonable. A search conducted out of personal animosity would be unreasonable. Indeed, there may be other situations where a warrantless, suspicionless search of a parolee is unreasonable. A suspicionless search of a parolee subject to a warrantless search condition, and which is conducted out of valid law enforcement concerns, is not unreasonable.

10/24/09

Permalink 04:44:04 pm, by fourth, 242 words, 602 views   English (US)
Categories: General

Today's Fourth Amendment news

ACLU of No. CA sues over DNA sampling on arrest in CA

The ACLU of Northern California has sued over the constitutionality of California's 2004 Proposition 69 mandating DNA sampling of certain arrestees which went into effect on January 1, 2009. See DNA Profiling: You May Be Next, by Patrick Kollman:

Proposition 69, passed in 2004, made California one of now 21 states that require DNA sampling for some arrestees. This voter-approved initiative mandated that this extend to all felony arrestees by Jan. 1, 2009—and the legal backlash has already begun.

Chicago Traffic Aide arrested for ticketing a cop car gets $1.553M verdict

In the Chicago Sun-Times: Traffic aide awarded more than $1 million in arrest for ticketing cop's car:

A city employee was awarded more than $1 million by a jury Friday in a wrongful arrest and conspiracy case stemming from a 2006 arrest in which she refused to rescind a parking ticket issued on a police officer's car.

On Friday a jury found in favor of Jacqueline Fegan and awarded her $1.553 million in damages, according to a release from the law office of Tobin, Petkus & Munoz. With court costs and legal fees, the decision could end up being more than $2 million.

She didn't even ticket the car--she refused to rescind a ticket issued by a subordinate. Sounds like a really pissed off jury. I can just see the closing argument about the abuse of power for arresting a city employee for contempt of cop for refusing to be bullied.

Permalink 11:24:48 am, by fourth, 344 words, 368 views   English (US)
Categories: General

MA Pandemic Response Bill

Massachusetts has a Pandemic Response Bill before the legislature that provides for forced quarantine of persons and places in case of a severe health risk and arrest of those not vaccinated where a health risk is shown. See Swine flu vaccine--get the shot or else? on Examiner.com.

The bill, called the Pandemic Response Bill, gives the state power to "forcefully quarantine people in the event of a pandemic", and threatens that "anyone who refuses to comply with the quarantine order could face jail time or a $1000 per day fine".

What does this translate to? It could mean that local law enforcement would have the right to go door to door, checking shot records and locking people up who are either infected or did not receive the vaccine. Of course this scenario seems a bit absurd, but perhaps so is the idea of imprisonment or stiff fines for people who are not vaccinated. Critics of the bill complain that this is not only a violation of basic constitutional rights of privacy (i.e. the Fourth Amendment which protects from unlawful search and seizures, or the Fifth Amendment which allows for due process), but may, as in the case of religions who prohibit the use of vaccines, pose unethical infringement on the basic freedom of religion this country was founded on. Furthermore, many are finding success with natural treatments such as nutrition, herbs and homeopathy, and prefer not to risk the side effects of a vaccine for a relatively benign disease.

The article, originating in Florida, mentions Fla. Stat. ch. 381 which provides for public health emergencies and quarantine of persons and premises. I imagine most states have similar statutes already in effect.

Under the T.L.O. special needs exception, it seems apparent to me that such entries would be reasonable at their inception. Whether they are reasonable in practice remains to be seen.

Whenever a conservative complains about the Fourth Amendment, I always remind them that the Nixon-Reagan-Bush Supreme Court is generally responsible for that they are complaining about.

Dilbert.com
Copyrighted. See Dilbert.com

Permalink 08:37:40 am, by fourth, 373 words, 1006 views   English (US)
Categories: General

D.Kan.: Smell of marijuana without finding any did not make officer unbelievable

The fact the officer said he smelled marijuana but did not find it does not make him incredible. His smell could still provide PC, based on his training. United States v. Hairston, 2009 U.S. Dist. LEXIS 98043 (D. Kan. October 15, 2009):

Defendant also contends that the officer's statement that he smelled raw marijuana is not credible given that no raw marijuana was ultimately found in the vehicle. But the Court finds Trooper Walker's testimony credible on this point. "An officer's detection of the smell of drugs in a vehicle is entitled to substantial weight in the probable cause analysis." Trooper Walker testified that he had been through two training classes and the Kansas Highway Patrol training academy, where he learned to detect the smell of raw marijuana. He also estimated that he smelled raw marijuana four to five times per month during traffic stops, in the course of his duties as a trooper. The fact that Trooper Walker did not ultimately find marijuana, and instead found cocaine, does not dissipate his credibility for purposes of the probable cause analysis.

Being in a high crime area and then flight on seeing officers was reasonable suspicion. United States v. Kelley, 2009 U.S. Dist. LEXIS 97753 (D. Del. October 16, 2009)*:

Considering this authority against the totality of the circumstances of record, the court finds that Smith's stop of defendant was supported by reasonable suspicion. The court credits Smith's testimony and concludes it was reasonable to infer that defendant was engaged in criminal activity based on his presence in a high-crime area and subsequent flight, as well as his nervous behavior after initially spotting the Officers. Defendant's nervous behavior continued as the Officers drew closer, e.g., reflected by defendant's repeated glances to the Officers, knocking on the row house door, failing to verbally respond to questions and looking to his right and left as if trying to flee from Smith. Considering these factors in tandem, the court finds the stop of defendant was supported by reasonable suspicion to suspect defendant was engaged in criminal activity.

Search of defendant's car after a dog alert when defendant had been arrested on an arrest warrant was with probable cause and was not just a search incident. State v. Hobbs, 2009 Ind. App. LEXIS 2201 (October 21, 2009).*

Permalink 08:25:10 am, by fourth, 316 words, 357 views   English (US)
Categories: General

E.D.La.: Defendant's permission to drive a rental car was not shown, so no standing

Defendant was in a rented car and unusually nervous. There was nothing in the proffered rental agreement found with the car that referred to defendant or how he came into possession of the car. If he was in possession of the car with permission of the renter, it could have been "easily provided." Therefore, he lacked standing. United States v. Daniels, 2008 U.S. Dist. LEXIS 110781 (E.D. La. August 19, 2008):

Although it is certainly plausible that the rental agreement in the car was an old agreement, there is no evidence before the Court that Robert Bell is the step-father of Daniels, that he gave Daniels permission to use the car, or that the rental agreement authorized others to drive the car. Based on the evidence before the Court, the Court finds that Daniels has failed to establish that he had a legitimate expectation of privacy with respect to a search of the vehicle. See also United States v. Muhammad, 58 F.3d 353 (5th Cir. 1995) (holding that defendant had not introduced any evidence that he had permission to drive rental car, and thus lacked standing to challenge search). Furthermore, such evidence could have easily been furnished if it existed. Accordingly, the Court finds that the defendant lacks standing to challenge the seizure of the firearm found in a search of the rental vehicle.

Questions to the defendant while the officer was waiting for a normal length response from dispatch did not make the stop unreasonable. United States v. Franklin, 2009 U.S. Dist. LEXIS 98110 (D. Kan. October 15, 2009).*

Defendant's admission during execution of a search warrant about child sexual abuse that he had probable child pornography on his computer made it reasonable for the officers to seize the computer even though it was not subject to the search warrant. A federal search warrant was then obtained for the computer. United States v. Pontefract, 2008 U.S. Dist. LEXIS 110754 (W.D. La. August 14, 2008).*

Permalink 08:00:25 am, by fourth, 300 words, 470 views   English (US)
Categories: General

NC: Handcuffs did not automatically make defendant's detention an arrest

Officer observed what he thought was a hand-to-hand drug sale, and he approached the defendant, the alleged buyer, to talk about it. Defendant said that he got a cigarette but he did not have it. The officer patted down the defendant and felt a bag in the pocket. He handcuffed then searched the defendant. The motion to suppress was improperly granted without consideration of "special circumstances" that would justify handcuffs without a seizure. Reversed and remanded for further consideration of that issue. State v. Carrouthers, 200 N.C. App. 415, 683 S.E.2d 781 (2009).*

Officers were in defendant's house with an arrest warrant for another. Defendant was seen in bed and told he could leave. He asked for pants, and the officer picked up a pair and found a baggy protruding from the pocket in plain view. That was not an unreasonable seizure. Cauls v. Commonwealth, 55 Va. App. 90, 683 S.E.2d 847 (2009).*

Defendant's guilty plea waived any Fourth Amendment issues. McAplin v. United States, 2009 U.S. Dist. LEXIS 97077 (W.D. N.C. August 15, 2009).*

Defendant's ex-wife was a sufficient source of hearsay for a search warrant because of corroboration. Her information, although 11 months old, did not make the warrant stale because there was other information from other sources more timely. United States v. Modena, 2009 U.S. Dist. LEXIS 97920 (W.D. Mich. October 21, 2009)*:

"It is enough, for purposes of assessing probable cause, that 'corroboration through other sources of information reduced the chances of a reckless or prevaricating tale,' thus providing 'a substantial basis for crediting the hearsay.'" Gates, 462 U.S. at 244-45 (quoting Jones v. U.S., 362 U.S. 257, 269, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960)). The information defendant's ex-wife contributed in paragraph 13 was corroborated by Miller, which reduced the chances of a "reckless or prevaricating tale" and provided a substantial basis for crediting the hearsay.

10/23/09

Permalink 01:42:32 am, by fourth, 647 words, 576 views   English (US)
Categories: General

W.D.N.C.: Officer's actions inconsistent with need for frisk

Defense counsel successfully argues officer's general lack of credibility before the stop coupled with story during stop made the stop unreasonable. Need for a frisk was belied by the officer's actions during the stop. United States v. Eanes, 2008 U.S. Dist. LEXIS 110701 (W.D. N.C. September 5, 2008):

Having carefully considered the testimony and other evidence, as well as the vigorous and able arguments of counsel for the Government and the Defendant in their pleadings and during three different hearings, the undersigned concludes that Officer Wheaton's testimony is simply not credible. In other words, the undersigned concludes that the Government has failed to establish, through presentation of credible evidence, that the traffic stop in question was properly based on reasonable and articulable suspicion of unlawful conduct or, had the initial stop been proper based on a seatbelt violation or otherwise, that there was reasonable suspicion to justify detention beyond the scope of a routine traffic stop.

As noted in the preceding section, Officer Wheaton's five-and-a-half year career with the Charlotte-Mecklenburg Police Department has brought his credibility into question long before he stopped the vehicle in which the Defendant was riding on June 2, 2006. Before he became a sworn officer he was caught cheating and had to re-take 20 tests administered by the Police Academy as a result. He has been cited for violating CMPD's vehicle "pursuit policy." And, perhaps most seriously, at least two of his cases have been dismissed by state courts for failure to preserve evidence: specifically, MVR tapes, the precise evidence he has again failed to preserve in this case.

As defense counsel ably argues in his "Post-Hearing Memorandum of Law in Support …," the undersigned finds that the testimony of Officer Wheaton regarding the events leading up to and following the vehicle stop lacks credibility on its face. For example, Officer Wheaton's testimony that he observed the Defendant make a "stuffing motion" before the vehicle stop, which he alleges he strongly believed to be the Defendant placing a gun under the seat, is inconsistent with his allowing the Defendant to remain in the car after the stop, on that very seat, while he questioned the driver outside the car. It is also entirely inconsistent with his failure to frisk the Defendant -- which Officer Wheaton now acknowledges was "an officer safety mistake" -- once he finally removed him from the vehicle. Further inconsistencies in Officer Wheaton's conduct and sworn testimony are the search of other parts of the car before looking under the passenger seat where he now claims to have been virtually certain a gun was hidden; Officer Wheaton's failure to preserve or test the very evidence he claimed as "an additional legal basis" for the vehicle search (the purported "marijuana stem"); and Officer Wheaton's failure to call for backup once he realized the passenger had a prior armed robbery arrest and he allegedly deemed the presence of a firearm under his seat a "no-brainer."

Rather than observing what he claims he observed, the undersigned finds it at least equally likely that, as Officer Wheaton vaguely put it, on the night in question he was simply "looking for people [or] vehicles that stand out." Observing the vehicle in question, perhaps because the passenger or driver looked at him, it somehow "stood out" in Officer Wheaton's mind and he decided to follow it. Although Officer Wheaton claims to have noticed the passenger was not wearing his seat belt before the stop, due in part to the many glaring inconsistencies in Officer Wheaton's testimony, the undersigned finds it just as likely that Officer Wheaton first noticed the Defendant was not wearing his seat belt after the stop. Of course, Officer Wheaton's failure to preserve the MVR tape means, inter alia, that what may have been the best evidence of whether he observed the Defendant not wearing a seatbelt is now not available to the Court or the Defendant for review.

Permalink 01:30:18 am, by fourth, 530 words, 479 views   English (US)
Categories: General

OH2: Gant applies to suppression hearing held before it was decided

Gant applied to a suppression hearing held before it was decided under the general rules of Fourth Amendment retroactivity. Here, there were no findings of fact, but the record is clear, and the search was unreasonable. State v. Gilbert, 2009 Ohio 5528, 184 Ohio App. 3d 642 (2d Dist. 2009):

[*P33] In the case before us, the search is not justified under either branch of the standard established in Gant. When the search occurred, multiple police officers were at the scene, and all occupants of the car had been removed and were under police control. Thus, at the time of the search, no occupant had access to, or was within reaching distance of, the vehicle's passenger compartment. There is also no indication that the search was initiated to discover evidence relevant either to the crime that had been committed by the driver, or the crime for which there was an outstanding warrant to arrest the front-seat passenger. The driver of the car had been arrested for driving under suspension, and the car would have contained no evidence relevant to that crime. A passenger in the front seat had also been arrested on an outstanding warrant for robbery, but there is no indication that the officers were searching for evidence relevant to that crime, or that evidence was likely to be present relevant to that crime, which would have occurred some time in the past, since a warrant had been issued. Rather than resulting from a quest for relevant evidence of the crime that caused the stop, the search was the type of search incident to an arrest that officers have routinely conducted under the authority of Belton. As the United States Supreme Court stressed in Gant:

[*P34] "It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment-the concern about giving police officers unbridled discretion to rummage at will among a person's private effects." Gant, 129 S.Ct. 1710, 1720, 173 L. Ed. 2d 485.

