Archives for: November 2009


Permalink 04:49:07 pm, by fourth, 26 words, 380 views   English (US)
Categories: General

Cert denied in Virgina v. Rudolph

SCOTUS denied cert in Virginia v. Rudolph (pdf p. 4) today, listed here from SCOTUSBlog's "petitions to watch."

Prior post here on the Virgina Supreme Court opinion.

Permalink 08:52:28 am, by fourth, 178 words, 357 views   English (US)
Categories: General

M.D.Fla.: "Status quo" entry into defendant's home was supported by exigent circumstances

USMJ erroneously concluded that the “status quo” entry of the defendant’s house was unjustified by exigent circumstances under the totality of the circumstances. United States v. Jones, 2009 U.S. Dist. LEXIS 110239 (M.D. Fla. November 24, 2009).*

Under Oregon’s “but for” test, the state’s concession that the arrest was illegal put on it the burden of showing that there was no minimal link between the arrest and the statement. A Miranda warning is not a “universal solvent” to wash away the illegal arrest. Here, the state failed in its burden. State v. Robbins, 232 Ore. App. 236, 221 P.3d 801 (2009).*

The state concedes that the stop was too long and the consent was invalid. State v. Orcutt, 232 Ore. App. 268, 221 P.3d 835 (2009).*

The officer’s justification for stopping defendant on August 31st on a motorcycle was that he was suspected of eluding her “last winter” on an ATV. The trial court found the stop in a barber shop was without reasonable suspicion of wrongdoing, and it was supported by the evidence. State v. Massingill, 2009 Ohio 6221, 2009 Ohio App. LEXIS 5212 (8th Dist. November 25, 2009).*

Permalink 08:27:59 am, by fourth, 467 words, 460 views   English (US)
Categories: General

M.D.N.C.: Arrest outside house with exigency permitted protective sweep

A protective sweep under Buie can occur after an arrest outside if there is reason to believe that a danger lurks inside. United States v. Kilfoil, 2009 U.S. Dist. LEXIS 110290 (M.D. N.C. November 23, 2009)*:

Though not noted by the parties, it appears well-established in the majority of circuits that the protective sweep exception, as defined in Buie, justifies entry into a residence where an arrest is made outside, even in the absence of a warrant or probable cause. See, e.g., Wilson v. Morgan, 477 F.3d 326, 337-39 (6th Cir. 2007) (finding, in context of claim under 42 U.S.C. § 1983, that United States v. Colbert, 76 F.3d 773, 776-78 (6th Cir. 1996), justifies protective sweep of home interior where arrest made outside); United States v. Maldonado, 472 F.3d 388, 394-95 (5th Cir. 2006) (upholding protective sweep of house where arrest made in driveway); United States v. Paopao, 469 F.3d 760, 767 (9th Cir. 2006) (permitting protective sweep of apartment based on reasonable belief that at least one robber remained inside though arrest made outside); United States v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005) (noting that "an arrest that occurs just outside the home can pose an equally serious threat to arresting officer as one that occurs inside the home"); United States v. Cavely, 318 F.3d 987, 995-96 (10th Cir. 2003) (stating that, "[d]epending on the circumstances, the exigencies of a situation may make it reasonable for officers to enter a home without a warrant in order to conduct a protective sweep"); United States v. Henry, 48 F.3d 1282, 1284 (D.C. Cir. 1995) (upholding protective sweep inside home where arrest made outside); United States v. Oguns, 921 F.2d 442, 446-47 (2d Cir. 1990) (allowing protective sweep of apartment where officers could have reasonably believed that people inside heard them arresting defendant outside); United States v. Delgado, 903 F.2d 1495, 1502 (11th Cir. 1990) (upholding protective sweep inside warehouse where reasonable belief existed as to danger to agents outside).

Defendant was arrested on an arrest warrant and handcuffed outside his house. Officers asked him where his gun was, and he said he didn’t want anybody going in the house. They said they just wanted the gun, and they could go in and get it and there would be no search of the house. The defendant then consented to the search and it was found voluntary because the conversation was short and polite and the search was limited. United States v. Burke, 2009 U.S. Dist. LEXIS 110221 (E.D. N.Y. October 16, 2009).*

Defendant did not object to a consent search that escalated to removing seats and carpeting, and failure to object is a factor in consent [I don’t buy this anymore]. Once it was apparent to the officers that there was a hidden compartment, there was probable cause and it was not unreasonable for officers to break open the vehicle. United States v. Bugarin, 2009 U.S. Dist. LEXIS 109058 (D. Kan. November 23, 2009).*


Permalink 11:28:45 am, by fourth, 871 words, 1187 views   English (US)
Categories: General

Without rehearing, Comprehensive Drug Testing is going to SCOTUS

In the Ninth Circuit's controversial, from the government's standpoint, Comprehensive Drug Testing case, the Solicitor General's petition for real en banc rehearing is here and here. Anybody who is interested in computer search cases will find it quite interesting.

See news stories and blog postings here.

• Wired: Obama Wants Computer Privacy Ruling Overturned. [Not Obama, Obama's DOJ.]

• New American: Fourth Amendment Under Seige (Again)

• AP on Findlaw: Feds seek rehearing of baseball drug list ruling.

• Orin Kerr on Volokh Conspiracy: After quoting the Solicitor General's introduction,

A few quick thoughts:

1) I don’t think I have ever seen a brief signed by the SG, Deputy SG, AAG, DAAG, and all of the United States Attorneys in a Circuit. If you’re presently a DOJ official and your name isn’t on the brief, you are probably feeling left out. [When the SG calls, you sign on.]

2) I thought the brief was excellent on the whole, although, as you might guess given my previous writing, I was not entirely persuaded by the harms of eliminating plain view for digital evidence. For example, in the case mentioned on pages 6–7 involving the men who had filmed themselves raping a child, the warrant could just be drafted broadly enough to include any images of child pornography and any evidence of unlawful child sex offenses. That way, evidence of other victims would be included within the scope of the warrant and there would be no need to rely on “plain view.” But that’s a quibble; I thought the brief was well done.

3) Given that all the parties to the case agree that the “guidance” sections were unnecessary, the sensible course would be for the Ninth Circuit to amend the opinion and take the “guidance” sections out. That is, keep the sections that were briefed and responded to the case, and take out the stuff with all the prospective rules beyond this case. Do that and everybody goes home happy, without the time and effort of going super-en-banc or the prospect of Supreme Court reversal. That seems like the sensible course to me, at least.

I discern that this petition was largely written by Deputy Solicitor General Dreeben, and it is well written, as always. It is written like a cert petition.

I agree with Mr. Kerr that part of the brief is a "the sky is falling" argument, and the example the government gives, the reference to the child sexual abusers, is over the top. I just cannot believe that the government did not press forward with that search warrant because it is so easily alleged in the affidavit and shown in the warrant exactly what they wanted. If I were a cynic, I would say that the government manipulated these facts just to create for itself an argument that did not have to exist, almost like they planned to use the example in Washington for a petition for rehearing. Never in the history of the Fourth Amendment has a federal agent been so allegedly solicitous of the rights of an accused. They had the state officers willing to assist, so they create a strawman argument. [Update: A blogger Sunday night referred to this strawman as a "Bush-era argument."]

Nevertheless, this case has "cert granted" written all over it if the government asks.

First, SCOTUS has never considered a computer search case, although plenty have tried. The government, however, has never been the petitioner, because it almost always wins or can live with the result it got below. It's been 33 years since Andreson v. Maryland, 427 U.S. 463, 478-84 (1976), and the scope of records searches and plain view within the records searches. Personal computers did not exist in wide use when Andresen was decided, and business computers were large and bulky and were not the vast repositories of personal information that they have become in the last 30 years.

Second, how will the good faith exception enter into a CDT-type particularity problem? The good faith exception usually does not save the part of the search that became a "general search." What about the scope of plain view in a hard drive on a computer? I can see changes potentially coming, and they are not for the benefit of the citizen. What if the Court decides that the good faith exception should be modified like the exclusionary rule? to which I turn:

Third, how will the new impetus to gut the exclusionary rule, per Hudson and Herring, play into this? The search warrant was good as far as it goes; so what happens when more is found? Should the exclusionary rule be applied when the search warrant was well-intentioned and limited but more was found? This situation does not fit the "logic" of Hudson, but that does not mean that everything cannot change, as will the "logic," with a few strokes of the Chief Justice's pen.

I hope that the Ninth Circuit just strikes, as Kerr suggests, the prophylactic rule the Ninth Circuit created, because that is the primary target of the government's petition for full rehearing as a violation of the Art. III "case or controversy" requirement. Then, the case is no longer cert-worthy, and we don't have to worry about what will happen if SCOTUS gets it.

Permalink 11:27:10 am, by fourth, 627 words, 420 views   English (US)
Categories: General

M.D.Fla.: PC and exigent circumstances required for entry into home; three justice opinion in Segura rejected

The government must show PC and exigent circumstances for an entry into the home. The three justice opinion in Segura urged by the government is not followed because it makes no sense and is now often criticized. United States v. Jones, 2009 U.S. Dist. LEXIS 110251 (M.D. Fla. October 8, 2009):

To support its argument that it was not necessary to establish exigent circumstances, the Government cites to Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L. Ed. 2d 599 (1983). The Government claims Segura distinguished between a search of a dwelling and a seizure of a dwelling to preserve the status quo and held that "securing a dwelling on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents." (Doc. 67, p.15). Interestingly, the portion of the Segura decision cited by the Government is in a section of the opinion joined in by only two Justices. Additionally, this Court notes that the portion of Segura relied upon by the Government has been sharply criticized. See United States v. Wright, 696 F.Supp. 164, 170, n.8 (E.D. Va. 1988) (citing Dressler, A Lesson in Incaution, Overwork, and Fatigue: The Judicial Miscraftsmanship of Segura v. United States, 26 Wm. & Mary L.Rev. 375, 422 (1985) ("Segura is a disaster as a written opinion"); Note, The Securing of the Premises Exception: A Search for the Proper Balance, 38 Vand.L.Rev. 1589 (1985) ("The most distressing feature of Segura is that the Chief Justice has created an exception [to the warrant requirement] without identifying any corresponding need")); see also 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.5(c), pp. 417-424 (4th ed. 2004).