[*P35] Accordingly, under the new standard established in Gant, the police were not justified in conducting a warrantless search of the automobile in which Gilbert was a passenger. Since the search was illegal, any evidence discovered thereafter as a result of the search, including the cocaine and marijuana, and Gilbert's statements, should have been suppressed as the "'fruit of the poisonous tree.'" Wong Sun v. U.S. (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441.

Having tags to the wrong vehicle is reasonable suspicion for a stop, and here it led to a plain view. State v. King, 2009 Ohio 5530, 2009 Ohio App. LEXIS 4658 (2d Dist. October 16, 2009).*

Officers acted reasonably in entering an apartment that they were told by the landlord had been vacated. They seized a bullet. State v. Green, 2009 Ohio 5529, 2009 Ohio App. LEXIS 4655 (2d Dist. October 16, 2009).*

Permalink 01:20:30 am, by fourth, 25 words, 638 views   English (US)
Categories: General

NLJ on Virginia v. Harris

On the cert denial in Virginia v. Harris, noted here, the NLJ had this interesting article today: Who inspired Roberts' dissent in drunk driving case?

10/22/09

Permalink 08:23:11 am, by fourth, 253 words, 368 views   English (US)
Categories: General

Cal.2: Exclusionary rule not applied to employee disciplinary hearing

"The courts have seldom applied the exclusionary rule in administrative cases, even ones in which severe penalties are imposed based on the admission of illegally seized evidence. In administrative disciplinary proceedings, a balancing test must be applied, and consideration must be given to the social consequences of applying the exclusionary rule and to the effect thereof on the integrity of the judicial process. The court conducted a balancing test and determined that there were insufficient grounds for extending the exclusionary rule to the disciplinary proceeding because of the serious dangers arising from the employee's drug use on the job and possession of a readily accessible firearm." Department of Transportation v. State Personnel Bd., 178 Cal. App. 4th 568, 100 Cal. Rptr. 3d 516 (2d Dist. 2009).

The stop was reasonable, and defendant consented, despite the allegedly coercive circumstances. Many cases have involved more coercive situations than this. Even so, there was PC for the search. United States v. Rodriguez-Alejandro, 664 F. Supp. 2d 1320 (N.D. Ga. 2009).*

"We consider whether the Commonwealth, in a criminal case, may seek the production of records from a third party in advance of trial or an evidentiary hearing by issuing a subpoena duces tecum directly to the party under G. L. c. 277, § 68, or whether it must first obtain judicial approval, pursuant to Mass. R. Crim. P. 17(a)(2), 378 Mass. 885 (1979), as construed by Commonwealth v. Lampron, 441 Mass. 265, 268-271 (2004) (Lampron). We conclude that it must first obtain judicial approval." There was no Fourth Amendment claim presented [not that it would work]. Commonwealth v. Odgren, 455 Mass. 171, 915 N.E.2d 215 (2009).

Permalink 07:54:46 am, by fourth, 388 words, 505 views   English (US)
Categories: General

D.Minn.: Nexus does not need to involve the defendant; it is directed at the place to be searched

Nexus was shown by reason to believe child pornography would be found on the premises, and it is not required that it be shown that the defendant was the possessor. United States v. Kahmann, 2007 U.S. Dist. LEXIS 98824 (D. Minn. January 25, 2007):

Accordingly, Defendant's offender-nexus arguments--that is, arguments that the warrant and supporting affidavit did not identify him as the owner of the computer, as a resident of the premises, or as a probable suspect for child pornography offenses--are essentially irrelevant. See United States v. Hay, 231 F.3d 630, 635 (9th Cir. 2000) (rejecting as "misfocus[ed]" the argument that affidavit failed to indicate that defendant "was a child molester, pedophile, or collector of child pornography" and failed to establish nexus between the crime and defendant's apartment). This is not a case (perhaps the more frequent case) where the government first identifies a person as being involved in child pornography and then seeks a warrant to search that person's property for such materials. Rather, here the government first obtained probable cause to believe that child pornography was present on particular premises.n2

n2 In other words, this case does not present the more frequently-encountered nexus argument--that it was not clear that the evidence would be found at the place to be searched. "[T]here must be evidence of a nexus between the contraband and the place to be searched before a warrant may properly issue." United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000). But the requisite nexus does not require certainty. Rather, probable cause for a search warrant "means 'a fair probability that contraband or evidence of a crime will be found in a particular place' given the circumstances set forth in the affidavit.'" Id. at 549 (internal citation omitted) (emphasis added). Here, that nexus was provided by a witness who personally observed the materials on the premises to be searched.

In sum, the warrant, as based on the supporting affidavit, was directed towards particular items of property constituting or associated with child pornography that were located on the premises specified in the warrant. This satisfies the two requirements for a search warrant: "'that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched.'" Zurcher, 436 U.S. at 557 n.6 (internal quotation omitted).

10/21/09

Permalink 05:04:30 am, by fourth, 492 words, 386 views   English (US)
Categories: General

CA9: Federal forfeiture of cash from a medical marijuana cooperative failed where underlying state search failed

Seizure of cash from a Los Angeles medical marijuana cooperative was without probable cause under state law, therefore the attempted forfeiture by the federal government, which received the cash from the local police, failed. United States v. $186,416.00 in United States Currency, 2009 U.S. App. LEXIS 22833 (9th Cir. October 20, 2009), opinion below United States v. $186,416.00 in U.S. Currency, 527 F. Supp. 2d 1103 (C.D. Cal. 2007):

In its summary judgment order of August 2007, the District Court reconsidered and instead described the warrant as invalid not for a constitutional infirmity but for its failure to meet the procedural requirements provided in Rule 41 for obtaining a federal search warrant. $186,416.00 in U.S. Currency, 527 F. Supp. 2d at 1138. The court reasoned that the LAPD had probable cause to believe that UMCC was operating in violation of federal narcotics law, even though it lacked probable cause with regards to state law. Id. As such, the LAPD's only error, according to the District Court, was in failing to comply with the procedural requirements of Rule 41, such as having a federal law enforcement officer request the warrant and obtaining approval from a magistrate judge unless none was reasonably available. Id.; see also Fed. R. Crim. P. 41(b).

We cannot approve this analysis. Rule 41 is inapplicable to "searches conducted by state officers with state warrants issued by state judges, with minimal or no federal involvement," even if federal prosecution results. United States v. Piver, 899 F.2d 881, 882 (9th Cir. 1990). The present case fits this description. Only a "federal law enforcement officer or an attorney for the government" can request a search warrant under Rule 41, and no such individual was involved in requesting the warrant at issue here. Fed. R. Crim. P. 41(b).

While there may have been probable cause to search UMCC for a violation of federal law, that was not what the LAPD was doing. Nothing in the documents prepared at the time the warrant was obtained from the state court or in the procedure followed to obtain that warrant supports the proposition that the LAPD thought it was pursuing a violation of federal law. Instead, it sought a warrant from a state court judge, though, as the District Court found, it lacked probable cause for a state law violation and failed to inform the state court judge of relevant facts that supported the conclusion that UMCC was not in violation of state law. The LAPD, a city agency, never initiated the process of seeking a federal search warrant from a federal magistrate or indicated that it was pursuing a violation of federal law.

Accordingly, the search was not illegal simply because it failed to comply with Rule 41 but because it violated UMCC's Fourth Amendment right against unreasonable searches and seizures, in light of the absence of probable cause under state law. See Piver, 899 F.2d at 882 (holding that state warrants must adhere to federal constitutional standards).

Also on Monday, DoJ announced a new policy not prosecute medical marijuana suppliers and users.

Permalink 05:00:06 am, by fourth, 131 words, 487 views   English (US)
Categories: General

CA10: Fourth Amendment violation here did not invoke Heck

Where "the evidence discovered independent of the alleged due process and Fourth Amendment violations would be sufficient to sustain [the conviction], success on these claims in his § 1983 suit would not necessarily invalidate that conviction. We therefore hold that Heck does not bar [his] due process or Fourth Amendment claims." A blanket Fourth Amendment exception to Heck is not [yet] appropriate. Pearson v. Weischedel, 349 Fed. Appx. 343 (10th Cir. 2009) (unpublished).*

The search warrant for defendant’s DNA was issued with probable cause to believe he might be a perpetrator of the crime under investigation. When the police arrived at his house, they could smell marijuana. After the DNA sample had been taken, the officers went for a search warrant for the premises. United States v. Spain, 2009 U.S. Dist. LEXIS 96513 (D. Neb. October 16, 2009).*

10/20/09

Permalink 11:21:50 am, by fourth, 319 words, 721 views   English (US)
Categories: General

SCOTUS: Dissent from denial of cert, anonymous tip of DUI

In Virginia v. Harris, 175 L. Ed. 2d 322 (2009), SCOTUS denied cert with two justices dissenting on whether police need to independently corroborate an informant's call that a driver appears to be under the influence. The opinion below is posted here. The dissent also shows the conflict in the cases, in the part not quoted:

By a 4-to-3 vote, the Virginia Supreme Court below adopted a rule that will undermine such efforts to get drunk drivers off the road. The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road—by which time it may be too late.

Here, a Richmond police officer pulled Joseph Harris over after receiving an anonymous tip that Harris was driving while intoxicated. The tip described Harris, his car, and the direction he was traveling in considerable detail. The officer did not personally witness Harris violate any traffic laws. When Harris was pulled over, however, he reeked of alcohol, his speech was slurred, he almost fell over in attempting to exit his car, and he failed the sobriety tests the officer administered on the scene.

Harris was convicted of driving while intoxicated, but the Virginia Supreme Court overturned the conviction. It concluded that because the officer had failed to independently verify that Harris was driving dangerously, the stop violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. 276 Va. 689, 696–698, 668 S. E. 2d 141, 146–147 (2008); see Pet. for Cert. 4 (citing record). I am not sure that the Fourth Amendment requires such independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving. This is an important question that is not answered by our past decisions, and that has deeply divided federal and state courts. The Court should grant the petition for certiorari to answer the question and resolve the conflict. (emphasis in original)

Permalink 06:41:48 am, by fourth, 360 words, 372 views   English (US)
Categories: General

KY: On seeing the police, suspicious conduct + flight = RS

Flight after suspicious conduct is reasonable suspicion. Defendant saw police and went onto a porch and fiddled with a door and then fled when they were looking at him. Akins v. Commonwealth, 2009 Ky. App. LEXIS 199 (October 16, 2009):

Akins contends that he was not subject to an ordinary investigatory stop on Valley Creek Road based on his behavior as observed by the police. We do not agree. His conduct on the porch itself under the circumstances furnished an articulable, reasonable suspicion that criminal activity might be afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed2d 889 (1968). His reactions to the police--taking immediate, evasive flight upon seeing Kelly's vehicle approach and then leaping from the porch as the two vehicles approached--also furnished reasonable, articulable suspicion for the initial stop. The United States Supreme Court has held that the fact of flight at the mere sight of the police constitutes the reasonable suspicion required to justify a Terry stop:

Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight--wherever it occurs--is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.

Illinois v. Wardlow, 528 U.S. 119, 124, (citations omitted) 120 S.Ct. 673, 676, 145 L. Ed. 2d 570 (2000).

Note: the court left out from the quote the sentence before: "In this case, moreover, it was not merely respondent's presence in an area of heavy narcotics trafficking that aroused the officers' suspicion but his unprovoked flight upon noticing the police." That should have been included.

Defendant was the passenger in a car stopped based on a telephone call from Walgreens about overpurchase of pseudophedrine, and the pseudo was on the seat in plain view. He had standing to challenge the stop, and he loses. As for the search of the car, he has no standing to challenge its search under Rakas. Lindsey v. Commonwealth, 306 S.W.3d 522 (Ky. App. 2009).*

Probable cause for search of defendant's truck for cash was based on wiretaps and observations that were consistent with the wiretaps. The truck was mobile, so the automobile exception applied. United States v. Longoria, 2009 U.S. Dist. LEXIS 96333 (N.D. Ga. August 13, 2009).*

10/19/09

Permalink 03:39:01 pm, by fourth, 92 words, 461 views   English (US)
Categories: General

New link to state court opinions

On the sidebar is a Hall's links to state opinions. This has all the links to state court opinions complete as of ten days ago.

For three years I have been complaining to LII at Cornell about a dozen broken links in their state court opinions page, which they have completely ignored. But, they e-mail me for contributions. One year I contributed with a note about the broken links. Yet, they do nothing to repair broken links. I was keeping my own list. Finally, I made the list into my own page.

Permalink 08:35:14 am, by fourth, 354 words, 753 views   English (US)
Categories: General

TN: Arbitrary parole searches would be invalid, but this one wasn't

Tennessee discusses parole and probation searches at length and concludes this one is valid. It also recognizes that arbitrary searches would not be valid. State v. Turner, 297 S.W.3d 155 (Tenn. 2009):

While we agree that these are appropriate factors to consider when reviewing whether a warrantless and suspicionless search of a parolee is unreasonable and therefore unconstitutional, we also recognize that a suspicionless search could be characterized as "arbitrary." See Black's Law Dictionary 112 (8th ed. 2004) ("1. Depending on individual discretion ...."). A search of this type is not necessarily unreasonable, however. Therefore, the totality of the circumstances surrounding a warrantless, suspicionless search of a parolee must be examined to determine whether the search is constitutionally unreasonable. For example, a pattern of repetitive searches while the parolee is at work or asleep would be unreasonable. Searches intended to cause the parolee some harm would be unreasonable. A search conducted out of personal animosity would be unreasonable. Indeed, there may be other situations where a warrantless, suspicionless search of a parolee is unreasonable. A suspicionless search of a parolee subject to a warrantless search condition, and which is conducted out of valid law enforcement concerns, is not unreasonable.

A NY parole officer could look in defendant’s room when he showed up for a parole search and defendant was disheveled and kind of out of it and a lamp was topped over on the floor which created a fire hazard. United States v. Santalucia, 666 F. Supp. 2d 268 (N.D. N.Y. 2009).*

Defense counsel withdrew defendant's motion to suppress. On this record, the court could not consider an IAC claim. Defendant can do that in a 2255. United States v. Cooper, 346 Fed. Appx. 962 (4th Cir. 2009) (unpublished).*

In an administrative DL suspension for DUI in Idaho the driver has the burden of showing that the stop was illegal. Wheeler v. Idaho Transp. Dep't, 148 Idaho 378, 223 P.3d 761 (App. 2009), Released for Publication January 28, 2010, Review denied by Wheeler v. Idaho Transp. Dep't, 2010 Ida. LEXIS 29 (Idaho, Jan. 26, 2010). (Note: The Fourth Amendment requires the government bear the burden of proof and going forward in a warrantless stop and search. How could they get it so wrong?)

Permalink 08:19:43 am, by fourth, 443 words, 649 views   English (US)
Categories: General

CA8: Interstate trucking heavily regulated industry under MO law

Missouri truck cops can stop and inspect trucks, with their routine governed by NASIP procedures. n.2:

The Commercial Vehicle Safety Alliance authorizes officers such as Officer Wilkins to enforce federal motor vehicle laws by checking licenses, logbooks, insurance, etc. See Commercial Vehicle Safety Alliance, North American Standard Inspection Levels [hereinafter NAISP Levels], http://www.cvsa.org/programs/nas_levels.aspx (last visited Oct. 5, 2009); see also 49 C.F.R. § 350.105.

United States v. Parker, 2009 U.S. App. LEXIS 22749 (8th Cir. October 16, 2009):

The Supreme Court has held that "'closely regulated' industr[ies] ha[ve] a reduced expectation of privacy." New York v. Burger, 482 U.S. 691, 702 (1987). Therefore, closely regulated industries may be subject to warrantless searches of property, if "the rules governing the search offer an adequate substitute for the fourth amendment warrant requirement." United States v. Knight, 306 F.3d 534, 535 (8th Cir. 2002). To qualify as a valid substitute, the rules governing the search must first provide adequate notice by being "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." Burger, 482 U.S. at 703 (quotation omitted). Second, the rules must limit the discretion of inspecting officers "in time, place, and scope." Id. (quotation omitted). This court has held that commercial trucking is considered one of these "closely regulated" areas. See Knight, 306 F.3d at 535. Additionally, we have recognized that the NASIP procedures provide both the adequate notice and limited discretion required under the Burger analysis. Id.

Missouri law requires all commercial vehicles, except those licensed for less than 1800 pounds, to stop at weigh stations. Mo. Rev. St. § 304.235. Additionally, Missouri allows the State Highway Patrol to adopt NASIP procedures for taking a vehicle out of service. Mo. Rev. St. § 307.400(3) ("Criteria used for placing vehicles and drivers out of service are the North American Uniform Out-of-Service Criteria adopted by the Commercial Vehicle Safety Alliance ...."). Therefore, once a commercial vehicle stops at a weigh station, Missouri State Highway Patrol officers may conduct inspections and implement procedures authorized by the NASIP.

It is undisputed that Officer Wilkins and Officer Lee followed the authorized NASIP procedures in inspecting the truck, trailer, and cargo, and in reaching the decision to take the truck out of service for ten hours. Moreover, although Parker was not allowed to drive a commercial vehicle when his was taken out of service, Parker was free to leave by any other means. Therefore, Parker was not unlawfully detained when he verbally consented to the search of all the vehicles and gave the keys to Officer Mitchell. Because he was not detained when he consented, the search was pursuant to voluntary consent.

Permalink 07:38:46 am, by fourth, 491 words, 577 views   English (US)
Categories: General

KS: Seizure of a cigarette pack under Terry did not permit its search

Search of a cigarette packet seized for officer safety from defendant's purse was unreasonable because the threat (also admittedly a close call) was neutralized by seizure. State v. Johnson, 2009 Kan. App. LEXIS 849 (October 9, 2009):

Here, by the time of the search and seizure, this defendant had offered Officer Tucker a plausible innocent explanation for her presence at the apartment, which was verified by the landlord. Tucker's concerns were raised when the defendant retrieved the cigarette package after Tucker told the defendant not to reach in her purse. Tucker cited his previous experience with individuals who would hide razors in cigarette packages. However, such individuals were involved in drugs and prostitution, neither of which Tucker connected with this defendant. This leads us to the conclusion Tucker's search of the cigarette package was an impermissible warrantless search.

Our conclusion is supported by the United States Supreme Court's recent decision in Arizona v. Gant, 556 U.S. , 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009). Although Gant involved the vehicle-search-incident-to-arrest exception to the warrant requirement as formulated in New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981), this exception is partly justified by the same officer safety rationale that underlies the Terry exception at issue here. See Gant, 173 L. Ed. 2d at 492-93. Concluding the vehicle-search-incident-to-arrest exception had been improperly broadened to allow a vehicle search incident to any arrest, the Supreme Court narrowed the exception by holding such warrantless searches are proper "only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." 173 L. Ed. 2d at 501. Our Supreme Court recently relied on Gant in striking down part of Kansas' warrantless-search-incident-to arrest statute, K.S.A. 22-2501(c). See State v. Henning, 289 Kan. 136, , 209 P.3d 711 (2009).

Because Colorado law on probation searches is "sparse," the court discusses at length SCOTUS probation search cases and concludes that this search was valid. Police has a warrant for defendant for a gang related murder, and called his probation officer. The probation officer called defendant and went to his house and conducted a probation search for a weapon, finding gang colors and a .40 cal. bullet. The search was valid. People v. Samuels, 228 P.3d 229 (Colo. App. 2009).*

Defendant's flight from detention after being confronted in an alley was not a seizure. United States v. Bandy, 2009 U.S. Dist. LEXIS 95466 (N.D. Ind. October 13, 2009).*

Plaintiffs' child suffered from cerebral palsy, and she had a paraprofessional who helped her use the bathroom at school. A bruise was seen, and the school was a mandatory reporter. There was no Fourth Amendment violation from seeing the bruise. S. L. v. Seymour R-2 Sch. Dist., 2009 U.S. Dist. LEXIS 95731 (W.D. Mo. October 14, 2009).*

Gant did not abrogate the vehicle exception. This search was valid under the vehicle exception because there was probable cause. United States v. Allen, 2009 U.S. Dist. LEXIS 95383 (E.D. Tenn. October 13, 2009).*

10/18/09

Permalink 09:44:35 am, by fourth, 783 words, 876 views   English (US)
Categories: General

OH4: CODIS hit is "clear-cut" PC for a SW for DNA confirmation

There clearly was PC for a search warrant for defendant's DNA after DNA from a burglary tool resulted in a CODIS hit. The search warrant was for a confirmation. State v. Norman, 2009 Ohio 5458, 2009 Ohio App. LEXIS 4595 (4th Dist. October 8, 2009)*:

[*P29] Here, we find that Detective Rourke's affidavit supports a finding of probable cause. In relevant part, the affidavit states the following: "The tire tool and mask were collected as evidence and submitted to OHIO BCI for analysis. A DNA profile was established from the tire tool and entered into CODIS, a DNA database. On 11/26/07 Ohio BCI notified detective that a hit was received on the profile to Brian M. Norman ***, who is currently incarcerated at Chillicothe Correctional Institute. Detective is seeking to personally obtain oral swabs from Brian Norman to confirm the DNA match."

[*P30] This is not one of the difficult cases contemplated by Ventresca. On the contrary, it would be hard to find a more clear-cut case of an affidavit supporting probable case. In his affidavit, Detective Rourke stated that a division of the Ohio Attorney General's Office (Ohio BCI) notified him that Norman's DNA profile matched the DNA profile linked to the robbery. Therefore, the affidavit clearly establishes circumstances that warrant suspicion. And Norman's highly speculative arguments about BCI and Detective Rourke fall far short of demonstrating any error, let alone plain error, in the trial court's denial of Norman's motion to suppress.

The officer stopped defendant's car for suspicion of DUI based on a dispatch report where the caller was also following defendant's car describing what it looked like and what was going on. State v. Greer, 2009 Ohio 5351, 2009 Ohio App. LEXIS 4507 (8th Dist. October 8, 2009):

[*P22] In this case, the dispatch tapes were admitted and established that the informant was a female who was observing defendant's erratic driving firsthand during the course of the 911 call. The recordings also reflect that the informant observed the police following the subject vehicle. The informant was able to identify the type and color of defendant's vehicle and his course of travel. Officer Kroczak confirmed the stop occurred moments after the informant's call. It also appeared to Officer Kroczak that defendant was attempting to evade her by driving through a parking lot for no apparent purpose. In addition, upon approaching the vehicle, Officer Korczak noticed defendant's "eyes were very bloodshot, red, his speech and his motions were slow *** The odor of the alcohol was strong." His speech was slurred and his eyes were "glossy looking." Immediacy and personal observation led to further credibility and greater reliability. Maumee, 87 Ohio St.3d at 302.

Defendant’s stop was effectively over, and he consented to further questions. United States v. Velazquez, 2009 U.S. App. LEXIS 22743 (10th Cir. October 16, 2009) (unpublished)*:

We agree with the district court that we are bound by our precedent to conclude that Mr. Velazquez's discussion with Trooper Ranieri, after receiving his warning, was consensual. The district court found that Trooper Ranieri returned Mr. Velazquez's documentation, told him to take care, walked briefly away from the vehicle, and then stepped forward again before asking Mr. Velazquez if he had anything illegal in the car. Although Trooper Ranieri did not specifically inform Mr. Velazquez that he was free to leave, he did say, "You guys take care. Thanks for your time" and took a few steps away from the car. We cannot say that any of these factual findings was clearly erroneous, and we have repeatedly found facts along these lines sufficient to suggest an end to the traffic stop detention and sufficient to signal that subsequent conversation with the officer is consensual. See, e.g., United States v. Ledesma, 447 F.3d 1307, 1315 (10th Cir. 2006) ("Phrases like 'thank you' and 'have a safe one' signal the end of an encounter, and afford a defendant an opportunity to depart. Although [the officer] did not explicitly inform [the defendant] and her passenger that they were free to leave, [his] words of farewell suggested that any subsequent discussion was consensual."); United States v. Wallace, 429 F.3d 969, 975 (10th Cir. 2005) (initial detention transformed into a consensual encounter when trooper returned driver's paperwork, issued a citation, and said, "That's all I've got"); Anderson, 114 F.3d at 1064 (detention became consensual when trooper handed driver a warning citation and returned his papers, even though trooper did not tell driver he was free to go); United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997) (detention ended and encounter became consensual when officer returned documentation, even though officer never told driver he was free to go); United States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990) (because initial detention ended when officer returned license and registration, subsequent questioning was consensual, even if officer did not tell driver he was free to go).

Permalink 09:03:29 am, by fourth, 674 words, 506 views   English (US)
Categories: General

E.D.Va.: Unattended 4 year old child and no response from inside justified entry

Officer's entry into the house was to find the parents of an unsupervised four year old, so the community caretaking function applied. United States v. Taylor, 2009 U.S. Dist. LEXIS 95555 (E.D. Va. October 14, 2009):

Applying the community caretaking exception, the Court finds that the officer's entry into the home was unrelated to the detection, investigation, or attempt to acquire evidence of a crime. As required by the Fourth Circuit in Gwinn, nothing in the record suggests that Officer Ratliff's reason for the entry was pretextual or that he acted in bad faith. Applying the Sixth Circuit's Rohrig factors, it is clear that Officer Ratliff entered the home "to vindicate a compelling government interest" -- that of caring for lost children and returning them to their parent or guardian in a safe environment -- and that this is what motivated the officer, rather than a criminal investigation. "Life-or-death" circumstances did not exist, but they are not required. An officer is not expected to leave his common sense at home. He was looking for the child's parent or guardian, and the logical place to begin was at her home, especially given her age and the fact that she was found wandering outside not too far from her home. The Sixth Circuit's analysis balances the governmental interest being served -- caring for and returning lost children to their parent or guardian in a safe environment -- against the individual's interest in remaining free from governmental intrusions, and notes that the individual's conduct that has called the governmental interest into question can be considered -- in this case, the defendant's apparent failure to properly care for and supervise the four-year-old child is what called the governmental interest into question in this case. Further, when Ratliff entered the house he was not engaged in the "enterprise of ferreting out crime."

Applying the Ninth Circuit's test to our factual scenario, Officer Ratliff had reasonable grounds to believe that there was an immediate need for his assistance to protect the safety of a four-year-old child found wandering alone next to a busy city street, his entry into the house was not motivated by an intent to arrest or seize evidence but only to locate an adult who was responsible for the child, and the child led him to her home, creating a reasonable basis for him to associate the emergency of a lost child with the house at 2117 Bainbridge Street. If a responsible adult had responded to Ratliff's initial calls of "hello" and had provided identification demonstrating that he or she was the child's parent or guardian, that would have been the end of it. Indeed, when Ms. Lee arrived and Ratliff was able to determine that she was the child's mother, he left the child with her. Ratliff's entry into the house was limited to calling "hello" and trying to locate an adult responsible for the child. Thus, the Court finds that under the community caretaking exception, Officer Ratliff's entry into the house was reasonable and there was no violation of the Fourth Amendment.

Consent to search a motel room under a knock-and-talk permitted lifting a jacket which was unusually heavy and where a gun and cocaine were found. United States v. Adams, 2009 U.S. App. LEXIS 22485, 2009 FED App. 0363P (6th Cir. October 14, 2009).*

The totality of circumstances here gave reasonable suspicion for continuing the detention to bring in a drug dog, which alerted. United States v. Woods, 351 Fed. Appx. 259 (10th Cir. 2009).*

Inconsistencies between the officer's reports and his hearing testimony were not so serious as to make a Franks violation. United States v. Bush, 2009 U.S. Dist. LEXIS 95440 (N.D. N.Y. October 14, 2009).*

The officer had reasonable suspicion, including the faint odor of marijuana when he asked for consent. The consent was not restricted. Defendant's nervousness and it being in a high crime area also added to the RS. United States v. Muti, 2009 U.S. Dist. LEXIS 95418 (E.D. N.C. August 19, 2009) (USMJ R&R), adopted United States v. Muti, 2009 U.S. Dist. LEXIS 95420 (E.D. N.C. October 8, 2009).*

10/17/09

Permalink 10:08:48 am, by fourth, 314 words, 322 views   English (US)
Categories: General

WY: Sweep was valid for safety and to prevent destruction of evidence

The sweep of the premises was valid for safety purposes and to protect against potential destruction of evidence. Also, defendant lacked standing to challenge the search of his girlfriend's car that he was not present in when it happened. Miller v. State, 2009 WY 125, 217 P.3d 793 (2009):

[*P17] The district court also found that the officers restricted their sweep of the residence to actions which would eliminate those exigent circumstances. As in Rideout, the officers did what was necessary to secure Mr. Miller's residence, but otherwise did not conduct a search until they had obtained a warrant. They walked through the residence to ensure that there was no one inside who might destroy evidence or threaten officer safety. The sweep took a total of two minutes. Officers then left the residence and waited outside for the search warrant.