In Search and Seizure, Professor LaFave suggested that the Segura Court did not really approve of warrantless entry absent exigent circumstances. Id. at 419. He noted that the majority "parse[d] the police conduct in Segura into its 'seizure' and 'search' components, and with respect to the 'seizure' part [was] not really taking into account the fact of entry." Id. To support this proposition, LaFave quoted the following passage in Segura:

Securing of the premises from within, however, was no more an interference with the petitioners' possessory interests in the contents of the apartment than a perimeter "stakeout." In other words, the initial entry-legal or not-does not affect the reasonableness of the seizure. Under either method-entry and securing from within or a perimeter stakeout-agents control the apartment pending arrival of the warrant; both an internal securing and a perimeter stakeout interfere to the same extent with the possessory interests of the owners.

Id. at 419-20 (quoting Segura, 468 U.S. at 811, 104 S.Ct. at 3389). LaFave noted that the Segura Court "only said that the seizure aspect (which, were it to exist in isolation, would mean maintaining control without entry) is permissible on probable cause even if there are not exigent circumstances." Id. at 420. LaFave elaborated that the four dissenters appeared to agree on that point as they stated they assumed "impoundment would be permissible even absent exigent circumstances if it occurs 'from the outside' -- when the authorities merely seal off premises pending the issuance of a warrant but do not enter." Id. (quoting Segura, 468 U.S. at 824, n. 15, 104 S.Ct. at 3396).

This Court is persuaded by the analysis provided by LaFave. Moreover, given the criticism of Segura, and the fact that this Court was unable to locate (and the Government did not cite) any Eleventh Circuit cases adopting the holding cited by the Government, the Court finds the Government must show both probable cause and exigent circumstances existed at the time the officers entered the homes at 228 and 230 San Jose. As such, the Court must next determine whether exigent circumstances supported the officers' decision to enter the two homes.

Permalink 11:24:22 am, by fourth, 206 words, 458 views   English (US)
Categories: General

CFC: No jurisdiction over a Fourth Amendment claim

The Court of Federal Claims lacks jurisdiction over Bivens claims against individual officers. [The Court of Federal Claims has no jurisdiction over what happens in the criminal justice system.] Taylor v. United States, 2008 U.S. Claims LEXIS 462 (October 29, 2008):

Nothing in plaintiffs' complaint raises the specter of an unreasonable search and seizure by defendant. More fundamentally, for purposes of this court's jurisdictional analysis, the Fourth Amendment is not a money-mandating constitutional provision. See, e.g., Fry v. United States, 72 Fed. Cl. 500, 507 (2006) ("As a matter of law, the Fourth Amendment's prohibition on unreasonable search and seizure ... [is] not money-mandating."); Hanford v. United States, 63 Fed. Cl. 111, 119 (2004) ("'[V]iolations of 4th [A]mendment search and seizure' are 'excluded' from the jurisdiction of this court because the Fourth Amendment is not a money-mandating constitutional provision." (quoting Stephenson v. United States, 58 Fed. Cl. 186, 192 (2003))). Furthermore, although the Supreme Court held in Bivens "that a party may, under certain circumstances, bring an action for violations of constitutional rights against Government officials in their individual capacities[,] ... [t]he Tucker Act grants the Court of Federal Claims jurisdiction over suits against the United States, not against individual federal officers." Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997). The court, therefore, lacks jurisdiction to entertain these claims.

Permalink 11:20:36 am, by fourth, 339 words, 520 views   English (US)
Categories: General

E.D.Va.: Gant not sufficient reason to permit withdrawal of unconditional plea

The fact Gant was decided after defendant unconditionally pled guilty did not form a basis for allowing him to withdraw his plea. United States v. Darcus, 2009 U.S. Dist. LEXIS 109950 (E.D. Va. November 24, 2009)*:

Darcus argues that, wholly apart from the Moore factors, the decision in Gant provides a basis on which he should be permitted to withdraw his guilty plea. Generally, courts have held that the decision in Gant does not provide a fair and just reason for withdrawal of a guilty plea. See Monroe, 2009 U.S. Dist. LEXIS 51389, 2009 WL 1749374, at *2 ("[T]he Supreme Court's decision in Gant has not been held to constitute 'a fair and just reasons for requesting the withdrawal' of a guilty plea."); Mays, 2009 U.S. Dist. LEXIS 21165, 2009 WL 536912, at * 2 ("In this Court's view, [Gant] does not constitute a fair and just reason to withdraw the plea."). Rather, Gant may only provide a fair and just reason where the Government concedes that it does, or the guilty plea was conditional. See United States v. Megginson, 2009 U.S. App. LEXIS 19296, 2009 WL 2461856 (4th Cir. Aug. 12, 2009) (allowing the suppression of evidence based on the retroactive application of Gant when Darcus [sic] entered a conditional plea); United States v. Williams, 2009 U.S. Dist. LEXIS 48077, 2009 WL 1607624, at *1 (E.D. Mich. June 2, 2009) (allowing withdrawal when the Government conceded that it was fair and just).

Darcus' plea of guilty was not conditioned on his ability to challenge the denial of his motions to suppress. Nor has the government conceded that Darcus should be allowed to withdraw his guilty plea. As a result, Darcus' argument that the change in law alone should allow him to withdraw his guilty plea does weigh in favor of withdrawal.

Defendant was apparently involved in a hand-to-hand drug deal where he was sitting in his car at gas pumps in a high crime area but buying no gas. When the officer frisked him and no gun was found, the reasonable suspicion of wrongdoing was still not dispelled under the facts. Hicks v. State, 189 Md. App. 112, 984 A.2d 246 (2009).*


Permalink 09:18:51 am, by fourth, 179 words, 410 views   English (US)
Categories: General

DC: Handing over pill bottle when defendant was asked if she had drugs was implicit consent to search it

When asked whether defendant had any “guns, drugs, or narcotics” she handed over a pill bottle. That was implicit permission to search it. Brown v. United States, 2009 D.C. App. LEXIS 600 (November 25, 2009).*

Defense counsel filed an Anders brief, and defendant claimed in his brief that defense counsel was ineffective for not challenging the search warrant. While that was not the time nor place to first challenge the search warrant on that ground, it was apparent from the record that the warrant was valid. State v. Johnson, 28 So. 3d 1125 (La. App. 5th Cir. 2009).*

The search of defendant’s car was valid as an inventory and search incident was not an issue. On appeal, defendant sought to expand his argument that the inventory did not follow standardized procedures, but that argument was not made below and could not be made now. State v. Lopez, 2009 NMCA 127, 223 P.3d 361 (2009), certiorari denied, State v. Lopez, 224 P.3d 1257 (N.M., Oct. 6, 2009).*

A search warrant for drugs permitted a search of defendant’s purse when she was living there. State v. Barbosa-Quinones, 2009 Iowa App. LEXIS 1562 (November 25, 2009).*

Permalink 08:54:01 am, by fourth, 495 words, 464 views   English (US)
Categories: General

CA4: To "follow the money" in a complex fraud case, a broad SW for records is required

In a complex mail and wire fraud and securities investigation, the search warrant for a large volume of records was not overbroad. It necessarily had to be to "follow the money." United States v. Phillips, 588 F.3d 218 (4th Cir. 2009):

Indeed, especially in cases such as this one--involving complex crime schemes, with interwoven frauds -- courts have routinely upheld the seizure of items described under a warrant's broad and inclusive language. See, e.g., United States v. Jacob, 657 F.2d 49, 52 (4th Cir. 1981). For example, in Andresen v. Maryland, the Supreme Court upheld the seizure of an extensive array of documents under a warrant that authorized the seizure of items "together with other fruits, instrumentalities and evidence of crime at this [time] unknown." 427 U.S. 463, 479, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). This circuit has similarly allowed the seizure of a "broad range of things" on the basis of language permitting officers to seize "fruits, evidence and instrumentalities of false claims submissions" and items "including, but not limited to" business records. Srivastava, 540 F.3d at 280, 289. The warrant in the case at bar bears striking similarities to those upheld in the aforementioned precedent.

The rationale for these holdings is straightforward. In cases of this sort, investigators must "follow the money" to gradually unravel the lengthy paper trail left by a defendant's illegal operations. See Srivastava, 540 F.3d at 291-92. As the Supreme Court explained, complex fraud cases often require investigators to assemble a "jigsaw puzzle" by piecing together "many bits of evidence" that, "taken singly, would show comparatively little." Andresen, 427 U.S. at 480-81, n. 10. For "in the context of a fraud investigation, the relevant evidence will in many instances be fragmentary, discovered in bits and pieces, and thus difficult to either identify or secure. Standing alone, a particular document may appear innocuous or entirely innocent, and yet be an important piece of the jigsaw puzzle that investigators must assemble." Srivastava, 540 F.3d at 291. In choosing to uphold contested seizures pursuant to inclusive language, courts have insisted that the "complexity of an illegal scheme may not be used as a shield to avoid detection." Andresen, 427 U.S. at 480-81, n.10; see also Srivastava, 540 F.3d at 291.

We thus decline to allow Phillips to create a safe harbor from the complexity of his schemes. His crimes were multiple and intricate. Phillips perpetrated his crimes in-person, by U.S. mail, by telephone, and on the Internet. He lied about his name, income, and social security number; he used a fake driver's license; he ran up costly bills with fraudulent credit cards that he never paid off; he funded a gambling habit with a stolen identity; and he wrote countless bad checks. To investigate and prosecute crimes of this nature, the government may need a diverse and extensive set of documents at its disposal. The language of the warrant anticipates that very possibility. The warrant thus sufficiently authorized the seizure of the contested evidence here, even if that evidence was not specifically listed and meticulously described.

Permalink 08:48:24 am, by fourth, 513 words, 372 views   English (US)
Categories: General

N.D.N.Y.: USPO did not violate separation of powers when it reported defendant's violation of supervised release that led to a new indictment

USPO did not violate is statutory authority or separation of powers in first investigating defendant's admissions to his mental health counselor that he was viewing child pornography and then assisting USAO in the case. United States v. Jennings, 2009 U.S. Dist. LEXIS 109025 (N.D. N.Y. November 23, 2009):

For similar reasons, the Court also finds that the USPO did not exceed its constitutional authority. Defendant contends that prosecuting crimes is within the sole province of the executive branch, that it is outside the scope of the judiciary to institute new criminal proceedings, and that the instant matter blurs the roles of each branch because "if the probationer feared that information candidly shared with Probation was going to form the basis of a separate criminal prosecution, the probationer would have no incentive to honestly participate in his own recovery ... [and] limiting criminal investigations and the initiation of criminal proceedings to the executive assures that the constitutional rights of a probationer ... are guarded through the well-established rules of criminal procedure ...."

. . .

The USPO's statutory duties of keeping informed of whether a probationer is complying with the conditions of release necessarily overlap some law enforcement duties. See Scott, 118 S. Ct. at 2025. That the results of the USPO's duties may have dual uses (i.e. forming the basis for a revocation of supervised release and the initiation of new criminal charges) does not run afoul of the separation of powers. In this case, the undisputed evidence is that the USAO was involved in the criminal investigation from an early stage. The record evidence is that the USAO: (1) conferred with the USPO concerning obtaining a search warrant; (2) prepared the warrant application based on information obtained from the USPO; (3) presented the warrant to this Court; (4) made the decision to file new criminal charges; (5) made the decision as to which criminal charges to pursue, see Gov't Mem. of Law at 19; (6) prepared the felony complaint, see Lovric Aff. at P 23; (7) filed the criminal charges; (8) presented the matter to a grand jury; and (9) continues to prosecute the charges against Defendant. The probation officer has no role in how the information submitted to the USAO is used by it. See United States v. Hook, 471 F.3d 766, 777 (7th Cir. 2006). Inasmuch as the Executive Branch has been involved from an early stage and has made the critical determinations whether, and how, to proceed with new criminal charges against Defendant, the Court finds no encroachment that violated the separation of powers doctrine. Nothing the USPO did interfered with the Executive Branch's ability to make law enforcement decisions or perform law enforcement functions. See Sczubelek, 402 F.3d at 189.

For a COA in a § 2254 case, reasonable jurists could not find the district court’s decision remotely wrong that “video pornography” implicitly includes only commercially made and not defendant’s homemade. Satterlee v. Addison, 354 Fed. Appx. 292 (10th Cir. 2009) (unpublished).*

Defendant’s guilty plea was unconditional, but the government concedes that he wanted to reserve the right to appeal, so the plea is vacated and remanded for a do over. United States v. Ochoa, 2009 U.S. App. LEXIS 25768 (11th Cir. November 24, 2009) (unpublished).*


Permalink 08:47:03 am, by fourth, 447 words, 682 views   English (US)
Categories: General

N.D.Ohio: Reasonable belief person named in arrest warrant is required for entry, but here it was lacking

Officers lacked a reasonable belief under Payton that the subject of an arrest was at the address they felt he should be. United States v. Jett, 2009 U.S. Dist. LEXIS 108673 (N.D. Ohio November 20, 2009):

Payton and the widely-applied "reasonable belief" standard do not require officers to be certain that the subject of an arrest warrant resides in the home to be searched. Moreover, officers need not be correct as to the suspect's residence in the home. Valdez v. McPheters, 172 F.3d 1220, 1224-25 (10th Cir. 1999). Except for the Ninth Circuit, every circuit to address the issue has held that all Payton requires is a reasonable belief that the suspect resided in the home and could be found there at the time of the search. See Id. (collecting cases).

The information known to officers at the time of the search in the instant matter, however, was not sufficient to support a reasonable belief as to either fact. Despite their efforts, officers were never able to confirm that Tunanidas lived at 1334 Republic Avenue at the time of the search. The home was did not belong to Tunanidas. (Tr. at 9). Officer Giovanni testified that, although the home was listed on ChoicePoint as an address for Tunanidas, such listing does not necessarily indicate that Tunanidas had ever actually lived at that address. (Tr. at 6-7). On several occasions, officers received no response at the address when they attempted to confirm Tunanidas' residence there. (Tr. at 9). When shown a photo of Tunanidas, a neighbor could not positively identify him as a resident in the home. (Tr. at 9). In short, nothing besides the ChoicePoint listing and two 17-month-old arrest warrants indicated that Tunanidas lived at 1334 Republic Avenue.

District Court applied the wrong authority (Terry v. Ohio) to conclude that the seizure and search of plaintiffs in their apartment was valid. Applying the correct case (Maryland v. Garrison), the court concludes that the seizure and search were justified and summary judgment was properly granted for the officers. Harman v. Pollock, 586 F.3d 1254 (10th Cir. 2009),* prior appeal Harman v. Pollock, 446 F.3d 1069 (10th Cir. 2006).

Record supports district court’s finding of consent. United States v. Molina-Garcia, 353 Fed. Appx. 277 (11th Cir. 2009) (unpublished).*

“When an owner of a house leases it to someone, he no longer has an expectation of privacy in that house which society is prepared to recognize as legitimate. See, Miller v. Kunze, 865 F.2d 259, 1988 WL 138916 (6th Cir. 1988). Thus, Wards' leasing of the property to Barnett, either alone or in conjunction with Barnett's subletting of the property to Gamino-Villa and Vizcarra-Lopez, stripped him of any standing to contest the search of 750 Georgia Street.” United States v. Wards, 2009 U.S. Dist. LEXIS 107754 (E.D. Tenn. October 28, 2009).*

Permalink 08:26:23 am, by fourth, 324 words, 467 views   English (US)
Categories: General

S.D.Ga.: Use of an ICE summons for cell records which resulted in a SW was not unreasonable

The use of a Customs summons to gather records and information which was later used for a search warrant did not violate the Fourth Amendment. Defendant had no privacy interest in his records as a mere cellphone subscriber under Smith v. Maryland. United States v. Cray, 673 F. Supp. 2d 1368 (S.D. Ga. 2009).*

“He contends that the gun and cap were fruits of an illegal search, or perhaps more accurately, fruits of an illegal seizure. In either case, however, the Court concludes that the evidence was lawfully discovered. Under California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), the police did not need reasonable suspicion to pursue the fleeing Watkins. Only when Watkins was ‘seized,’ that is, when Watkins submitted to the officers' show of authority, was reasonable suspicion required. By that time, Watkins's actions gave the officers sufficient suspicion to seize him as an initial matter, and post-seizure, Watkins' words -- ‘I got weed’ -- gave the officers probable cause to arrest him. Incident to the lawful arrest, the officers' subsequent search of Watkins' backpack was proper, and therefore so too was the ultimate discovery of the evidence. Accordingly, the Defendant's Motion to Suppress (document # 11) is DENIED.” United States v. Watkins, 2009 U.S. Dist. LEXIS 109406 (D. Mass. November 10, 2009).*

In a child porn case, information that was over four years old coupled with purchases only seven months before the SW was sought were not stale. It is the nature of possession of child pornography. Describing the website defendant visited as a “known child pornography site” was not inappropriate or conclusory, even though the website had only a small percentage of child pornography, compared to the whole. United States v. Roller, 2009 U.S. Dist. LEXIS 109633 (N.D. Cal. November 6, 2009).*

The court concludes, on the credibility of the witnesses that a search incident did not occur before the dog alerted on the car. United States v. Sharp, 2009 U.S. Dist. LEXIS 109717 (E.D. Tenn. October 21, 2009).*

Permalink 07:23:07 am, by fourth, 390 words, 320 views   English (US)
Categories: General

TN: Finding warrant for passenger as a violent wanted criminal justified extending stop

There was PC for the stop of defendant’s vehicle, and the continued detention because the passenger was a wanted violent criminal. That is a compelling public interest. State v. Grogger, 2009 Tenn. Crim. App. LEXIS 937 (November 17, 2009) (passenger’s case: State v. Johnson, 2009 Tenn. Crim. App. LEXIS 870 (Tenn. Crim. App. October 15, 2009) (PC for the stop)):

It is hard to fathom a more compelling public interest than securing the arrest of people wanted for violent crimes. Taylor, 41 P.3d at 688. Probable cause to arrest Johnson "constituted an objectively measurable reason for stopping Defendant's vehicle, and thus adequately circumscribed the 'standardless and unconstrained discretion ... of the official in the field' with which Prouse was so concerned." Id. (citing Prouse, 440 U.S. at 661). In accordance with these principles, we conclude that, because the stop of the vehicle was supported by probable to cause to arrest Johnson, the Defendant's Fourth Amendment rights were not violated, and he was not improperly seized by the car stop. See also id. (citations omitted).

Defendant was a casual visitor at the house of another, and the house was the subject of a protective sweep for weapons from a “multi-defendant violent criminal act.” The protective search was valid. State v. Akins, 2009 Tenn. Crim. App. LEXIS 944 (November 18, 2009)

The protective search was valid here because the defendant had been part of a multi-defendant, violent criminal act that resulted in the shooting death of the victim. For the protection of the arresting officers, it is reasonable that they would search the defendant's room for other conspirators. The detective who conducted the sweep specifically testified that he was concerned that someone might be hiding in the closet. During the protective sweep, the officers discovered the gun in plain view. Based on the record, the defendant has failed to demonstrate that the evidence preponderates against the trial court's findings that a valid search occurred or that the trial court erred in failing to suppress the gun as evidence.

Request for a consent to search a car was general, as was defendant’s grant of consent: “go ahead.” Therefore, the search of the glove compartment was reasonable. State v. Baker, 232 Ore. App. 112, 221 P.3d 749 (2009).*

Defendant was stopped on a bicycle for not having a light, and the officer violated the state constitution by asking whether he was on probation. State v. Montoya, 232 Ore. App. 278, 221 P.3d 833 (2009).*


Permalink 08:30:43 am, by fourth, 376 words, 500 views   English (US)
Categories: General

MA: Uncorroborated 911 call could not justify stop where state failed to show reasonable suspicion

The state failed to show that the stop here was based on reasonable suspicion from an anonymous 911 call of a man with a gun. The state was obviously on notice that a 911 call was the subject of the motion to suppress. After all, defendant's stop was based on a 911 call, and defendant referred to it in his affidavit in support of the motion to suppress. Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 917 N.E.2d 231 (2009)*:

We do not minimize the potential seriousness of a report such as was present here. Nor do we dispute that the investigating officer acted reasonably in relation to the information supplied to him via the police radio broadcast. We recognize that "[w]hen a tip ... concerns the possession of a firearm, it deserves the immediate attention of law enforcement officials." Commonwealth v. Stoute, 422 Mass. at 790. Having received a report of an armed man, it would have been poor police work had the officer here left the scene without making any inquiries. However, the seriousness of the report received by the officer on the scene does not relieve the Commonwealth of the burden of establishing the veracity of that report and the constitutional underpinning for the officer's actions at the suppression hearing. This the Commonwealth failed to do.