[*P18] The district court properly recognized that the presence of evidence that is easily destroyed does not, by itself, create an exigency justifying a warrantless search. It did, however, conclude that the presence of drugs, along with all of the other circumstances known to the officers at the time, created exigent circumstances justifying the sweep of Mr. Miller's residence. We find no error in this conclusion.

Defendant was in the driver's seat of a car that had come to a stop across a sidewalk against a fence. The police had reason to believe that he was under the influence of alcohol or drugs. When they removed him from the car and ordered him to the ground, he repeatedly took a combative stance toward them. Under the totality of the circumstances, the police had reasonable suspicion to stop Brown and probable cause to arrest him for driving under the influence and resisting arrest. People v. Brown, 217 P.3d 1252 (Colo. 2009).*

A trained narc observed a hand-to-hand drug transaction, and that was probable cause. Williams v. State, 2009 Md. App. LEXIS 163 (October 1, 2009).*

Permalink 09:20:15 am, by fourth, 378 words, 986 views   English (US)
Categories: General

CO: Towing business closely regulated under Burger

A towing company was closely regulated under Burger under Colorado law. A complaint was received for the towing companies towing a car without consent and holding it for ransom. The PUC investigated and sought towing records with authorization for the tow, but the towing company did not respond. The request for records within an enforcement proceeding was reasonable under the Fourth Amendment. Eddie's Leaf Spring Shop & Towing LLC v. Colo. PUC, 218 P.3d 326 (Colo. 2009):

Next, we consider whether the PUC's regulatory scheme satisfies the three Burger criteria necessary to make reasonable warrantless inspections. First, the state has a substantial government interest in protecting the public from the unauthorized taking of valuable personal property. The Colorado General Assembly has explicitly declared that: "the commission shall issue a permit to a towing carrier and may attach to such permit ... such restrictions, terms and conditions ... as are reasonably deemed necessary for the protection of the property of the public." § 40-13-106. Second, warrantless inspections are necessary to further the regulatory scheme. To respond promptly to stranded motorists and to protect their vehicles and personal property, the PUC enforcement personnel must have immediate access to information from carriers about who authorized the tow and where the vehicle is stored. Third, the PUC's inspection program provides a constitutionally adequate substitute for a warrant in terms of the certainty and regularity of its application. The PUC rules set clear bounds for when towing carriers must respond to records requests. Under Rule 6005(c), entities providing transportation by motor vehicle must furnish time-sensitive documents (including towing authorizations) upon demand, while they must provide other, less urgent business records within two to ten days after the request. 3 Based on the regulatory scheme, the towing carrier is necessarily aware that it must always carry towing authorizations when it takes possession of another's valuable property. See Exotic Coins, Inc. v. Beacom, 699 P.2d 930, 942 (Colo. 1985) (holding that an act, which required purchasers of valuable articles to maintain a register and to make weekly reports on the register's contents, made the buyer "necessarily aware" that the register of transactions will be subject to periodic inspections). Thus, we conclude that non-consensual towing is a closely regulated industry and that the state's regulations meet the requirements of a reasonable and constitutional warrantless administrative search.

Permalink 08:46:10 am, by fourth, 431 words, 746 views   English (US)
Categories: General

CA6: Consent search of hotel room permitted search of visitor's jacket that was unusually heavy

Renter of a motel room consented to a search of the room, and defendant's jacket was in the room. The officer picked up the jacket, and it was unusually heavy. The officer could search the jacket for officer safety. United States v. Adams, 2009 U.S. App. LEXIS 22485, 2009 FED App. 0363P (6th Cir. October 14, 2009):

Here, it is not disputed that Bond, as the renter of Room 241, had a legitimate privacy interest in the room and, thus, the authority to give consent to the officers to search the room for contraband. It is also undisputed that he gave such consent. Accordingly, Adams does not contend that his Fourth Amendment rights were violated by the search of the motel room. Instead, he contests the scope of Bond's consent and whether it extended to the inside pocket of Adams's jacket where the gun was found. Adams argues that his Fourth Amendment rights were violated when Sergeant Eby searched the interior pocket of his jacket, which was "kind of hidden" in the "little gap" between a bed and a wall. Thus, the question is: whether under the facts of this case, Adams--by his conduct--retained a sufficient expectation of privacy in the jacket, such that Sergeant Eby violated Adams's rights under the Fourth Amendment when he picked up the jacket, and when he searched the inside pocket. See United States v. Ross, 456 U.S. 798, 822-23, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (noting that Fourth Amendment protection varies depending on the factual circumstances in each situation). We find that he did not.

The district court concluded that Sergeant Eby's search of the motel room fell within the consent exception to the warrant requirement. Moreover, the court concluded that Bond's consent to search the motel room for contraband "included consent to look throughout the room in places where contraband could possibly be located[, a]nd that picking the jacket up off the floor was within the scope of that consent." (SuppTr., Vol. II at 227.) The court further found that once the jacket was picked up "Officer Eby asked whose jacket it was and nobody claimed it." Thus, the court determined that "there was no assertion of privacy in the jacket[, a]nd any privacy interest was effectively abandoned at the time under either version of the facts about when the gun was discovered in the jacket." Once Sergeant Eby picked up the jacket and determined that it was heavy, the court concluded that Eby "was entitled to determine for officer safety why it was heavy since there is a natural possibility that a weapon might be in the jacket."

10/16/09

Permalink 07:34:54 am, by fourth, 336 words, 422 views   English (US)
Categories: General

TN: Request to "look" in a car for drugs is a request for consent

A request to "look" for anything illegal would be commonly understood to mean consent to do a "quick search." State v. Brown, 294 S.W.3d 553 (Tenn. 2009):

In this case, as in Troxell, a reasonable person would have understood the request to "look" as seeking permission to conduct a search. The expressed area of the search was "in the vehicle." The expressed object of the search was illegal drugs. "A reasonable person may be expected to know that [illegal drugs] are generally carried in some form of a container" and rarely strewn across the floor of a vehicle. Jimeno, 500 U.S. at 251. Trooper Hoppe expressly limited the duration of the search by asking if he could take a "quick" look. Applying a common-sense interpretation to the entire verbal exchange, a reasonable person would have understood that the consent to search included consent to conduct a quick search of the interior of the vehicle and to handle any containers that might hold illegal drugs. The record shows that Trooper Hoppe promptly conducted the search and almost immediately found the package on the floorboard of the vehicle. At that point, the search was well within the scope of consent.

The defendant was arrested and a search incident occurred. The court finds the search valid under prior law or Gant, so Gant's retroactivity does not have to be decided. State v. Brown, 2009 Tenn. Crim. App. LEXIS 857 (October 8, 2009). [Note: This case is a Gant fumble: Since the defendant was handcuffed and in custody, it looks like a search incident, but the case is wrong to talk about search incident. Instead, it may have been valid as a search under the automobile exception, but the opinion is not clear.]

Officer's catch, search, and release of the defendant who was only formally arrested, two months later as a result of the search was an arrest by all accounts. The trial courts denial of the motion to suppress on the ground it was not an arrest was reversed. Belote v. State, 411 Md. 104, 981 A.2d 1247 (2009).

10/15/09

Permalink 06:00:03 am, by fourth, 560 words, 361 views   English (US)
Categories: General

E.D.Pa.: CI was not so involved to become a government agent for Franks purposes

The CI was not sufficiently involved with law enforcement activities to be a government agent for Franks purposes. United States v. Krall, 2009 U.S. Dist. LEXIS 95027 (E.D. Pa. October 9, 2009):

The Third Circuit has not articulated a standard for determining whether an individual is acting as an agent or instrument of the Government. Jackson, 617 F. Supp. 2d at 325. However, eight other Circuit Courts of Appeals have applied the following test or a close variant: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends. Id.; see also United States v. Ginglen, 467 F.3d 1071, 1074 (7th Cir. 2006); United States v. Alexander, 447 F.3d 1290, 1295 (10th Cir. 2006); Jarrett, 338 F.3d at 344-45 (4th Cir. 2003) (combining the two elements into "one highly pertinent consideration"); United States v. Steiger , 318 F.3d 1039, 1045 (11th Cir. 2003); United States v. Young, 153 F.3d 1079, 1080 (9th Cir. 1998); United States v. Jenkins, 46 F.3d 447, 460 (5th Cir. 1995); United States v. Malbrough , 922 F.2d 458, 462 (8th Cir. 1990); United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985) ("First, the police must have instigated, encouraged or participated in the search. Second, the individual must have engaged in the search with the intent of assisting the police in their investigative efforts.") (citations omitted).

Defendant had no standing in a "drug house." United States v. Grant, 2009 U.S. Dist. LEXIS 95076 (S.D. Ohio August 28, 2009):

The uncontradicted evidence indicated that the house at 617 Edison Street was uninhabited and used only as a place to carry on drug transactions. In other words, 617 Edison was a "drug house". Mr. Grant has provided no evidence that anyone lived in the house or kept any personal property in the house. There is certainly no evidence that Mr. Grant lived in the house or was even temporarily staying in the house, or that he ever so much as spent the night in house. Finally, there is no evidence that anyone, particularly Mr. Grant, kept any personal property in the house. Simply stated, there is no evidence that Mr. Grant was ever in the Edison Street house for personal purposes and therefore he had no privacy interest in the house. Because Mr. Grant had no privacy interest in the 617 Edison Street house, he had no standing to bring a Fourth Amendment challenge to the search of the premises. Therefore, his counsel's failure to challenge the search did not rise to the level of ineffective assistance of counsel. Mr. Grant's ineffective assistance of counsel claim as to the search of the Edison Street house should be denied.

"Having reviewed the dash-cam video and the transcript of the state-court suppression hearing, it is the Court's determination that Garcia did not violate §§ 66-7-330(B) and 66-7-345(C) NMSA (1978) and that Haanes mistakenly believed that Garcia was in violation of the traffic laws. The language of both traffic statutes is plain and unambiguous, and it was not objectively reasonable for Haanes to justify a valid traffic stop of Garcia. See United States v. Valadez-Valadez, 525 F.3d at 991." United States v. Garcia, 2009 U.S. Dist. LEXIS 94609 (D. N.M. September 10, 2009).*

Arrest for a felony does not need an arrest warrant, even if there is time to get one. Defendant had prior experience with the criminal justice system, and that is a circumstance favoring consent. United States v. Henderson, 2008 U.S. Dist. LEXIS 110370 (E.D. Mo. November 12, 2008).*

10/14/09

Permalink 06:45:29 am, by fourth, 469 words, 774 views   English (US)
Categories: General

D.Me.: Computer search protocol not always required for computer search warrant

Computer search authorization was particular and a search protocol was not required. United States v. Farlow, 2009 U.S. Dist. LEXIS 94778 (D. Maine September 29, 2009):

Authorization of a search of the computer was particular to the computer crime at issue. When the affidavit's recitation of probable cause describes the kind of computer crime at issue in this case, specification that a computer's contents will be searched is reasonably precise. For one thing: "A search of a computer and co-located disks is not inherently more intrusive than the physical search of an entire house for a weapon or drugs." Upham, 168 F.3d at 535. Moreover: "As a general proposition, any container situated within residential premises which are the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant." United States v. Gray, 814 F.2d 49, 51 (1st Cir. 1987) (citing United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)). See also Rogers, 521 F.3d at 9-10 (holding that warrant authorizing a search for "photos" reasonably authorized a search for images that might be found on a videotape). The warrant's authorization to retain Farlow's computer for purposes of a forensic examination was not overbroad because the probable cause recited by Det. Northrup was particularized with respect to computer crime.

. . .

I conclude that the probable cause recited in the warrant would have supported an explicit authorization to conduct a software-enabled visual scan of images located on the hard drive as one reasonable means of tracking down the body builder image (and related communications), because that image was evidence of the criminal conduct under investigation, even though it was not itself contraband. There is no need for a hearing to support a finding that Sgt. Lang could have focused his investigation on the AOL chat room communications, which may have or would have turned up evidence of the body builder image directly co-located with the pertinent criminal communications data. There is no constitutional requirement that investigators must conduct a search in any particular sequence in order to minimize the likelihood of uncovering contraband or other evidence of a crime, and the imposition of a search protocol ruling out a visual image search in a case like this would only afford special protection to those who engage in criminal conduct by computer.

Common authority was reasonably found from defendant's live-in girlfriend who was there with her children and she was dressed for bed. United States v. Zambrana, 2009 U.S. Dist. LEXIS 94684 (W.D. Mich. October 9, 2009).*

Stop of the defendant was proper when he fled from the police when they tried to talk to him. Police arrived to investigate a burglary, and defendant was across the street and nobody else was around. United States v. Broomer, 2009 U.S. Dist. LEXIS 94720 (D. Del. October 9, 2009).*

Permalink 06:29:07 am, by fourth, 406 words, 525 views   English (US)
Categories: General

MA: Locked bank bag not subject to inventory at station house under policy

A locked bank bag in a juvenile's possession was not properly subject to an inventory at the station house because the inventory policy did not deal with it. Commonwealth v. Vanya V., 75 Mass. App. Ct. 370, 914 N.E.2d 339 (2009):

Here, the policy was insufficiently precise in two respects. First, it did not spell out what to do with locked containers as opposed to those that are simply closed. As a subset of this, the policy also did not spell out what should be done with a locked container for which the officers have the key and a locked container for which they do not. Second, accepting the Commonwealth's position that the bank bag was "opened" pursuant to the policy requires stretching the meaning of "open" to a degree that would allow officers to choose among a limitless range of options, including (as here) destruction.