In sum, the judge erred in determining that this stop and frisk was based on reasonable suspicion. The order denying the defendant's motion to suppress is vacated and an order shall enter allowing that motion. The judgments of conviction are reversed.

Officers were justified in pulling a weapon on defendant when he was stopped for overtinted windows because of his furtive movement of his hand to his back. Getting out of the car was "unusual" [and argued by the prosecutor at trial as evidence of guilt]. Cocaine was seen in plain view in the car. Hill v. State, 303 S.W.3d 863 (Tex. App.—Ft. Worth 2009).* [Note: When I was in college, I was ordered out of the car when I was stopped. So what's the big deal? SOP has changed?]

The officer was not per se precluded from asking defendant for consent during a traffic stop while it was still going on and had not been extended. State v. Hogans, 301 Ga. App. 261, 687 S.E.2d 230 (2009).*

Permalink 07:55:36 am, by fourth, 253 words, 463 views   English (US)
Categories: General

Fourth Amendment news

Google searching: Google Scholar

Google Scholar Beta to use Google for some legal research is now available. I included a link on the right margin.

See this article in Above the Law.

Article on the Exclusionary Rule

Excluding Illegally-Obtained Evidence and the Doctrine of Double Effect, by Sherry F. Colb.

"All Persons" search warrant

On the UNC School of Government Blog North Carolina Criminal Law, Search Warrants for “All Persons on the Premises”

Only the drug dog was apparently trained

Only in Arkansas: A convicted felon with a drug dog business was helping Mayflower AR police and carrying a sidearm with the permission of the Chief. On Law and Baseball see Traffic Stop: Fake Cop; Fake Dog. The Chief was suspended, and likely under investigation for being an accessory to both a FIPF charge and impersonating an officer. From the Arkansas Democrat-Gazette article linked above:

Sgt. Robert Alcon, Mayflower’s acting police chief, said Tuesday that the sheriff’s office “is conducting afull investigation into what happened.”

“The chief is kind of the focus of that investigation,” Alcon added.

But Alcon said, “in no way, shape or fashion was he [Brinkley] ever employed by the Mayflower Police Department. He was an independent contractor. He and the chief had some arrangement to use his services” for dogs in narcotics cases. “Things got a little out of control.”

Alcon declined to be more specific.

Mayflower, a town of about 2,230 residents, has five full-time police officers, including Shaw, and two part-time ones.

The Chief is toast.


Permalink 06:40:08 am, by fourth, 253 words, 376 views   English (US)
Categories: General

CA11: Defendant's showing up for a drug deal arranged with a CI was PC for search of his car

There was PC to search defendant’s car after he brokered a drug deal during a telephone call with the CI which would occur at a specific time and place. His showing up as expected was PC. The claim that the CI was incredible as a matter of law was meritless. United States v. Allen, 353 Fed. Appx. 352 (11th Cir. 2009) (unpublished)*:

As applied here, the district court did not err by denying Smith's motion to suppress drug evidence seized during a search of his car because police officers had probable cause to believe that Smith's car contained cocaine base that Smith intended to sell to a CS. During the suppression hearing, a government agent testified that on August 2, 2006, the CS, in a telephone conversation, brokered a transaction with Smith in which Smith agreed to sell the CS cocaine base at the Hwy. 17/State Rd. 100 gas station. Thus, when Smith subsequently showed up at the Hwy. 17/State Rd. 100 gas station, the investigators could have reasonably believed that there was a fair probability that Smith's vehicle contained cocaine base that he intended to sell to the CS. This is especially true given that, prior to this date, Smith had twice sold cocaine base to the CS and law enforcement officers in controlled transactions.

Defense counsel was not ineffective for not challenging defendant’s trash search because it was lawful under Greenwood since it was at the curb and it was a regular trash collection day. Zimmerman v. Cason, 354 Fed. Appx. 228, 2009 FED App. 0747N (6th Cir. 2009) (unpublished).*

Permalink 06:18:49 am, by fourth, 283 words, 428 views   English (US)
Categories: General

M.D.Pa.: Defendant lacked standing to challenge search of apartment he visited but had standing as to his own computer he brought with him

Defendant lacked standing to challenge the search of the apartment he was in because he had no connection to it. However, he could still challenge the search of his computer that was found there, which the government conceded. United States v. Scott, 673 F. Supp. 2d 331 (M.D. Pa. 2009):

Although Scott lacks standing to challenge the seizure of property from the Rawleigh Street apartment, he is not foreclosed from contesting the subsequent search of his Dell 1501 laptop computer by the Cumberland County Forensics Unit. Scott clearly possessed a reasonable expectation of privacy in the contents of what the government acknowledges is his personal property. Furthermore, the government concedes that it did not obtain a warrant to search the contents of the computer, and offers no justification for not doing so. Perhaps as a consequence of this oversight, the government does not contest Scott's motion to suppress the fruits of the laptop computer search. (See Doc. 194 at 14.) Accordingly, the contents of the computer will be suppressed.

A power line easement was not a part of the curtilage under Dunn. [Rather than simply find it was not, the parties tried this issue and the court made detailed findings.] United States v. Rey, 663 F. Supp. 2d 1086 (D. N.M. 2009).*

The presence of a shotgun carried into the house in a shots fired call justified the entry under the emergency doctrine. The search for the gun was also justified as a protective sweep. United States v. Parrott, 2009 U.S. Dist. LEXIS 109002 (E.D. Pa. November 20, 2009).*

Defendant tossed his gun while fleeing, and this was like Hodari D. and there was no seizure because of his flight. United States v. Grant, 2009 U.S. Dist. LEXIS 108874 (E.D. Pa. November 19, 2009).*

Permalink 06:05:35 am, by fourth, 486 words, 347 views   English (US)
Categories: General

M.D.Fla.: SW not defective where it referred to data and not the computer itself

The search warrant for defendant’s property did not specifically say to seize computers, but it sufficiently referred to computer related data and stuff that it was more than reasonable to conclude under the good faith exception that computers were included. United States v. Smith, 2009 U.S. Dist. LEXIS 108911 (M.D. Fla. November 5, 2009) (USMJ's R&R):

4) Data records related to the above computer related items, whether stored on paper (including computer printouts), on magnetic media such as tapes, cassettes, disk or memory devices such as optical disks, electronic address books, or any other storage media.
5) Any documents or other papers which contain set or sets or numbers or characters which may represent access codes or passwords for the computer, stored computer records, any on-line services, or other long distance carriers, and/or authorized credit agencies.
6) Computer printouts
7) Back-up copies of data and programs on floppy diskettes and other storage media. (Because computer stored data is so vulnerable, most computer users keep back-ups so if data is erased or deleted from the system itself, it may be recoverable on the back-up copies).
8) Data contained on all storage devices, including, but not limited to graphic and text files.

. . .

However, the list for the items to be searched contains many references to items relating to and found within computers including but not limited to storage devices for graphic and text tiles, data records relating to a computer, magnetic media, cassettes, disk or memory devices, and backup files. It was reasonable for the officers to seize the computers based upon the items listed in the Search Warrant. By seizing the computers the officers were within the terms of the search warrant and affidavit and were not conducting a general search.

The District Court adopted the R&R, United States v. Smith, 2009 U.S. Dist. LEXIS 108910 (M.D. Fla. November 19, 2009), adding:

The Court rejects defendant's argument (Doc. # 46, p. 2) that the state Search Warrant had to comply with the federal definition of computer in 18 U.S.C. § 1030(e). The Court also rejects defendant's argument (Doc. # 46, pp. 2-4) that allowing seizure of the computers as an authorized item would mean that the February 24, 2009 search warrant was unnecessary. A law enforcement officer's authority to possess an object is distinct from his or her authority to examine its contents. E.g., Walter v. United States, 447 U.S. 649 (1980); United States v. Jacobsen, 466 U.S. 109 (1984); United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009). The second search warrant may or may not have been necessary, but its issuance does not detract from the validity of the first search warrant.

The Court agrees with the Report and Recommendation's alternative finding (Doc. # 41, pp. 11-12) that the good faith exception to the exclusionary rule, as articulated in United States v. Leon, 468 U.S. 897 (1984), is satisfied in this case. The good faith exception applies to this type of issue, Travers, 233 F.3d at 1330, and the facts support its application to this case.

Permalink 04:51:18 am, by fourth, 46 words, 435 views   English (US)
Categories: General

Government seeks CDT rehearing

Government seeks full 27 judge rehearing in United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc), posted here, according to the venerable legal newspaper, USAToday. See the Washington Examiner, too.

Obviously, this case is going up since the Solicitor General filed the petition.


Permalink 04:14:37 am, by fourth, 68 words, 653 views   English (US)
Categories: General

Fourth Amendment news

Also in the Times

Right and Left Join to Take On U.S. Over Criminal Justice on the joining of forces against overcriminalization.

Copying as a seizure

On Privacy Digest is Copying as a Search and Seizure discussing a 2001 case where copying data was not an interference with possessory rights so it was not a seizure. Copying papers would be a "search," wouldn't it? A search is looking.


Permalink 06:40:00 am, by fourth, 23 words, 384 views   English (US)
Categories: General

Fourth Amendment News

Editorial yesterday in the New York Times: GPS and Privacy Rights about the pending D.C. Cir. case noted below. An interesting piece.


Permalink 10:06:01 am, by fourth, 87 words, 447 views   English (US)
Categories: General

Fourth Amendment news

Website: Homeland Security News

Homeland security news, not a government website, has a website. The Hawai'i TSA search case posted here is discussed there.

Recording priest-penitent confession in prison

A case is coming to trial involving a prison recording a priest-penitent confession in a prison as violating the First and Fourth Amendments. See Adoro te Devote, linking to What Does The Prayer Really Say?. It happened in 1996.

Does bringing KSM to S.D.N.Y. create Fourth Amendment rights?

Not likely. See Orin Kerr on Volokh Conspiracy.

Permalink 09:48:25 am, by fourth, 426 words, 520 views   English (US)
Categories: General

M.D.Ala.: Defendant lacked standing in his mother's home where he was there to smoke crack all night and not sleep

Defendant was in his mother's home when he was arrested and the place was searched. He failed to show a reasonable expectation of privacy in her place because he disavowed that he was an overnight guest and he was there to smoke crack all night and not sleep there. United States v. Hunt, 2008 U.S. Dist. LEXIS 111768 (M.D. Ala. July 31, 2008)*:

Hunt expressly disavowed any ownership interests in the dwelling and acknowledged he neither lived nor resided at his mother's residence. He repeatedly stated he did not stay there. He testified he was not there to sleep over at the house, but rather, up all night smoking crack and marijuana and watching television, and had just fallen asleep before the officers arrived. When asked who uses the bedroom at the dwelling, Hunt stated it was a family house with many people coming and going and there was no telling who had been in the house.

"The fact that [Hunt] had temporary access to the premises along with several other members of [his] family and had some personal effects there does not establish the requisite subjective expectation of privacy to assert standing when coupled with [his] explicit disclaimer of ownership or interest." Sweeting, 933 F.2d at 964. Thus, Hunt is unable to establish standing to challenge the search of his mother's house.

So, does this mean that one has to intend to sleep to have standing, even in his mother's home, where he has a standing invitation to stay for any reason or any purpose? That can't be the law.

Crossing the fog line twice, driving 40 in a 60, discrepancies in the account of the trip, and a furtive movement justified a request for consent. People v Blanco, 67 A.D.3d 923, 889 N.Y.S.2d 93 (2d Dept. 2009).*

Apparent hand to hand transaction from a car in an area known as a high crime area was reasonable suspicion. State v. Brewer, 2009 Ohio 6129, 2009 Ohio App. LEXIS 5146 (2d Dist. November 20, 2009).*

Officers had reasonable suspicion on approaching a parked car with people standing around it in an area known for gang activity and saw two people throw handguns under the car. State v. Johnson, 2009 Ohio 6136, 2009 Ohio App. LEXIS 5152 (2d Dist. November 20, 2009)* (well, Duh!).

Defendant’s stumbling when he got out of his car was reasonable suspicion of driving while impaired. It was visible on the video of the stop. The officer had asked for consent, too, because of a tip that defendant was involved in drug activity. The consent was valid. State v. Coniglio, 2009 Ohio 6087, 185 Ohio App. 3d 157, 923 N.E.2d 646 (5th Dist. 2009).

Permalink 08:48:56 am, by fourth, 296 words, 822 views   English (US)
Categories: General

ID: No nexus shown to search defendant's mobile home for drugs where controlled buy occurred in a different one

The state showed a nexus for a search of a mobile home at space 23 because of a controlled buy heard on a wire. After the search warrant came up empty, the officer reasoned that his home, space 25, should be searched, and he reapplied to the magistrate for a search warrant for 25. No nexus was shown to 25 other than that defendant lived there, so there was no probable cause as to the home. State v. Belden, 2009 Ida. App. LEXIS 111 (November 16, 2009), substituted opinion State v. Belden, 148 Idaho 277, 220 P.3d 1096 (App. 2009):

While our standard of review requires us to afford deference to the magistrate's decision, we conclude that Belden met his burden of proof in demonstrating that the search of space 25 was invalid for lack of a nexus between the place to be searched and the item to be seized. The evidence presented at the hearing pointed to space 23 as the location of the controlled drug buy. The evidence presented was considerable and included not only the CI's account of the drug buy, but also an observing officer's account and photographs. At the second hearing, space 25 was identified as Belden's home, but no other evidence was presented to the magistrate to demonstrate a fair probability that contraband would be found there. This decision does not stand for the proposition that mistaken testimony at a warrant hearing cannot later be corrected. There may have been a reasonable explanation for the surveillance officer's identification of space 23 as the location of the controlled drug buy. In this case, however, no explanation was offered and no additional evidence was presented to the magistrate except the fact that Belden resided at space 25. Therefore, the magistrate did not have a substantial basis for concluding that there was probable cause to search the residence at space 25.


Permalink 11:26:13 pm, by fourth, 143 words, 506 views   English (US)
Categories: General

CA8: MO trucks are a "regulated industry"

Missouri regulates trucks under NASIP, and the random stop of defendant’s tractor trailer at a weigh station was proper. The stop was reasonable as an administrative stop and "search" when defendant consented. United States v. Parker, 587 F.3d 871 (8th Cir. 2009). Note: The same case is posted here on Oct. 19 with the same case number. United States v. Parker, 2009 U.S. App. LEXIS 22749 (8th Cir. October 16, 2009). Go figure.

Dog sniff in a common area of a storage unit was not unreasonable. State v. Washburn, 201 N.C. App. 93, 685 S.E.2d 555 (2009).*

Because the state could assume that a search incident was valid at the time, it did not have the incentive to develop the record of the need for the search incident in light of Gant, so the case was remanded for it to do so. State v. Bliss, 153 Wn. App. 197, 222 P.3d 107 (2009).*

[posted 11/22]

Permalink 11:08:36 pm, by fourth, 304 words, 461 views   English (US)
Categories: General

NH: Defendant abandoned stuff in apartment after he moved out

The record supported the conclusion that the defendant abandoned his property in an apartment he was evicted from. He had a week to get out, and he came back twice during the week to get things, but he didn’t come back after that. The police search two weeks after his last visit did not violate his rights. State v. Howe, 159 N.H. 366, 986 A.2d 631 (2009).

IAC claim remanded to the Superior Court for findings. If the search was a warrantless home search, it likely was unreasonable. If it was a probation search, it likely was reasonable. Sullins v. State, 2009 Del. LEXIS 591 (July 23, 2009), on ramand, State v. Sullins, 2009 Del. Super. LEXIS 351 (Del. Super. Ct., Sept. 22, 2009) (search was clearly a probation search, so there).

Under the Washington Constitution, a dog sniff has its limits as to place and duration. This one was from a place where defendant had no reasonable expectation of privacy, next to a car, and defendant’s rights were not violated. State v. Hartzell, 153 Wn. App. 137, 221 P.3d 928 (2009):

¶12 Whether or not a canine sniff is a search depends on the circumstances of the sniff itself. State v. Boyce, 44 Wn. App. 724, 729, 723 P.2d 28 (1986). In Boyce, this court held that as long as the canine “sniffs the object from an area where the defendant does not have a reasonable expectation of privacy, and the canine sniff itself is minimally intrusive, then no search has occurred.” Boyce, 44 Wn. App. at 730.

¶13 The trial court correctly concluded that Hartzell did not have a reasonable expectation of privacy in the air coming from the open window of the vehicle. Hartzell was not in the SUV when the dog sniffed from a lawful vantage point outside the vehicle. The sniff was only minimally intrusive. The trial court did not err when it denied Hartzell's motion to suppress the evidence.

[posted 11/22]


Permalink 06:24:44 pm, by fourth, 614 words, 1757 views   English (US)
Categories: General

D.Haw.: TSA search that revealed child porn was unreasonable and suppressed

TSA exceeded its administrative search authority by searching for child pornography in defendant's luggage. Whatever authority TSA had to search photographs for "sheet explosives," this search was not for that purposes by the way it was conducted. United States v. McCarty, 672 F. Supp. 2d 1085 (D. Haw. 2009):

Despite the testimony indicating that the TSA employees searched the photographs solely to determine if any children were in harm's way, the government argues that the search was nonetheless proper because Andrade was required to inspect the photographs for sheet explosives. Pl.'s Nov. 3 Suppl. Opp'n 2-6. The court readily accepts that a packet of photographs may cause a dense item alarm and TSA protocol requires the TSA employee to ensure that the photographs do not include any sheet explosives. The testimony, however, does not establish that Andrade and Moniz examined the photographs for sheet explosives -- rather, after they noticed the photographs that were initially visible, they inspected the content of additional photographs for the purpose of determining their criminal nature. Further, that this inspection was not an administrative search for explosives is confirmed by the fact that Moniz and Andrade did not actually thumb through all of the photographs -- if they were indeed searching the photographs for sheet explosives, protocol requires that they actually leaf through all of them. See id. at 148, 151. Rather, as described above, at some point during the search, they began to review the photographs not as part of an administrative search but rather to determine whether children were in harm's way.

The government also argues that the entire contents of the envelope were in "plain view" such that the TSA's review of them did not invade Defendant's privacy. Pl.'s Nov. 3 Suppl. Opp'n 8-11. The "plain view" doctrine is limited "to situations where the officer had a legal right to be at the location from which the object was plainly viewed." Bulacan, 156 F.3d at 968 (citing Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990)). "[T]o justify the seizure, the incriminating nature of the object must be immediately apparent and the officer must 'have a lawful right of access to the object itself.'" Id. (quoting Horton, 496 U.S. at 137). In this case, the government has failed to establish that the incriminating nature of the envelope and its contents was immediately apparent. Andrade could not identify what images she initially saw, and testified that she (1) did not believe anything was wrong when she first saw them; Doc. No. 57, at 63; (2) reviewed additional photographs because she "felt that the children were in a harmful way" and "needed to see more before I called my lead;" id. at 61-62; and (3) came to the conclusion that something was wrong based on reviewing everything combined together. Id. at 76-77. Accordingly, the plain view doctrine does not apply.

Finally, the government argues that the court should be guided by "practical considerations" in assessing TSA's and HCPD's actions. Pl.'s Nov. 3 Suppl. Opp'n 11-12. Even if relevant in this case, "practical considerations" do not alter the facts -- Andrade and Moniz's review of the contents of the envelope was not limited to a proper administrative purpose, resulting in a violation of Defendant's Fourth Amendment rights. This is not a case where TSA employees found potentially incriminating photographs and simply continued on with their administrative search to clear the bag for airplane safety. Rather, the court concludes that Andrade and Moniz decided to conduct their own investigation in violation of Defendant's Fourth Amendment rights. In sum, based on the evidence and testimony provided, the court finds that the government did not carry its burden that the search of the Travel Pro bag complied with the Fourth Amendment.

Permalink 06:19:44 pm, by fourth, 511 words, 804 views   English (US)
Categories: General

D.Ariz.: Consent to search given after Miranda violation was involuntary

Defendant’s consent was involuntary where it occurred after officers violated his Miranda rights by ignoring his request for counsel. It was reasonable for defendant to conclude that his rights did not matter and it was futile to resist. United States v. Nejbauer, 2009 U.S. Dist. LEXIS 107329 (D. Ariz. November 2, 2009):

The context in which Mr. Nejbauer made his decision to consent is also relevant to a determination of voluntariness. See United States v. Washington, 490 F.3d 765, 775 (9th Cir. 2007) (the context in which the defendant consented to the search of his car was important to the determination of voluntariness). Schneckloth instructs courts to "determine[] the factual circumstances surrounding the confession, assess[] the psychological impact on the accused, and evaluate[] the legal significance of how the accused reacted." Schneckloth, 412 U.S. at 226 (citing Culombe v. Connecticut, 376 U.S. 568, 603 (1961)). Factors to be considered include, "the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep." Id. (internal citations omitted). In addition, "[i]n examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents." Id. at 229.