We have found no case that would permit an officer to break into or damage a locked container in order to conduct an inventory search. The purpose of an inventory is to protect the property of the owner and to protect officers from claims by the owner that the property was damaged. Permitting an officer to destroy or break into a locked container runs counter to the very purpose of the inventory exception. See Tennessee v. Cabage, 649 S.W.2d 589, 592 (Tenn. 1983). Moreover, breaking into the locked bank bag served no noninvestigatory purpose. There is no suggestion that the bag presented an immediate danger that required that it be opened immediately to protect public safety.

We conclude that the contents of the locked bank bag were not obtained as a result of a legitimate inventory search and, therefore, should have been suppressed. Suppression of the contents of the locked bank bag in turn requires that the adjudications based on the drug charges be reversed, there being no other evidence to support those charges. That being the case, whether the patfrisk or the search incident to arrest were valid are questions we need not, and do not, reach. Neither resulted in the discovery of evidence to support any of the adjudications.

Under the totality of circumstances, the defendant's van was believed by the police to be involved in a shooting incident, and that justified a stop. A minor error in the description (flag on mirror and not in back) was not enough to show a lack of RS. Commonwealth v. Lopes, 455 Mass. 147, 914 N.E.2d 78 (2009).*

10/13/09

Permalink 06:29:31 am, by fourth, 644 words, 515 views   English (US)
Categories: General

E.D.N.Y.: While a SI under Gant may not be proper, special exigencies may permit it (the terrorism card trumps the Fourth Amendment?)

Under Gant, the search incident of defendant's backpack was unreasonable because he was handcuffed and could not access it. Under Second Circuit authority, "exigent circumstances [can] justify a warrantless search of a closed container only when the police have reason to believe a container is concealing a dangerous instrumentality and that the hidden danger poses an imminent threat to either the arresting officers or the surrounding public." Here, the police did not have that either. "Special exigencies" may permit it. United States v. Morillo, 2009 U.S. Dist. LEXIS 94396 (E.D. N.Y. October 9, 2009), USMJ R&R 2009 U.S. Dist. LEXIS 94421 (E.D. N.Y. August 12, 2009):

Even without exigent circumstances, "[t]here may be cases in which the special exigencies of the situation would justify the warrantless search of a suitcase." Arkansas v. Sanders, 442 U.S. 753, 763 n.11. The Supreme Court in Chadwick noted that "there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage and disarming the weapon." 433 U.S. at 15 n.9 (citing Johnson, 467 F.2d at 639).

The circumstances of this case fit squarely into this justification for conducting a warrantless search of luggage. Morillo's furtive and evasive behavior gave the officers reason to believe he was hiding something potentially dangerous in his backpack at the time of his arrest. Officer Finnegan testified that "I need to know what's -- what's in that backpack and also what's going in my car as I transport it to the stationhouse." (July 2, 2009 Tr. 10-11.) According to Officer Finnegan, this was necessary for the safety of himself, his partner, the prisoner and the people around. (See R & R 11.)

Based on the information that they knew at the time of Morillo's arrest, Officers Lancer and Finnegan had reason to believe that Morillo was hiding a dangerous instrumentality in his backpack. Morillo had fled on his bicycle, continued fleeing on foot after crashing his bicycle, and then resisted arrest. This was in response to the officers' request for identification and their statement that the stop was directed at Morillo riding his bicycle on the sidewalk. Morillo's disproportionate response--attempting to avoid potential liability for violating the New York City Administrative Code by exposing himself to further criminal liability during the course of his failed get-away-properly gave the officers reason to suspect that Morillo fled and resisted arrest because he did not want a greater wrong uncovered.

Because police officers, in this age of terrorist-related threats, are on their guard for suspicious packages and furtive behavior in public places, Officers Lancer and Finnegan reasonably could have thought that Morillo was fleeing from a potential search of his own backpack. The circumstances in this case, therefore, justified the officers' steps to affirm their suspicions by opening Morillo's backpack before transporting it in their police car.

"[T]he police received information about a reported domestic violence incident involving one man and one woman in a residence at the end of a dead-end street, and minutes later happened upon a car containing one man and one woman driving away from that dead-end. The totality of these circumstances justifies a brief investigative detention in order to ascertain whether the individuals in the car were those involved in the reported criminal activity." United States v. Delano, 348 Fed. Appx. 258 (9th Cir. 2009) (unpublished).*

A protective sweep of a motel room was justified because of the number of people seen coming and going from in there. United States v. Carrillo, 2008 U.S. Dist. LEXIS 110320 (C.D. Cal. October 30, 2008).*

A search incident of defendant's van towed to the police station for search was invalid under Gant. Aldin v. State, 21 So. 3d 68, 34 Fla. L. Weekly D 2046 (Fla. 3 DCA 2009).

10/12/09

Permalink 08:42:20 am, by fourth, 457 words, 620 views   English (US)
Categories: General

FL2: 2 am knock-and-talk of motel room with "badgered" occupant was unreasonable

A knock-and-talk on a motel room in the early morning hours was unreasonable. The defendant consented to a fruitless search of the room and his car. Defendant's girlfriend, under the covers naked, who did not speak English so a translator was procured, was "badgered" into further consent because she "didn't want trouble," and she produced drugs from under the covers. Hardin v. State, 18 So. 3d 1246 (Fla. 2d DCA 2009):

Despite the fruitless searches of the car and motel room, the deputies badgered Ms. Sierra, telling her that they knew she had drugs. They promised not to charge her if she cooperated. Ms. Sierra responded that she wanted no trouble. The deputies continued to badger her. Ms. Sierra relented and handed them a purse containing cocaine from under the sheets. The male deputies then left the room while Ms. Sierra dressed. In the parking lot, Mr. Hardin shouted that the drugs were his. He was arrested.

. . .

The deputies initiated the "knock and talk" encounter in the early morning hours. Although not dispositive, the lateness of the hour "add[s] to the intimidating circumstance[s]" faced by Mr. Hardin and his wife. See Kutzorik, 891 So. 2d at 648.

The number of deputies who descended on the motel room suggests that Ms. Sierra acquiesced to law enforcement authority. See Miller, 865 So. 2d at 588 (holding that the presence of three officers in uniform was a considerable show of authority sufficient to create the perception that a major criminal investigation was underway). In Kutzorik, the presence of three uniformed police officers in the defendant's small trailer implied coercion. 891 So. 2d at 648. Here, Mr. Hardin's motel room was not very big or spacious. See Royer v. State, 389 So. 2d 1007, 1018 (Fla. 3d DCA 1979) (holding that being in a small enclosed area confronted by two police officers presents an almost classic definition of imprisonment), aff'd, 460 U.S. 491 (1983).

When Ms. Sierra handed over the contraband, three deputies were in the room; Mr. Hardin remained outside with a K-9 officer. That two of the deputies in the room were men makes it even more likely that the naked Ms. Sierra was intimidated by the show of authority. See Malinski v. New York, 324 U.S. 401, 407 (1945) (holding that questioning defendant in a hotel room with only a blanket covering him was a tactic of humiliation and the subsequent consent invalid).

Defendant's arguments about lack of PC for his arrest and search of his car are essentially hypertechnical arguments about what the officers did and did not do. Because PC is not defined by a "neat set of legal rules," the officers did not have to credit defendant's denial of involvement when questioned nor question him further before arresting him. United States v. Sain, 2009 U.S. Dist. LEXIS 93786 (W.D. Tenn. October 7, 2009).*

10/11/09

Permalink 10:00:55 am, by fourth, 493 words, 508 views   English (US)
Categories: General

AR: False compartment was PC; once it was found, it was too late to revoke consent

The officer's finding of a false compartment during a consent search was probable cause. Revocation of consent at that point was too late. Espinoza v. State, 2009 Ark. App. 636, 2009 Ark. App. LEXIS 800 (September 30, 2009).*

Defendant did not testify at the suppression hearing, and he failed to prove standing. People v Lacey, 66 A.D.3d 704, 887 N.Y.S.2d 158 (2d Dept. 2009).*

Police got an anonymous letter about drug activity at defendant's house, so they went to do a knock-and-talk. When she opened the door, the officers could smell marijuana. She then consented to a search. State v. Prosen, 19 So. 3d 594 (La. App. 3d Cir. 2009).*

Defendant lived in a high crime area, and he was the subject of a tip. The officer saw the police and fled into his own place. The officer gave chase, but got to the door and could not get in. Finally, he did, and it was unreasonable. State v. Harris, 21 So. 3d 437 (La. App. 3d Cir. 2009)*:

Although we do not find flagrant misconduct by the police, the fact remains that we do not know enough about the initial tip to find it sufficiently reliable. We do not find Defendant's flight from his own front yard to his own room to be particularly suspicious even though the yard and his room exist within a high crime area and the yard contained possible drug paraphernalia. We cannot determine, based on the record, whether Defendant willingly opened the door to his room. We cannot know if Defendant consented to be escorted from his room or the temporal proximity of this escort to the ultimate consent to search. From Deputy Henson's testimony, it is clear that Defendant did not willingly give his wallet to the officer. There is also no testimony regarding whether Defendant was told he did not have to comply with the officer's request to search his wallet.

We agree with the trial court that Deputy Henson obtained consent to search the Defendant's wallet. However, considering the officers' conduct, and the many unknown facts surrounding this incident, we must conclude that the State failed to meet its burden to prove not only that Defendant gave his consent, but also that the consent was free and voluntary.

Defendant's car was blocked by an officer, and he asked the officer to let him leave, which the officer did not. Instead, he was ordered out of the vehicle, and that became a seizure. State v. Johnson, 2009 Ohio 5377, 2009 Ohio App. LEXIS 4532 (8th Dist. October 8, 2009)*:

[*P19] However, when Detective Rasberry ordered appellee out of the vehicle, the encounter could no longer be classified as one where an individual would feel free to disregard the officer's commands or feel free to leave. Detective Rasberry ordered appellee out of the car and opened the door of the car appellant was in. These actions are not indicative of a consensual request. Appellee was seized before Detective Rasberry opened the car door. As such, this interaction must be classified as an investigatory stop.

Permalink 09:50:47 am, by fourth, 177 words, 354 views   English (US)
Categories: General

GA: Going to defendant's porch after car was found wrecked nearby was not a seizure

Going to defendant's porch to find him after an accident and abandoned car was not a violation of the Fourth Amendment. The officer knocked on the door, defendant answered, and the officer told him to step outside, which he did. This was not a seizure. Johnson v. State, 300 Ga. App. 605, 685 S.E.2d 339 (2009).*

Defendant was not stopped by officer's questions when he had stopped at gas pumps in a truck stop and was walking into the building. RS had developed. Baker v. State, 300 Ga. App. 307, 684 S.E.2d 427 (2009).*

Defendant's specific appellate issue on the reliability of the informant was not litigated below, so it could not be considered on appeal. State v. Pilgrim, 2009 Ohio 5357, 184 Ohio App. 3d 675 (10th Dist. 2009).*

Anonymous tip and defendant being in a high crime area was not reasonable suspicion. In re D.W., 2009 Ohio 5406, 184 Ohio App. 3d 627, 921 N.E.2d 1114 (2d Dist. 2009).*

Defendant's furtive movements were RS, and led to the officer who stopped him calling for backup which lawfully extended the stop. State v. Glynn, 2009 Ohio 5401, 2009 Ohio App. LEXIS 4559 (2d Dist. October 9, 2009).*

10/10/09

Permalink 08:04:49 am, by fourth, 397 words, 419 views   English (US)
Categories: General

NC: SW materials not opened to public while investigation proceeds

There was only a qualified right of access to search warrant materials under statute and the First Amendment, and the district court did not abuse its discretion in not opening the materials when the murder investigation was still ongoing and no one had been arrested. In Re: Search Warrants Issued in Connection with the Investigation into the Death of Nancy Cooper, COA08-1280 (October 6, 2009:

We hold that the trial court properly sealed all the search warrants at issue in this case. A motion to seal search warrants and related documents is usually made when the government applies for the warrant. Baltimore Sun, 886 F.2d at 65. As stated in the 2008 Administrative order, law enforcement officers may notify the District Attorney’s office to obtain a motion and order to seal a search warrant at the time the affidavits and applications for search warrants are submitted to the trial court. However, as in the present case, a trial court judge may issue an ex parte sealing order at his discretion.

It is appropriate to seal such documents “when sealing is ‘essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. At the time the probable cause affidavits were submitted and search warrants were issued, no suspect had been arrested in connection with Nancy Cooper’s homicide. Disclosure of the information contained in the affidavits and search warrants, as the trial court included in the order, would have been “premature, since the homicide investigation [was] ongoing and no perpetrator ha[d] been charged.”

If the trial court “decides to close a hearing or seal documents, ‘it must state its reasons on the record, supported by specific findings.’” In Re Washington Post, 807 F.2d 383, 391 (4th Cir. 1986) (quoting Knight Publishing Co., 743 F.2d at 234). The trial court “may explicitly adopt the facts that the government presents to justify sealing when the evidence appears creditable. But the decision to seal the papers must be made by the judicial officer[.]” Baltimore Sun, 886 F.2d at 65. The United States Supreme Court has “emphasized that the interest to be protected by closing trial proceedings [or sealing search warrants] must ‘be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.’” Id. at 65 (quoting Press-Enterprise, 464 U.S. at 510, 78 L. Ed. 2d at 638). “[C]onclusory assertions are insufficient to allow review; specificity is required.” Id. at 66.