The circumstances surrounding Mr. Nejbauer's decision to consent, taken together, suggest that there may have been a lack of true voluntariness. There is nothing in the record to suggest that Mr. Nejbauer has minimal schooling or is of low intelligence. Mr. Nejbauer is also a mature man of forty-eight with some criminal history more than a decade ago. On the other hand, Agent Leising's conduct--successfully dissuading Mr. Nejbauer from talking to a lawyer and immediately thereafter pressuring him to consent to the search--would reasonably suggest to Mr. Nejbauer that it was simply futile to withhold his consent to Agent Leising's demands. Furthermore, Agent Leising's plainly misleading statements regarding the need to dispense with a lawyer and cooperate right away with the FBI in order to receive a sentencing reduction would reasonably lead Mr. Nejbauer to believe that, if he did not comply with Agent Leising's requests immediately, he would lose the opportunity to obtain leniency in the future.

Storage unit landlord had actual authority to enter for emergencies. Here, water was seen coming out of the unit, and that gave cause to enter to check on it. Defendant had unregistered firearms located inside. United States v. Smith, 353 Fed. Appx. 229 (11th Cir. 2009) (unpublished).*

Plaintiffs’ claims survive summary judgment in their excessive force claim where they were awakened asleep in a truck at the Ft. Worth Stockyards, and they lashed out. While the officers were concerned that they may have been ill or crime victims, that justified approaching the plaintiffs. There was a fact dispute as to the need for the force used. Peterson v. City of Fort Worth, 588 F.3d 838 (5th Cir. 2009).*

Permalink 05:15:39 pm, by fourth, 245 words, 355 views   English (US)
Categories: General

W.D.Va.: Defendant was not seized when officer told him to hang for a few minutes

Encounter with the police officer investigating a shooting where defendant was stopped on the street and defendant said he wanted to leave and the officer [essentially] told him to stay was not a seizure. United States v. White, 670 F. Supp. 2d 462 (W.D. Va. 2009)*:

It appears that the Defendant argues the Continued Encounter constituted a seizure when the following exchange took place.

Defendant: Can I go home, please … man, I'm tired.

Officer: … yeah, just a second. I have to make sure you're not wanted.

Defendant. Oh yeah … got a job … no warrants … graduated high school and everything

This exchange poses a closer question than the Initial Encounter, but it too falls short of a seizure. Contrary to Defendant's assertion that "Dean denied permission, saying that before he would allow White to leave he would 'have to make sure you're not wanted,'" Defendant's Memorandum, at 12 (emphasis added), Dean's response could also be taken to mean that, "yeah," the Defendant could go home, but the Officer requested "just a second" of the Defendant's time "to make sure [he was] not wanted."

Defendant was found to have consented to a search of his car after he was validly stopped for speeding and overtinted windows. United States v. Dumervil, 2009 U.S. Dist. LEXIS 106819 (S.D. Fla. October 15, 2009).*

The government showed at hearing that the grand jury subpoenas for records had an independent basis from the alleged illegal search. United States v. Orozco, 2009 U.S. Dist. LEXIS 107362 (D. Colo. November 3, 2009).*

Permalink 01:52:01 pm, by fourth, 307 words, 485 views   English (US)
Categories: General

CA10: Possession of physical child porn that had been downloaded is nexus to search home computer

Nexus to defendant’s home was shown by defendant’s possession of physical child porn images and downloaded them. If he downloaded them, it logically would be at home. United States v. Potts, 586 F.3d 823 (10th Cir. 2009).*

Applying these factors to the circumstances of this case, we hold that the magistrate judge had a substantial basis for determining probable cause to search the defendant's home had been shown. The affidavit had shown that Mr. Potts owned a computer and that he was employed as a teacher at two elementary schools. There was probable cause to believe that Mr. Potts had some child pornography that he kept in a large binder. There was probable cause to believe that Mr. Potts had obtained images of child pornography by downloading them from the internet, a process that he had said could take hours to complete. We have previously said (as noted supra) that those who acquire these materials are likely to hoard them for significant periods of time. All of these factors weigh against the possibility that Mr. Potts might have kept the materials at his workplaces.

These facts provided sufficient nexus for the magistrate judge to issue the search warrant for Mr. Potts's residence. As the district court correctly noted, direct evidence that contraband is in the place to be searched is not required. See United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997). The affidavit, and the inferences that could reasonably be drawn from it, were sufficient to establish the reasonable probability that the Fourth Amendment requires.

By stipulating to facts at a bench trial, the defendant likely unknowingly waived his right to appeal the suppression ruling. The case is remanded to resolve that issue. Nobody told the District Court the defendant wanted to appeal so the issue could be clarified. United States v. Livingston, 586 F.3d 819 (10th Cir. 2009).*

Permalink 11:07:28 am, by fourth, 155 words, 342 views   English (US)
Categories: General

D.V.I.: Nexus to defendant's car and house shown in grow operation warrant

It was reasonable for the USMJ to conclude that there was a nexus between defendant’s grow operation and his car and his house. He had to get to the grow operation somehow. United States v. Danielson, 2009 U.S. Dist. LEXIS 107257 (D. V.I. November 17, 2009).*

Defendant driving someone else’s truck with permission had standing, and the videotape helped support it. United States v. Sanchez, 2009 U.S. Dist. LEXIS 106954 (D. Kan. November 16, 2009).*

Defense counsel was not ineffective for not challenging the search warrant on state law grounds in a federal case since it was irrelevant under the Fourth Amendment. Norman v. United States, 2009 U.S. Dist. LEXIS 106898 (M.D. Ala. October 21, 2009).*

There was probable cause for defendant’s arrest, and the search of his backpack was justified as a search incident. He was also seen ditching something as he ran while holding the backpack. United States v. Watkins, 2009 U.S. Dist. LEXIS 106855 (D. Mass. November 17, 2009).*

Permalink 09:26:07 am, by fourth, 483 words, 428 views   English (US)
Categories: General

S.D.Fla.: Shots fired call led to hot pursuit into defendant's apartment

Officer responding to a shots fired call with the shooter wearing orange pants and a white shirt saw the likely shooter at the apartment complex [how many people wear orange pants?] and approached him. The defendant turned and walked away. The officer shouted to stop, and he kept going into an apartment. The officer was in hot pursuit and had exigent circumstances that defendant was going for the gun. United States v. Walker, 2009 U.S. Dist. LEXIS 106116 (S.D. Fla. October 22, 2009)*:

Applying these legal principles here, the undersigned finds that Officer Wilson and the other police officers did not violate defendant's Fourth Amendment rights because of several exigent circumstances which existed at the time the officers entered his apartment. First, as a preliminary matter, the undersigned finds that the police officers had probable cause to believe that defendant had committed a felony offense, namely, aggravated assault with a firearm or another state crime, as reported by the victim. Officer Wilson, only minutes earlier, had heard his radio dispatcher advising police officers of an assault in the area of the subject apartment reported by a victim who described his assailant as a black male wearing a white shirt and orange pants who allegedly attacked him and fired at him with a firearm. Officer Wilson immediately responded to the area and found the suspect wearing a white shirt and orange pants standing outside of an apartment complex. Officer Wilson approached the suspect, later identified as defendant, who immediately turned and walked quickly away from the officer despite a verbal order to stop. Officer Wilson followed defendant, repeating his order to stop, which only resulted in defendant quickening his pace and entering the subject apartment. Officer Wilson followed defendant from only a few yards behind but could not see defendant's hands to determine whether he still had a firearm. Believing defendant to be the suspect described by the victim, and not knowing whether defendant was still armed, Officer Wilson rightly concluded that he had probable cause to pursue defendant in both "hot pursuit" of a fleeing suspect and for the safety of himself and others possibly inside the apartment.

Having probable cause to believe that defendant had committed an offense, the police officers also correctly concluded that exigent circumstances existed permitting a warrantless entry into the apartment. As stated above, exigent circumstances exist "when the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action." Ramos, 933 F.2d at 972 (quoting Satterfield, 743 F.2d at 844). ...

Store security guards were reliable in the information they passed on to law enforcement officers, and that was reasonable suspicion for defendant’s stop. United States v. Cobb, 2009 U.S. Dist. LEXIS 106313 (E.D. Pa. November 12, 2009).*

Knock-and-announce was properly dispensed with because of a fear for officer safety. [There was no mention of Hudson.] United States v. Landan, 2009 U.S. Dist. LEXIS 106305 (D. Mass. November 12, 2009).*


Permalink 07:22:04 pm, by fourth, 200 words, 604 views   English (US)
Categories: General

SCOTUSBlog--Petition to watch on exclusionary rule

SCOTUSBlog petitions to watch 11-24-09 conference

A potential exclusionary rule case, dressed in RS's clothing:

Docket: 09-102
Title: Virginia v. Rudolph
Issue: Did the Supreme Court of Virginia properly find, on the facts of this case, that an investigative stop was unjustified under the Fourth Amendment?

Opinion below (Virginia Supreme Court)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Amicus Brief of the Virginia Assoc. of Commonwealth’s Attorneys, et al.

From the state court opinion, after finding no reasonable suspicion:

When applied to evidence recovered pursuant to an investigatory stop, the exclusionary rule is best equipped to deter stops made not because of legitimate suspicion, but because the stop was motivated by some pernicious reason (such as racial profiling, personal animus, or the like), or by arbitrariness evidencing a genuine abuse of police power. Such a wrongful basis for the stop warrants the application of the exclusionary rule’s severe penalty.

But not all investigatory stops arise from such base motivations. Indeed, the Supreme Court has explicitly recognized that conduct observed by police may be "ambiguous and susceptible of an innocent explanation" and yet still justify an investigatory stop, allowing the officers to "detain the individuals to resolve the ambiguity." ...