Permalink 06:13:23 am, by fourth, 623 words, 329 views   English (US)
Categories: General

FL: Motorist who did not see police or lights was not seized until he actually knew they were there

Defendant who had his head down and was rolling a blunt never saw the police approach on foot to his car, so he was not seized by their approach. He did not even see the lights of the police car, so a per se rule of lights = seizure cannot be applied. Once he saw the officers, he was seized, and he clearly could not leave. The court notes that it cannot apply the law to permit a citizen to leave because it would be dangerous to the citizen. G.M. v. State, 19 So. 3d 973 (Fla. 2009), affg G.M. v. State, 981 So. 2d 529 (Fla. 3d DCA 2008):

Despite our approval of the Third District's conclusion with regard to the general inappropriateness of per se rules in the Fourth Amendment analysis context, we cannot agree with its further conclusion that, even if G.M. had been aware of the emergency lights, a seizure would not have occurred under the totality of the circumstances here. See G.M., 981 So. 2d at 534. The record reflects that the officers rapidly crossed the public street in their vehicle with emergency lights activated, entered the park, and positioned the police vehicle behind the two parked cars around which the individuals were congregating. There is absolutely no indication that the officers believed the individuals to be in need of aid, and the individuals certainly did not exhibit conduct to indicate that they sought police assistance. Cf. Evans, 764 N.E. 2d at 843; Johnston, 620 N.E. 2d at 129; Blair, 14 P.3d at 665. The officers, although not in uniform, exhibited badges and possessed handguns as they exited the vehicle. Finally, while one officer approached the Lexus, the second officer positioned himself to observe the individuals and was prepared to apprehend anyone who attempted to leave the area.

It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave. See Mendenhall, 446 U.S. at 554. Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances. Instead, as a matter of safety to both the public and law enforcement officers, we conclude that a citizen who is aware of the police presence under the specific facts presented by this case is seized for Fourth Amendment purposes and should not attempt to walk away from the police or refuse to comply with lawful instructions.

"Personal service" of a search warrant is not required by the state constitution, but it is by statute, but, in some cases, it is impractical. A failure of personal service does not void the search. Darity v. State, 2009 OK CR 27, 220 P.3d 731 (2009):

[*P12] Personal service of the warrant on a person found within the premises at the time of the search protects both officers and occupants by discouraging resistance and informing those within the premises that the intrusion is under lawful authority. However, personal service on persons located elsewhere when the warrant is executed is unnecessary to ensure the reasonableness of the search or protect the legitimate interests of the parties affected. Other statutes serve to safeguard the liberty and property interests of persons affected by execution of a search warrant on their property. 22 O.S.2001, §§ 1233-1240. These laws provide for a publicly filed inventory of the search, delivery of an inventory to the person whose property was seized, the right to judicial hearing on the issuance of the warrant, the right to restoration of property unlawfully seized, and criminal sanctions against officers who maliciously procure warrants without probable cause or execute them with "unnecessary severity." 22 O.S.2001, §§ 1233-1240.

10/09/09

Permalink 06:33:33 pm, by fourth, 129 words, 460 views   English (US)
Categories: General

Sen. Franken reads DoJ official Fourth Amendment during hearings on Patriot Act

Sen. Franken read a DoJ official the Fourth Amendment during a hearing about roving wiretaps. "This is surreal" responded the official.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part: “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question.

Permalink 08:11:00 am, by fourth, 468 words, 479 views   English (US)
Categories: General

D.V.I.: Business records warrant for voluminous records was not overbroad

The search warrant here for voluminous records was not overbroad. United States v. Jackson, 2009 U.S. Dist. LEXIS 93468 (D. V.I. October 2, 2009)*:

Jackson argues that the warrant in this case lacked particularity and was constitutionally overbroad because it authorized seizure of a wide array of personal documents and records. See Def.'s Mem. in Supp. of Mot. to Suppress at 4-6. The warrant authorizes seizure of specific categories of documents including "bank records, monthly statements of account checks, deposit slips, wire transfer applications, savings passbooks, certificates of deposit, monetary instruments, or other documents and instrumentalities relating to the obtaining, movement, or securing of money." Additionally, the warrant authorizes seizure of "equipment used in the cultivation of marijuana," "books, magazines, papers, notes and contact information related to the cultivation of marijuana;" "identification documents," "records relating to foreign and domestic travel, "records of asset acquisitions" and "other items constituting proceeds of criminal activity." Defendant claims that "the warrant failed to restrict government agents in any meaningful way, converting the warrant into the type of general warrant prohibited by the Fourth Amendment." Id. at 5-6.

The breadth of items to be searched and seized 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. See Yusuf, 461 F.3d at 396. In United States v. American Investors of Pittsburgh, 879 F.2d 1087 (3d Cir. 1989), the government sought twenty-three categories of documents as evidence of money laundering and the defendants argued that the search was unconstitutionally overbroad. The Third Circuit Court of Appeals disagreed, noting that a broad range of documents were required to be searched to "sort[] out the details of th[e] sophisticated scheme." Id. at 1106. The court explained that "[t]he fact that the warrant authorized a search for a large amount of documents and records does not necessarily render the search invalid so long as there exists a sufficient nexus between the evidence to be seized and the alleged offenses." Id. at 1105-06; see Yusuf, 461 F.3d at 393; see also United States v. Kepner, 843 F.2d 755 (3d Cir. 1988) (holding that search warrant seeking "documents, records, and personal effects" of defendants was sufficiently particular and was not impermissibly overbroad).

After reviewing the application in the present case, the Court concludes that the warrant did not violate the particularity principle, as the warrant was limited in that it specified that agents were searching for evidence of a specifically enumerated federal crime and the evidence sought related to drug trafficking activities. The warrant in this case clearly describes the automobiles as well as the specific locations of the houses to be searched. The warrant authorizes the seizure of only those items which tend to show Jackson's involvement in the criminal activity being investigated.

Permalink 08:07:33 am, by fourth, 140 words, 426 views   English (US)
Categories: General

D.Ore.: Probation strip search without RS would be unreasonable

Plaintiff's strip search for a probation violation, without reasonable suspicion, survives summary judgment. Norland v. Oregon, 2009 U.S. Dist. LEXIS 93470 (D. Ore. June 25, 2009).*

"[T]he district court properly concluded that probable cause and exigent circumstances justified the warrantless intrusion into Thomas's residence. The officers reasonably believed that narcotics were present and might be destroyed before a warrant could be secured, and their intrusion was limited and directly proportional to the exigency of this case. Accordingly, we conclude that probable cause and exigent circumstances permitted the officers to enter the house." United States v. Thomas, 348 Fed. Appx. 497 (11th Cir. 2009) (unpublished).*

Court credits officers that defendant dropped a substantial quantity of drugs in a bag fleeing from a traffic stop rather than the bag being left in the car. United States v. Aquino, 2009 U.S. Dist. LEXIS 93660 (S.D. N.Y. October 7, 2009).*

Permalink 07:43:14 am, by fourth, 256 words, 410 views   English (US)
Categories: General

CA5: Tasering that did not stop defendant was not a seizure

Two men fled from a police stop. One was tasered and seized, and appellant was hit by only one probe and escaped. He dropped evidence after the tasering. He was not seized when the evidence was dropped. United States v. Jones, 347 Fed. Appx. 129 (5th Cir. 2009) (unpublished).

Search and seizure of a cellphone was proper under a search warrant. United States v. Correa, 347 Fed. Appx. 541 (11th Cir. 2009) (unpublished). Here, the language of the warrant did not say "cellphones," but it was close enough to easily include it:

The warrant granted agents the authority to seize "written records of names, addresses, telephone numbers and/or photographs, and/or other information regarding buyers, manufacturers and sellers of narcotics, including but not limited to digitally recorded numbers on caller identification units and pagers and any other evidence that may be connected in the commission of the crime." The agents reasonably concluded that Correa's cellular telephone, a "known tool of the drug trade," contained digital evidence about the conspiracy. United States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990).

There was sufficient proof supporting defendant's warrantless arrest for a felony under Pringle. United States v. Jones, 345 Fed. Appx. 872 (4th Cir. 2009) (unpublished)*; Williams v. State, 2009 Md. App. LEXIS 158 (October 1, 2009).*

There was reasonable suspicion for stopping defendant based on his Mexican license plate being partially obstructed under state law. Also, defendant did not argue below as a mistake of law vs. mistake of fact, so that had to be reviewed for plain error, which it wasn't. United States v. Montes-Hernandez, 350 Fed. Appx. 862 (5th Cir. 2009) (unpublished).*

10/08/09

Permalink 08:23:07 am, by fourth, 308 words, 362 views   English (US)
Categories: General

W.D.Ark.: RS from the stop of another person who ratted out defendant

Based on the stop of another person who said he got drugs from the defendant, and the defendant was seen coming from the same motel room, the officers had reasonable suspicion to stop him. United States v. Alston, 2009 U.S. Dist. LEXIS 92189 (W.D. Ark. September 25, 2009).*

A window tint violation justified defendant's stop, which reasonably took 90 minutes because of discoveries about defendant during the stop. United States v. Gonzalez, 2009 U.S. Dist. LEXIS 91833 (M.D. Fla. September 15, 2009).*

Tennessee's probation search law is virtually the same as the one in Knights, and this one was valid under the totality of circumstances. United States v. Seigle, 628 F. Supp. 2d 784 (E.D. Tenn. 2008).*

Officers had an arrest warrant for defendant, but whether there was probable cause to believe he was there was a close call. But, that entry led to no evidence against him, so there is nothing to suppress. United States v. Giwa, 617 F. Supp. 2d 1086 (D. Nev. 2007).*

In an internet stalking case, the chat session that said that the purported under age girl was under 16 was probable cause for arrest. United States v. Haile, 2009 U.S. Dist. LEXIS 92949 (W.D. Ky. September 28, 2009),*

Officer had only statement from a likely unreliable CI that defendant was carrying drugs, but he stopped defendant for a traffic offense for which there was cause. Then he smelled marijuana, and that gave probable cause for a search. United States v. Corica, 2009 U.S. Dist. LEXIS 92963 (N.D. W.Va. October 6, 2009).*

An application for a search warrant for a videocamera and tape in a child pornography case that was six months after the alleged production was not stale because it was shown that it was likely that both would still be around. Defendant was an "avid videographer" who recorded all kinds of family events. United States v. Coutentos, 2009 U.S. Dist. LEXIS 91751 (N.D. Iowa September 29, 2009).*

10/07/09

Permalink 08:09:38 am, by fourth, 297 words, 334 views   English (US)
Categories: General

W.D.Mo.: Court relies on "right to be let alone" case and finds consent

Defendant consented to his search, but the court puzzlingly almost refers to the "right to be let alone." United States v. Frazier, 2009 U.S. Dist. LEXIS 91670 (W.D. Mo. September 14, 2009):

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." U.S. CONST. amend. IV. As made clear in the Fourth Amendment, the constitution does not forbid all searches and seizures, but only unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L. Ed. 2d 1669 (1960). Nonetheless, as the United States Supreme Court pointedly noted over one hundred years ago:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Union Pacific Railroad Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L. Ed. 734 (1891).

The officers testified that the defendant consented three times. "Who is telling the truth? It boils down to an issue of credibility and inferences drawn from the totality of the circumstances. The United States has proven, by a preponderance of the evidence, that the officers have testified truthfully, and their version is believed. Accordingly, the court finds that Mr. Gaines consented to a search of his motel room and there was no violation of the Fourth Amendment. Therefore, it is recommended that his motion to suppress evidence (Doc. 26) be denied." United States v. Gaines, 2009 U.S. Dist. LEXIS 92121 (E.D. Tenn. September 11, 2009).*

The officers had probable cause to arrest defendant in the common hallway of his apartment building. United States v. Carney, 661 F. Supp. 2d 732 (W.D. Ky. 2009).*

Permalink 07:53:11 am, by fourth, 320 words, 571 views   English (US)
Categories: General

Guam: Sufficient exigent circumstances justified warrantless entry after beeper alert

The government showed sufficient exigent circumstances with probable cause to justify a warrantless entry after a beeper alerted the officers. United States v. Salas, 2009 U.S. Dist. LEXIS 92550 (D. Guam October 2, 2009):

The court is not persuaded by Defendants' arguments against the exigent circumstances theory. First, Defendants emphasized Officer McDonald's admissions, on cross-examination, that the beepers do not give very detailed information as to their location, and that their signal range "depends on the terrain." But such facts could only go to the question whether the officers had probable cause to believe that the package was in Defendant Paulino's house, and, as shown above, the court's analysis of that question does not somehow require that the beeper have provided accurate, detailed location information. Rather, under Alaimalo, it is enough that the officers saw Defendant Paulino carry the package out of Shirley's; followed him and Defendant Salas to a driveway in Ipan-Talofofo; and entered the house at the top of the driveway--the house that had Defendants' cars parked in front of it. See Alaimalo, 313 F.3d at 1193. What was important to the court's analysis was that beepers accurately indicate when breach has occurred, as it is this information that created the exigency. And, again, Officer McDonald testified that the beepers are (in his experience) 100% accurate in this regard.

Inconsequential errors in the affidavit for the search warrant were not material under Franks and did not affect the finding of probable cause. United States v. Yokshan, 658 F. Supp. 2d 654 (E.D. Pa. 2009):

The Defendant fails to establish the necessary "substantial preliminary showing" to warrant a Franks hearing since the Defendant cannot demonstrate that the purported omissions are necessary to a finding of probable cause in light of the plethora of available corroborating evidence. In short, the Defendant highlights minor and/or inconsequential discrepancies that are insufficient to overcome the presumption of validity with respect to the Affidavits in support of the Warrants.

10/06/09

Permalink 07:25:35 am, by fourth, 188 words, 401 views   English (US)
Categories: General

NY4: State failed in burden to justify a patdown; officer not called

State failed to prove that defendant's patdown was justified because of lack of fear for a weapon, but it was harmless here. The officer who conducted the patdown was not even called as a witness. People v Lazcano, 66 A.D.3d 1474, 885 N.Y.S.2d 838 (4th Dept. 2009)*:

Here, the People failed to meet that burden. They established that the police were justified in stopping defendant and conducting the pat-down search ..., but they failed to establish that the officer who conducted the pat-down search was justified in reaching into defendant's pocket and seizing the knife. That officer did not testify at the suppression hearing, and the testimony of the officer who witnessed the pat-down search was insufficient to establish that the search of defendant's pocket was legal .... We nevertheless conclude that there is no reasonable possibility that the court's error in refusing to suppress the knife might have contributed to the conviction, and thus the error is harmless beyond a reasonable doubt ....

Marijuana smoke coming from defendant’s car window during a valid stop was probable cause under the automobile exception. State v. Cowling, 2009 Ala. Crim. App. LEXIS 120 (October 2, 2009).*

Permalink 07:14:11 am, by fourth, 288 words, 398 views   English (US)
Categories: General

FL3 discusses how state constitution must be interpreted the same as the Fourth Amendment

FL Constitution has to be interpreted the same as the Fourth Amendment, and defendant loses. State v. Moreno-Gonzalez, State v. Moreno-Gonzalez (Fla. App. 3d DCA September 30, 2009):

Thus, prior to passage of the 1982 revisions to Article I, Section 12, Florida courts "were free to provide its citizens with a higher standard of protection from governmental intrusion than that afforded by the federal constitution." State v. Lavazzoli, 434 So. 2d 321, 323 (Fla. 1983). With this amendment, however, Florida courts became bound to follow the interpretations of the United States Supreme Court with relation to the Fourth Amendment, and provide no greater protection than those interpretations. See State v. Butler, 655 So. 2d 1123, 1125 (Fla. 1995) ("This Court is bound, on search and seizure issues, to follow the opinions of the United States Supreme Court regardless of whether the claim of an illegal arrest or search is predicated upon the provisions of the Florida or United States Constitutions.") (citations omitted); Bernie v. State, 524 So. 2d 988, 992 (Fla. 1988). Indeed, an exclusionary rule that was once constitutionally mandated in Florida can now be eliminated by judicial decision of the United States Supreme Court. Bernie, 524 So. 2d at 990-91. We note that our Supreme Court has not addressed the post-1982 interplay of the above-quoted sentences in Article I, Section 12, where a search warrant was procured upon probable cause shown by an officer who swore to the allegations in the affidavit under oath before the judge, initialed each of the pages of the affidavit, and also initialed each of the three pages of the search warrant but did not sign the affidavit.

Mall security guards are state actors not subject to the Fourth Amendment. They detained and handcuffed the defendant and held him for police. State v. Santiago, 2009 NMSC 45, 147 N.M. 76, 217 P.3d 89 (2009).*

Permalink 06:58:19 am, by fourth, 557 words, 531 views   English (US)
Categories: General

IN: Taking DNA during investigation required only reasonable suspicion

Taking a DNA sample as an investigative tool only required reasonable suspicion under Fourth Amendment and state constitution. Garcia-Torres v. State, 2009 Ind. App. LEXIS 2043 (September 30, 2009):

After comparing cheek swabs with other searches requiring only reasonable suspicion, we conclude that the DNA sample collection technique at issue here, although minimally invasive, is also one of those limited searches that requires only reasonable suspicion and may therefore be conducted without a warrant. If anything, the cheek swab involves much less impact on the subject than some other searches that all agree may be conducted based on mere reasonable suspicion. As the United States Supreme Court has observed, "[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience." Terry, 392 U.S. at 24-25. And yet, it is universally understood that such a pat-down may be conducted upon reasonable suspicion.

In contrast, a cheek swab takes even less time than a pat-down or field sobriety tests ("FSTs") and is painless. Moreover, a swab of the inside of the cheek is very limited in scope, whereas a pat-down will generally involve manual exploration of the entirety of a suspect's body, including the genital areas. Finally, a swab does not carry nearly the same potential for opprobrium as pat-downs or FSTs, which will typically occur on public thoroughfares. As such, swabs are even less violative of the "[t]he interests in human dignity and privacy which the Fourth Amendment protects" than pat-downs or FSTs. Schmerber, 384 U.S. at 769-70. If pat-downs and FSTs may be performed based upon mere reasonable suspicion, it follows, then, that cheek swabs, which are even less burdensome, may be as well.

The United States District Court for the District of South Carolina has reached the same conclusion. See In re Shabazz, 200 F. Supp. 2d 578, 585 (D.S.C. 2002). The Shabazz Court concluded that collection of a saliva sample by cheek swab lies somewhere between a "surgical procedure" involving a protrusion under the skin, which requires a showing of probable cause, and things such as the collection of voice samples, handwriting exemplars, and fingerprinting, which are not even searches subject to the Fourth Amendment. Id. at 582, 584 (citing Schmerber, 384 U.S. at 767). Although the Shabazz Court concluded that particularized suspicion was required before a saliva swab could be administered, it also concluded that a saliva swab did not rise to the level of a "surgical procedure" under Schmerber. Id. at 584. It followed, then, that the existence of reasonable suspicion would suffice. Id.

Concluding, as we do, that a cheek swab is a search which is justified by the presence of reasonable suspicion, the only other question is whether police had reasonable suspicion in this case. ...

Here, we conclude that police had far more than a mere hunch that Garcia-Torres had been involved in the attack on S.P. when they collected the DNA sample. ... These objective facts, taken together, support a reasonable suspicion that Garcia-Torres was S.P.'s attacker, thereby justifying the cheek swab.

Nighttime knock and talk was more than minimally intrusive, but officers were not in the house and there were no consequences from failure to respond. Therefore it was reasonable under the Fourth Amendment and the state constitution. Brown v. State, 913 N.E.2d 1253 (Ind. App. 2009).*

10/05/09

Permalink 06:32:21 am, by fourth, 602 words, 964 views   English (US)
Categories: General

CA10: Officer's sticking head in window to conduct a sniff was a search without probable cause

During a traffic stop, the officer stuck his head 2" in the car to conduct his own sniff, and that was a search. Caballes is distinguished because, although involving a dog, that sniff was of the exterior of the vehicle. The government relied on probable cause for the search, but it is clear that the probable cause did not exist until after the search. Therefore, its reliance on the automobile exception is unavailing. United States v. Montes-Ramos, 347 Fed. Appx. 383 (10th Cir. 2009) (unpublished):

The only basis we can see for concluding Rodriguez's sniff was not a search is by analogy to cases involving canine sniffs. In Illinois v. Caballes, the Court held a canine sniff of the exterior of a vehicle during a lawful traffic stop "does not rise to the level of a constitutionally cognizable infringement." 543 U.S. 405, 409 (2005). The Court explained:

The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

Id. at 410. We are attracted by the reasoning in Caballes; but it is significant that the dog sniff at issue there was conducted on the exterior of the car. While it revealed information about the car's contents, the dog did not actually intrude into the car's protected space. Moreover, because a drug dog is trained to alert only to the presence of drugs, its "search" will only disclose information about the presence of certain contraband; it will reveal nothing about other (presumably innocent) smells. Though farfetched, Rodriguez's sniff could have revealed information about Montes-Ramos' private, lawful activities--the perfume of a recently departed passenger, a recently consumed lunch, a wet dog--as well as illegal activities--contraband or perhaps a decomposing body.

We conclude a police officer's intentional act of intruding a vehicle's air space, even if by only a few inches, constitutes a search within the meaning of the Fourth Amendment. It would be different if Rodriguez had smelled marijuana prior to leaning into Montes-Ramos' vehicle. Under the plain view doctrine, "a law enforcement officer [may] seize evidence of a crime, without violating the Fourth Amendment, if (1) the officer was lawfully in a position from which the object seized was in plain view, (2) the object's incriminating character was immediately apparent ... and (3) the officer had a lawful right of access to the object." United States v. Angelos, 433 F.3d 738, 748 (10th Cir. 2006) (quotations omitted). The plain view doctrine is equally applicable to plain smells, such that no search occurs if a police officer detects an odor of illegal drugs, alcohol, chemicals or the like from a location in which he is entitled to be. See id. at 748 ("The plain smell doctrine ... is simply a logical extension of the plain view doctrine ....") (quotations omitted); United States v. Merryman, 630 F.2d 780, 784 (10th Cir. 1980) ("This Circuit has held that the smelling of marijuana by an experienced observer furnishes probable cause for the search."); see also Kyllo, 533 U.S. at 43-44 (Stevens, J., dissenting) ("[A]romas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building."). But Rodriguez did not smell marijuana prior to leaning his head into Montes-Ramos' vehicle. Instead he was suspicious Montes-Ramos might be trafficking drugs and leaned his head in "[f]or assurance." (R. Vol. III at 16.)

[Update: Also posted on Kansas Defenders blog.]

Permalink 06:25:36 am, by fourth, 350 words, 339 views   English (US)
Categories: General

D.Kan.: Defendants [barely] showed standing in car borrowed from boss

Defendants were in a vehicle owned by their boss who let them drive it. The name given matched the registration information, so he [barely] showed his standing of lawful possession of the vehicle. United States v. Perez, 2009 U.S. Dist. LEXIS 91408 (D. Kan. September 30, 2009):

Nonetheless, the court believes that under the circumstances, and viewing the facts in the light most favorable to the defendants, defendants have met their burden, although scantily, to establish standing. Defendant Perez stated that he gained possession of the pick-up from his boss who owned the vehicle. Dispatch apparently confirmed that the registration given to the Trooper by defendant Perez was in fact for the pick-up he was driving, and that the person named by defendant Perez as his boss was in fact the registered owner of the pick-up. "The proponent of a motion to suppress need not always come forward with legal documentation establishing" lawful possession of the area searched, [but] "the proponent must at least state that he gained possession from the owner or someone with the authority to grant possession." United States v. Martinez, 983 F.2d 968, 973 (10th Cir. 1992), citing United States v. Miller, 821 F.2d 546, 548 & n. 2 (11th Cir.1987)), cert. denied, 507 U.S. 1056 (1993). Defendant Perez has sufficiently done so.

Turn signal violation led to traffic stop which resulted in a plain view of crack in the cupholder in plain view. The search of the car after that was with probable cause. United States v. Hudson, 2009 U.S. App. LEXIS 21544 (3d Cir. September 29, 2009) (unpublished).*

Defendant was a law enforcement officer who was under investigation for child pornography on his computer. He cooperated with police and consented to a search. As a law enforcement officer, he understood his legal ability to not consent. United States v. Cole, 2009 U.S. Dist. LEXIS 91345 (D. Neb. October 1, 2009).

The determination of defendant’s lack of standing in his mother’s house while he was in jail is not as clear as the USMJ found, but, standing aside, the search was still valid under the good faith exception. United States v. Alexander, 2009 U.S. Dist. LEXIS 91466 (W.D. La. September 30, 2009).*

10/04/09

Permalink 01:16:48 pm, by fourth, 481 words, 390 views   English (US)
Categories: General

W.D.La.: No REP in mother's house; he hadn't stayed overnight in two weeks prior to search

Defendant who occasionally stayed in his mother’s house, but not in the previous two weeks, had no reasonable expectation of privacy in the premises to contest a search. United States v. Alexander, 2009 U.S. Dist. LEXIS 91297 (W.D. La. September 16, 2009)*:

In this case, Alexander clearly did not reside at the home, nor was he a co-tenant or co-owner of the home. Alexander testified in his Affidavit that he was a frequent visitor at his mother's home, that he often kept personal belongings at her home, and that he fairly frequently stayed overnight. Alexander cites Minnesota v. Olson, supra, in support of the proposition that "staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society." However, Olson is distinguishable because, in that case, the defendant had spent the night previous to his arrest in the house which was the subject of the search at issue. In the instant case, there is no evidence in the record that Alexander had spent the night at the subject premises in over two weeks prior to the search, much less on the evening just before the search.

Additionally, Alexander cites Rose v. United States, 629 A.2d 526 (D.C. 1993) for the proposition that the close kinship of the defendant and the owner of the searched premises is relevant in determining standing, even without an overnight stay. The facts in Rose are likewise distinguishable. Alexander has failed to offer any evidence that he had a key to the home or that he had unencumbered access to the home. See also United States v. Haydel, 649 F.2d 1152 (5th Cir. 1981). Further, Alexander failed to offer evidence that he had the ability to exclude others from the home when he wanted privacy.

Officers came up to defendant’s parked car and asked the driver and the passenger simultaneously for their identification. No matter how nice the officers were, it was still a stop. Defendant gave a false name in response to an unlawful stop because there was no reason to stop the defendant’s car. State v. Anderson, 231 Ore. App. 198, 217 P.3d 1133 (2009) (en banc).*

Defendant has no constitutionally recognized privacy interest in an emergency room room where he was being cared for after an accident where he was DUII under State v. Cromb, 220 Ore. App. 315, 185 P.3d 1120, rev den, 345 Ore. 381, 195 P.3d 911 (2008), decided after this case was submitted. His consent to a BAC test was not voluntary. State v. Machuca, 231 Ore. App. 232, 218 P.3d 145 (2009) (en banc)*:

Thus, in light of Newton and the other factors discussed above (the facts that defendant had just been arrested, had been injured in a car accident, and was under the influence of intoxicants), defendant's consent was not voluntary for the purposes of Article I, section 9. The trial court erred in denying defendant's motion to suppress on the basis that defendant voluntarily consented to the blood test.

Permalink 01:26:09 am, by fourth, 388 words, 1407 views   English (US)
Categories: General

W.D.N.C.: Misdemeanor arrest warrant permitted entry under Payton

Misdemeanor arrest warrant permitted entry into defendant’s home. Payton is not so limited. United States v. Hall, 2009 U.S. Dist. LEXIS 90378 (W.D. N.C. September 28, 2009):

It is noteworthy that the only case cited in support of the Defendant's interpretation of Payton is O'Rourke v. City of Norman, 875 F.2d 1465 (10th Cir. 1989), cert. denied 493 U.S. 918, 110 S.Ct. 280, 107 L.Ed.2d 260 (1989). O'Rourke involved the nighttime execution of a daytime bench warrant at a location which was known to be the residence of the emancipated suspect's parents, but which was not known to be her home. The case turned on the fact that the warrant was not authorized for execution at night, not on the nature of the underlying offense. LaFave, 2 Search & Seizure, § 4.7(b) n.31 (4th ed.). In citing this case, defense counsel ignored the body of law holding that entry into a residence based on a misdemeanor arrest warrant "has been followed in similar cases with near uniformity by the federal courts." Gooch, 506 F.3d at 1159 n.1. In fact, the Gooch court cited United States v. Ray, 199 F.Supp.2d 1104, 1112-13 (D.Kan. 2002), which followed Tenth Circuit precedent, Howard v. Dickerson, 34 F.3d 978, 981 (10th Cir. 1994), in which it was noted that "federal law require[s] a warrant before arresting an individual at home for a misdemeanor." Accord, United States v. Meindl, 83 F.Supp.2d 1207 (D.Kan. 1999) (forced entry into defendant's home to execute misdemeanor arrest warrant was proper). Indeed, the Defendant's objection to the Memorandum and Recommendation on this issue is limited to one sentence. The Court rejects the Defendant's argument and the objection is overruled.