Permalink 12:16:35 am, by fourth, 250 words, 517 views   English (US)
Categories: General

SD: Smell of a meth lab permitted emergency entry to a house

The smell of a meth lab coming from a house justified an emergency entry into the home to look for people who could have been overcome from the fumes. A gas company worker was investigating reports of smells in the neighborhood. State v. Deneui, 2009 SD 99, 775 N.W.2d 221 (2009):

In a case of first impression, we are confronted with the question whether the community caretaker doctrine, which we previously applied to an automobile search, should also be applied to a home search. After smelling ammonia fumes outside a home, police officers entered without a warrant to see if anyone inside needed assistance. While in the home, they saw evidence of a methamphetamine lab in plain view, which later formed the basis for obtaining a search warrant. Defendant homeowner sought unsuccessfully to suppress the evidence seized in his house. ... On appeal, we conclude that, under the particular circumstances of this case, the officers were justified in their community caretaking function in entering the home to make sure no one had succumbed to noxious fumes.

Three tipsters saw video of defendant and identified him, and that was basis of knowledge. State v. Richardson, 2009 Ohio 6018, 2009 Ohio App. LEXIS 5051 (2d Dist. November 13, 2009).

Entry into defendant’s home was not justified by any emergency theory, so the seizure of the rifle in this gun case was unreasonable. However, the handgun was not an issue on the appeal, that supports the conviction, so the unlawful search was unreasonable. United States v. Johnson, 357 Fed. Appx. 29 (9th Cir. 2009) (unpublished).*


Permalink 04:20:14 pm, by fourth, 29 words, 668 views   English (US)
Categories: General

Fourth Amendment news

D.C.Cir. has a GPS surveillance case pending, argued today

See D.C. Circuit Examines Warrantless GPS Surveillance on Blog of the Legal Times discussing the oral argument.

Permalink 07:03:58 am, by fourth, 362 words, 392 views   English (US)
Categories: General

IN: Failure to show nexus precludes application of GFE

Failure to show nexus to the premises precluded application of the good faith exception to the search. Rice v. State, 916 N.E.2d 296 (Ind. App. 2009):

Although the trial court found Officer Yarnell's affidavit lacking in indicia of probable cause such that official belief in its existence was entirely unreasonable, it also found the police conduct was not sufficiently deliberate that exclusion of the evidence could meaningfully deter it. The purpose of the exclusionary rule is to deter law enforcement officers from committing constitutional violations and therefore, evidence should be suppressed "only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional ...." Herring, 129 S. Ct. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)). We believe Officer Yarnell may be charged with knowledge that an arrest warrant issued on the basis of his affidavit was unconstitutional and as in Hensley, exclusion can therefore have a deterrent effect by ensuring future affidavits contain sufficient information from which a judicial officer can make a determination of probable cause and do not merely state conclusions as a substitute for adequate police investigation.

The officer entered defendant’s home after storms and a power failure for no apparent reason. His seizure of a glass pipe in plain view was unreasonable. Commonwealth v. Rowe, 2009 PA Super 215, 984 A.2d 524 (2009):

[*P7] On the strength of only an open doorway on an evening when there had been storms, Corporal Muse entered Appellant's house and proceeded to go from room to room, calling out his status as an officer, checking whether anyone was home. When he arrived upstairs, he entered Appellant's bedroom, where he observed an empty glass pipe sitting next to a computer on a desk, mail addressed to Appellant in the trash can, and a paycheck on a dresser top that was lodged in the bedroom closet.

Nighttime probation search was justified by reasonable suspicion. The probation condition allowed a “search at any time.” There was a checklist for nighttime probation searches, but it was reasonable. There is no separate constitutional standard for a nighttime probation search. King v. State, 984 A.2d 1205 (Del. 2009).*

Permalink 06:33:16 am, by fourth, 217 words, 576 views   English (US)
Categories: General

KS: No bright line rule in whether a stop continues and becomes unreasonable

Eschewing bright line rules, Kansas weighs the factors of whether a stop is unreasonable. Here, it was reasonable. State v. Murphy, 42 Kan. App. 2d 933, 219 P.3d 1223 (2009)*:

Weighing on the side of a voluntary encounter are the following factors: Maschmeier returned the defendant's documents, told the defendant he was free to go, and physically disengaged the defendant; there was only one officer present; there was no display of a weapon or physical touching by the officer; and the encounter occurred in a public place.

Weighing on the side of an illegal seizure are the following factors: Maschmeier did not ask the defendant permission to ask further questions before asking about the illegal contraband, and the officer's emergency lights remained on throughout the encounter.

The above factors supporting a voluntary encounter are strong enough to outweigh the factors supporting an illegal seizure. We affirm the district court's denial of the defendant's motion to suppress.

Defendant’s presence in an area known for a significant number of robberies was not reasonable suspicion for his stop in the early morning hours when he was parked on a parking lot. Cockrell v. State, 2009 Ark. App. 700, 369 S.W.3d 19 (2009),* reversed 2010 Ark. 258, 2010 Ark. LEXIS 306 (2010).

Defendant’s traffic stop for not using his signal was proper. Butler v. State, 300 S.W.3d 474 (Tex. App.—Texarkana 2009).*

Permalink 05:57:48 am, by fourth, 224 words, 388 views   English (US)
Categories: General

FL3: Searching a truant before transport to school was unreasonable for lack of RS

Putting a truant into a police car for transportation to school did not justify a search of her pockets. L.C. v. State, 23 So. 3d 1215 (Fla. App. 3d DCA 2009):

The uniqueness of this case lies in the fact Officer Quintas did not pat-down L.C. prior to directly searching her pockets. Although we appreciate the concern of officer safety, we are aware of no case that stands for the proposition officers can search an individual without having performed a pat-down simply because the individual is being placed in a police vehicle.

Defendant admitted having a gun in a vehicle, and the officer asked for consent to retrieve it, which was granted. Marijuana was found “within inches” of the gun. United States v. Bell, 2009 U.S. Dist. LEXIS 105712 (M.D. Ga. November 12, 2009).*

Defendant was suspected of DUI on VA property, and she worked there. Investigating officers went to her work area and talked to her and touched her in directing her to come with them. That was a seizure, but it was a reasonable investigative detention on this record. United States v. Hawley, 2009 U.S. Dist. LEXIS 105640 (N.D. Ga. October 30, 2009).*

Failure to raise hands and comply with the officers’ commands with their guns drawn was not submission to a show of authority at that moment. Plummer v. United States, 983 A.2d 323 (D.C. App. 2009).*

Permalink 05:39:56 am, by fourth, 233 words, 546 views   English (US)
Categories: General

Fourth Amendment news

A split in rationale in OFAC warrants cases

In When a Warrant Isn't Warranted on IPT News, there is a discussion in the split in the caselaw on OFAC seizure of assets.

The exclusionary rule under the PATRIOT Act

Writing on the exclusionary rule under the PATRIOT Act and an explanation for lay persons is libertarian blogger Jesse Mathewson on The Exclusionary Rule: What every American should know about it!

TSA screeners as cops

In the NYTimes yesterday A Constitutional Case in a Box of Cash by Joe Sharkey. A man carrying cash and interrogated by TSA screeners about it in St. Louis. He used his iPhone to record the interrogation in an interrogation room.

Unfortunately for the interrogators, Mr. Bierfeldt was carrying an audio recorder. “As I was being led into the room, I thought, ‘This is going to be a bigger deal than I thought,’ so I took out my iPhone in plain sight, played a little with it, pushed record and put it back in my pocket,” Mr. Bierfeldt said.

The transcript of Mr. Bierfeldt’s recording shows that the officers, evidently unaware that Mr. Bierfeldt was recording the session, threatened Mr. Bierfeldt with federal arrest for declining to account for the cash. Mr. Bierfeldt kept asking politely whether he was legally required to answer. This intransigence irritated the officers.

See the post TSA changes its search policy.


Permalink 10:45:07 am, by fourth, 199 words, 366 views   English (US)
Categories: General

Fourth Amendment news

Suing ICE

Putting Heat On ICE; Immigrants use civil lawsuits to protest raids by federal agents, by Christian Nolan in CT Law Tribune:

In May 2006, the federal Immigration and Customs Enforcement agency launched “Operation Return To Sender.” The goal: track down, arrest and deport undocumented immigrants, particularly felons, gang members and other dangerous types.

Since then, ICE agents have conducted scores of raids on homes and workplaces. Advocacy groups and lawyers say some agents have been overly zealous, and the advocates have regularly gone to court to try to void arrests and block deportations. But in what seems to be a small, but significant trend, some have also gone on the offensive, filing civil lawsuits against ICE and its agents.

The most recent example is in Connecticut, where a Yale School of Law legal clinic has filed suit on behalf of 10 undocumented immigrants whose homes were raided in June 2007. Immigration attorneys differ on whether the claim has much chance of success. But most agree that litigation is an interesting strategy that could buy time in America for the clients and give ICE officials reason to reconsider tactics.

See this prior post on Cardozo Law School symposium on immigration searches.

Permalink 01:18:01 am, by fourth, 283 words, 595 views   English (US)
Categories: General

AR: Search warrant for home in theft case lacked nexus; good faith exception inapplicable

Defendant was arrested for theft and conspiracy, and the affidavit for the search warrant did not allege any nexus between defendant’s home and the crime. A home may not be searched on arrest “as a matter of course.” Just because the object of the theft had not been recovered does not automatically justify a search. The GFE did not apply. Campbell v. State, 2009 Ark. 540 (November 5, 2009):

The Affidavit in the present case does not even assert that the items to be seized would be in the home, the vehicles, or on appellant’s person. It is clear from the Affidavit For Search and Seizure Warrant that the law enforcement affiant is asserting that when a person is arrested, his or her home, vehicles, and person may be searched as a matter of course. This is directly contrary to law. See Ark. R. Crim. P. 13.1(b).

The State asserts that even if there was a problem with the Affidavit, the good-faith exception saves the warrant. However, “[w]here the officers’ affidavit is so lacking in indicia of probable cause as to render official belief as to its existence unreasonable,” the good-faith exception does not apply. Kelly v. State, 371 Ark. 599, 606, 269 S.W.3d 326, 331 (2007) (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). The Affidavit fails to assert there is probable cause, let alone set out particular facts tending to show that the items to be seized are in the places to be searched. Instead, the Affidavit errantly relies on the arrest for crimes as the basis to search the home, the vehicles, and the person. The circuit court erred in failing to grant Campbell’s motion to suppress evidence seized in the execution of the search warrant.