“Notwithstanding SA Mayo's omissions, the information provided in his supporting affidavit does not surmount to knowingly or recklessly misleading the issuing magistrate” under Franks. United States v. Banks, 2009 U.S. Dist. LEXIS 90073 (N.D. N.Y. September 29, 2009).*

State and federal officers may have collective knowledge for PC for a vehicle search. United States v. Feliz, 657 F. Supp. 2d 364 (E.D. N.Y. 2009).

Parole officer fulfilled his obligation by searching defendant’s house after defendant’s arrest to be sure that he was not otherwise violating the law. United States v. Elsberry, 2007 U.S. Dist. LEXIS 98760 (W.D. N.Y. May 29, 2007).*

Nineteen minute stop was not unreasonable under the circumstances. United States v. Williams, 2009 U.S. Dist. LEXIS 90063 (M.D. Fla. September 14, 2009).*

10/03/09

Permalink 03:56:05 pm, by fourth, 466 words, 980 views   English (US)
Categories: General

OH implied consent statute does not violate Fourth Amendment

Ohio implied consent statute does not violate the Fourth or Fifth Amendment. State v. Hoover, 2009 Ohio 4993, 123 Ohio St.3d 418, 916 N.E.2d 1056 (2009):

[*P22] Hoover contends, however, that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure. However, Hoover has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. See Cunningham, 15 Ohio St.2d 121, 44 O.O.2d 119, 239 N.E.2d 40, paragraph two of the syllabus; Schmerber, 384 U.S. at 770-771, 86 S.Ct. 1826, 16 L.Ed.2d 908. Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution.

Traffic stop for leaving the vehicle's engine running was valid. Defendant's statement "No, I don't. You can go ahead and check" was consent. State v. Freeman, 2009 Ohio 5226, 2009 Ohio App. LEXIS 4418 (8th Dist. October 1, 2009).*

Limewire software connection to the Internet showed no reasonable expectation of privacy. State v. Thornton, 2009 Ohio 5125, 2009 Ohio App. LEXIS 4332 (10th Dist. September 29, 2009):

[*P12] Appellant knowingly exposed to the public the files found on Perry's computer and the IP address associated with that computer through the use of the Limewire program on the computer. Therefore, he had no reasonable expectation of privacy in that evidence. United States v. Ganoe (C.A.9, 2008), 538 F.3d 1117, 1127 (no legitimate expectation of privacy in files defendant made available to public using Limewire software); United States v. Borowy (D.Nev. 2008), 577 F.Supp.2d 1133, 1136 (same); United States v. Forrester (C.A.9, 2008), 512 F.3d 500, 510 (no reasonable expectation of privacy in IP address); United States v. Li (Mar. 20, 2008), S.D. Cal. No. 07 CR 2915 JM, 2008 U.S. Dist. LEXIS 22283, *15 (same). In that situation, Fourth Amendment protections are not implicated because a search does not occur. See Keith, citing State v. Sheppard (2001), 144 Ohio App.3d 135, 141, 759 N.E.2d 823.

. . .

[*P14] Assuming without deciding that appellant has standing to raise this argument, 3 federal courts addressing this matter have consistently held that the remedy for a violation of the ECPA is a civil action for damages, not suppression. 18 U.S.C. 2708; United States v. Perrine (C.A.10, 2008), 518 F.3d 1196, 1202; United States v. Beckett (S.D.Fla. 2008), 544 F.Supp.2d 1346,1350; United States v. Sherr (D. Md. 2005), 400 F.Supp.2d 843, 848; United States v. Kennedy (D.Kan. 2000), 81 F.Supp.2d 1103, 1110. Therefore, even if Time Warner's disclosure violated the ECPA, 4 that statutory violation would not provide appellant with a basis to suppress the subscriber information. Moreover, a customer does not have a reasonable expectation of privacy in subscriber information given to an internet service provider. Perrine at 1204; Sherr at 848.

Permalink 01:08:01 pm, by fourth, 511 words, 429 views   English (US)
Categories: General

NM: Pepperspraying was seizure, so flight from that was not governed by Hodari D.

Defendant was pepper sprayed before he tried to run, and he got a few steps and dropped drugs. His pepperspraying was a seizure, and it continued into his flight, so Hodari D. is distinguished. State v. Garcia, 2009 NMSC 46, 147 N.M. 134, 217 P.3d 1032 (2009):

[*22] First, we cannot agree that under the Fourth Amendment Defendant's seizure ended the moment the officer stopped spraying him with mace. The Hodari D. Court's hypothetical example of a discontinued seizure seems to contemplate something more than the limited motion that Defendant took away from the officer in the present case. 499 U.S. at 625. For example, in describing the type of action by a suspect that would discontinue his or her seizure, the Court used the terms "escape," "period of fugitivity," and "br[eak] away." Id. These words connote a complete, even extended, separation between the suspect and the officer that is lacking in the facts before us. After being pepper sprayed, Defendant only took several strides before he dropped the cocaine and was tackled. During this time, Defendant continued to be under the effects of the pepper spray as evidenced by the fact that he later had to be allowed to decontaminate. It seems irrational to us that the Fourth Amendment would parse into multiple seizures the separate moments of physical contact making up an officer's brief, forceful submission of a suspect. This being said, we must acknowledge that the United States Supreme Court has not explained what constitutes having "broken away" from an officer, and as such we cannot be certain that under the Fourth Amendment, Defendant was seized at the moment he disclosed the cocaine.

. . .

[*24] In the case at bar, where only several strides on Defendant's part intervened between the officer's pepper spraying of Defendant and the dropping of the cocaine, we do not believe the link to the illegal seizure was attenuated, if indeed that seizure had ended at all. Further, because the exclusionary rule is designed to deter unlawful police conduct, such as the unconstitutional application of physical force resulting in the discovery of evidence, we believe the policies of the fruit of the poisonous tree doctrine weigh heavily in favor of suppression. We note that other courts confronting similar situations have excluded evidence on this basis. See e.g., United States v. Wilson, 953 F.2d 116, 127 (4th Cir. 1991) (distinguishing Hodari D. and suppressing cocaine dropped by the defendant while fleeing from an unlawful seizure because the dropping occurred after the illegal seizure and was the "direct result" of the illegal seizure); United States v. Newman, 490 F.2d 993, 995 (10th Cir. 1974) (holding that marijuana that fell out of a truck as the defendants fled an illegal seizure was not abandoned because "[e]verything was triggered by the original illegal intrusion"); State v. Ingram, 1998 NMCA 177, PP 16-17, 126 N.M. 426, 970 P.2d 1151 (suppressing evidence abandoned while the defendant was fleeing from an illegal search because it was "a direct result" of the illegal search). Again, however, we must acknowledge that the statements in Hodari D. seem to be in conflict with our interpretation of Fourth Amendment case law.

Permalink 12:15:45 pm, by fourth, 373 words, 352 views   English (US)
Categories: General

Cal.2: Defendant's having a gun sticking from pocket in a relative's fenced yard was not possession of a weapon in a public place; detenion was without RS

A deputy detained defendant after observing him in the front yard of a single family home with a handgun protruding from his pants pocket. The only suggested suspected criminal activity was defendant's carrying of a loaded firearm in a public place. The court held that the state failed to establish that the fenced front yard was a public place. Therefore, an officer lacked a reasonable suspicion, and the detention violated the Fourth Amendment. The evidence was that defendant's brother resided at the house, and defendant was lawfully on the premises. The front yard was completely surrounded by wrought iron, wood, and wood-and-brick fencing that was four and one-half to five feet high. The only access to the front door was through the single gate in the fence. The area was not rendered public by visibility to the public or the fact that the gate was not locked when deputies entered. Further, the fact that gang members may have frequented the locale did not support a conclusion that the public could enter without challenge, given the documented territorial nature of criminal street gangs. People v. Strider, 177 Cal. App. 4th 1393, 100 Cal. Rptr. 3d 66 (2d Dist. 2009).

Search warrant for house would automatically permit search of a detached garage for the house, but here it was specifically included anyway. Thomas v. State, 300 Ga. App. 265, 684 S.E.2d 391 (2009).*

Defendant’s stop of his rental car was justified because the temporary tag in the back tinted window was not visible from behind the car. Wade v. State, 33 So. 3d 498 (Miss. App. 2009), rehearing denied by Wade v. State, 2010 Miss. App. LEXIS 211 (Miss. Ct. App., Apr. 27, 2010).*

The CI's statements and the officers' observations gave nexus between defendant's drug dealing and his premises to justify a search of the premises. Commonwealth v. Rodriguez, 75 Mass. App. Ct. 290, 913 N.E.2d 916 (2009):

The presence of packaged inventory has multiple significance. Inventory requires storage. A residence is a far more secure storage site than an automobile. Packaged inventory also indicates enterprise. An enterprise requires instrumentalities and generates records. They are far more likely to be located in a residence than in an automobile. The value and readily fungible nature of cocaine packaged for sale make it unlikely that Hind would store his inventory in his vehicle.

10/02/09

Permalink 09:00:49 pm, by fourth, 52 words, 398 views   English (US)
Categories: General

S.D.Tex.: Asleep on 350 lbs of marijuana as PC

In a case on Findlaw, two suspects were arrested in the Southern District of Texas near Brownsville TX by CBP agents who responded to a ground sensor and followed footprints in the desert and found them asleep with 350 lbs of marijuana. Dope Smugglers Caught Napping On 350 Lbs of Pot by Joel Zand.

Permalink 12:20:38 pm, by fourth, 392 words, 362 views   English (US)
Categories: General

E.D.Ark.: No constitutional right to have search warrant read before search

While state law required a search warrant to be served on the target of the search, leaving a copy on the coffee table in front of the handcuffed accused is sufficient. The Fourth Amendment does not require that the warrant be read to the handcuffed accused [it is doubtful state law did either]. Besides, this was not a sufficient ground to invoke the exclusionary rule [if failure to announce isn't, failure to read the warrant, a fortiori, isn't]. United States v. Porter, 654 F. Supp. 2d 938 (E.D. Ark. 2009).* (What about the absent owner? How would such a rule even be applied?)

The fact the officer was not going to give a ticket for speeding, although there was reason (76 in a 70), asking for papers and stuff did not make the stop otherwise unreasonable. The officer finally smelled marijuana coming from the car when he leaned in. While there was a contradiction in the officer’s testimony from his reports, it was not so material to undermine his credibility. United States v. Bohanon, 629 F. Supp. 2d 802 (E.D. Tenn. 2009).*

However, Patterson's testimony indicates he saw no reason to deploy his canine since he detected the odor of marijuana himself. As to whether the marijuana odor was that of burnt or raw marijuana, it is troubling that Patterson appeared to be attempting to conform his testimony during the suppression hearing to his misreading of his affidavit. However, he testified in both the state court proceeding and the suppression hearing that he smelled a marijuana odor coming from the Tahoe. In addition, in his affidavit he noted that he smelled an odor of marijuana. I CONCLUDE Patterson's inconsistent testimony regarding whether the marijuana odor was burnt or raw, while troubling, does not constitute such a material contradiction that it results in discrediting Patterson's testimony he detected an odor of marijuana. Therefore, upon consideration of all of the evidence, I credit Patterson's credible testimony he smelled an odor of marijuana in the Tahoe.

Although all the information about the CI was not in the affidavit for the search warrant, sufficient detail was. Besides, the good faith exception would save this warrant anyway. United States v. Morton, 2009 U.S. Dist. LEXIS 89820 (W.D. Tenn. September 29, 2009).*

Thirteen minute traffic stop that led to consent was not unreasonable. United States v. Williams, 2009 U.S. Dist. LEXIS 90051 (M.D. Fla. September 30, 2009).*

10/01/09

Permalink 04:37:50 pm, by fourth, 340 words, 628 views   English (US)
Categories: General

CA7: Conclusory allegation of egregious violation of Fourth Amendment rights insufficient to seek to make exclusionary rule apply to removal proceedings

A conclusory allegation of an egregious Fourth Amendment violation to get around Lopez-Mendoza that the exclusionary rule does not apply to removal proceedings doesn't cut it. Krasilych v. Holder, 2009 U.S. App. LEXIS 21342 (7th Cir. September 29, 2009):

But even assuming that the guidelines are enforceable and were not followed in Operation Durango, the BIA was still correct in approving the IJ's decision to deny Krasilych's request to exclude evidence because the exclusionary rule generally does not apply in removal proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984); Mireles v. Gonzales, 433 F.3d 965, 967 (7th Cir. 2006); Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002). In Lopez-Mendoza, the Court left open the possibility that the exclusionary rule may apply where there have been "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." 468 U.S. at 1050-51; see also Martinez-Camargo, 282 F.3d at 492. Hoping to fit into this exception, Krasilych blithely asserts that "Fourth Amendment violations" in Operation Durango were "widespread and egregious." What the Fourth Amendment, which prohibits unreasonable searches and seizures, has to do with Krasilych's involvement in Operation Durango escapes us, and he has not even come close to identifying an "egregious violation" of any other liberty.

CI's statement he saw cocaine in the defendant's possession within the last 72 hours and knows what cocaine looks like is sufficient for a SW to issue. United States v. Miller, 2009 U.S. Dist. LEXIS 89182 (N.D. Ill. September 28, 2009).*

Defendant was arrested in his underwear and t-shirt at the door of his hotel room. His request to get clothes was a consent for the police to reenter with him. United States v. Snard, 2009 U.S. Dist. LEXIS 89128 (E.D. Pa. September 28, 2009).*

A search warrant was executed for a stolen Caterpillar 246 Turbo skid loader and documents relating to it. The warrant permitted entry into the house for the records. United States v. Graham, 2009 U.S. Dist. LEXIS 89398 (N.D. Iowa September 28, 2009), adopted 2009 U.S. Dist. LEXIS 96239 (N.D. Iowa October 15, 2009).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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www.johnwesleyhall.com

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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."
—Me

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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