Permalink 12:27:52 am, by fourth, 400 words, 492 views   English (US)
Categories: General

D.Ariz: No Fourth Amendment right against placing GPS magnetically to exterior of truck

Placing a GPS on defendant’s tractor trailer did not violate the Fourth Amendment. United States v. Coombs, 2009 U.S. Dist. LEXIS 105547 (D. Ariz. October 22, 2009):

Under Ninth Circuit precedent, the placement of a magnetized electronic tracking device on the undercarriage of a vehicle is not an illegal search or seizure. United States v. McIver, 186 F.3d 1119, 1126-1127 (9th Cir.1999). There is no expectation of privacy in the exterior of a car because "[t]he exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a 'search'." New York v. Class, 475 U.S. 106, 107 (1986). The placement of a tracking device on the undercarriage of a vehicle is also not a seizure. "A seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property." United States v. Karo, 468 U.S. 705, 712-713 (1984) (internal citation omitted). In McIver, the placement of a magnetized tracking device did not deprive the defendant of "dominion and control" of his vehicle and therefore, the Ninth Circuit concluded that no seizure occurred. 186 F.3d at 1127.

Defendant failed to show standing to contest the search of the motel room he was sitting in. He did not show he was to be an overnight guest; he did not even know who rented the room or show a connection to that person. United States v. Clark, 2009 U.S. Dist. LEXIS 105684 (D. Kan. November 12, 2009):

At the suppression hearing, defendant produced absolutely no evidence of standing. When officers entered, defendant was sitting casually on the bed. The room was registered to a "Boisey Barefield." Defendant produced no evidence of Barefield's identity, and failed to show any relationship to Barefield, or any invitation from Barefield to visit the motel room. Defendant did not show that he even knew Barefield. Furthermore, defendant did not produce evidence or testimony showing how long he had been in the motel room, what his purpose was in visiting the motel room, or what his relationship was to the other women who were present in the room. In fact, no evidence was produced showing that anyone in the room at the time of the search was registered or listed as an occupant at the motel. For a person to be a "social guest," he must demonstrate a "degree of acceptance into the household" and an "ongoing and meaningful connection to [the] home." Defendant has not done so.

Permalink 12:13:32 am, by fourth, 239 words, 514 views   English (US)
Categories: General

IA: Protective weapons search of car console justified by furtive movement; scope of search was reasonable

A protective weapons search of defendant’s console area was justified by his movements before he was stopped. The search was limited in scope and was reasonable. More than furtiveness was not required here. State v. Petrie, 2009 Iowa App. LEXIS 1393 (October 7, 2009):

We believe the search of the console area in Petrie's vehicle in this case was justified by the deputy's observance of Petrie reaching down to the center console area. It was limited to that area. The deputy was rightfully concerned that Petrie had been reaching for a weapon. If additional suspicious circumstances are necessary, we note that Petrie did not immediately stop when the deputy activated his lights, Petrie acted as though he was going to purchase gas while smoking a cigarette, and he attempted to vacate his car as the deputy approached. These circumstances lend credence to a conclusion that Petrie was nervous when stopped. Nervousness is one factor to consider in determining whether an officer has reasonable suspicion that weapons are present. See State v. Bergmann, 633 N.W.2d 328, 333 (Iowa 2001).

Plaintiff claimed that he did not discover until 2007 that a search warrant was executed on his property in 1995. He failed to show the statute of limitations was tolled in an action for money damages. Leonard v. Woltman, 2009 Iowa App. LEXIS 1516 (November 12, 2009).*

Taillight stop led to officer smelling alcohol and defendant admitting he had been drinking. The stop was reasonable. State v. Shaw, 2009 Iowa App. LEXIS 1432 (October 21, 2009).*


Permalink 11:49:24 am, by fourth, 565 words, 476 views   English (US)
Categories: General

FL5: Entry to a house because of a child wandering the street at night was reasonable; the officer reasonably believed the parents had a medical emergency

Officer found a child wandering the streets, and the child could not wake his parents or get them to come to the door. The officer acted reasonably in making his entry into the house and going into the bedroom to check on the parents who did not wake up. Drugs were found in plain view. The entry was reasonable. Ortiz v. State, 24 So. 3d 596 (Fla. App. 5th DCA 2009) (en banc) (prior opinion posted here):

The officer was fulfilling a laudable police function in attempting to reunite the child with his missing parents. He was not, it should be noted, acting to investigate and uncover a crime. We give weight to the fact that a proper function of the officer in these circumstances was to attempt to reunite the child with his parents, much as the supreme court implicitly did in Riggs.

Although the dissent concludes that there was no reason to believe that the parents were in the house and in possible need of medical or other assistance, we find ourselves in sharp disagreement with that proposition. At the time that' the officer reached the house, the child indicated that his parents were inside and knocked on the door. When there was no answer forthcoming, the child led the officer to the unlocked garage door and either with or without the officer's assistance, lifted the garage door. The officer could see a light on in the house, indicating that someone might be home, yet no one responded. Although the transcript does not say specifically, it appears that the child, followed by the officer, then entered the house through an unlocked door from the garage.

Had the officer acted unreasonably up to this point? We think not. Certainly the officer would reasonably conclude based on the historical facts and the inferences that would logically be drawn from them that something was not right, and that prudence would dictate that he follow the child into the home. He knew that the parents were quite late in picking up the child at the school and could not be reached by phone. At 7:30 p.m., an hour and a half after the child was first supposed to be picked up by his parents, the officer found himself with the child in the unlocked garage of the child's home, and he could see a light on in the unlocked house. Still, no one responded to his knock. Viewing these facts objectively, could the officer reasonably conclude that something was wrong? We and the trial judge, who considered the live testimony presented, agree that the answer to this inquiry is, yes.

Upon entering the house, still having charge of the child, the officer still saw no sign of the parents. Although the child indicated that his parents were likely in the bedroom, the officer found that the bedroom door was locked from the inside, and there was no response to his knock or announcement. At every incremental stage of this evolving scenario the officer reasonably followed his instincts leading him to the conclusion that there could well be a medical emergency under way or worse. Upon entering the bedroom, the officer said, in fact, that he searched for a body. Instead he found the drugs in plain view. There was nothing unreasonable about the officer's behavior or his apprehensions that he was dealing with an emergent situation that demanded prompt action.

Permalink 10:45:57 am, by fourth, 491 words, 518 views   English (US)
Categories: General

N.D.Ill.: Exclusionary rule would not be applied to determine what was covered by suppression order

The court suppressed the search of one of defendant’s residences, but there was a dispute as to which computer of two computers came from there. The exclusionary rule would not be applied to a hearing to decide which was which. It served no purpose of the exclusionary rule. United States v. Conrad, 668 F. Supp. 2d 1071 (N.D. Ill. 2009) (interesting opinion on essentially applying the exclusionary rule to a second hearing on the suppression issue; it says it is unique but it could come up again):

Applying the exclusionary rule here would also impose substantial societal costs. The purpose of the July 2009 hearing was to determine which laptop computer was obtained at the Geneva Residence and therefore subject to the Court's earlier suppression order. The application of the rule would inhibit that purpose, as the evidence Defendant seeks to exclude from consideration will assist the Court in making its decision. See Calandra, 414 U.S. at 349, 94 S.Ct. at 621 (the exclusionary rule would "unduly interfere with the effective and expeditious discharge of the grand jury's duties").

Additionally, applying the rule here would be inconsistent with the more relaxed procedures that apply to suppression hearings. "[T]he rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence." United States v. Matlock, 415 U.S. 164, 172-73, 94 S.Ct. 988, 994 (1974). See also id. at 175, 94 S.Ct. at 995 ("There is, therefore, much to be said for the proposition that in proceedings where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privilege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel."); United States v. Watson, 87 F.3d 927, 930 (7th Cir. 1996) (construing Matlock's holding to mean "aside from privilege, exclusionary rules should not apply in a proceeding in which the court itself is considering the admissibility of evidence"). Just as in other proceedings to which the exclusionary rule does not apply, the court presiding over a suppression hearing "does not finally adjudicate guilt or innocence" and is "unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial." Calandra, 414 U.S. at 349, 94 S.Ct. at 620. See also Scott, 524 U.S. at 365-66, 118 S.Ct. at 2020-21 (declining to extend the exclusionary rule to parole revocation proceedings, which are "traditionally flexible" and in which the "traditional rules of evidence generally do not apply"). Even though suppression hearings are not bound by the traditional rules and procedures applied to trials, the Court notes that Defendant Conrad had the ability to cross-examine the Government's witnesses and present his own evidence.

Plaintiff’s arrest for domestic violence was in his house, without exigent circumstances, and thus violated Payton. Denton v. Rievley, 353 Fed. Appx. 1, 2009 FED App. 0736N (6th Cir. 2009) (unpublished).*

Stop for illegally tinted windows was valid and with PC. United States v. Leonard, 356 Fed. Appx. 231 (11th Cir. 2009) (unpublished).*

Permalink 09:19:47 am, by fourth, 389 words, 367 views   English (US)
Categories: General

CA4: DL checkpoint was validly set up and was not for "general crime control"

Driver’s license and vehicle registration checkpoint in Asheville, NC was properly set up and conducted. Defendant was a passenger in a vehicle stopped, and he interfered with the conversation with the driver and the driver was removed from the car. He furtively put something away, and that led officers to look to see if it was a weapon, which it was. United States v. Henson, 351 Fed. Appx. 818 (4th Cir. 2009) (unpublished):

In determining the constitutionality of a checkpoint, the court must inquire into both the primary purpose and the reasonableness of the checkpoint. If the primary purpose of the checkpoint was to advance "the general interest in crime control," Edmond, 531 U.S. at 48, it is per se invalid under the Fourth Amendment. United States v. Faulkner, 450 F.3d 466, 469-70 (9th Cir. 2006); Mills v. Dist. of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009). If the primary purpose was valid, the court must then judge the checkpoint's reasonableness on the basis of individual circumstances. Illinois v. Lidster, 540 U.S. 419, 426 (2004). This requires balancing "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.'" Id. at 420, 427 (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). Factors to weigh intrusiveness include whether the checkpoint: (1) is clearly visible; (2) is part of some systematic procedure that strictly limits the discretionary authority of police officers; and (3) detains drivers no longer than is reasonably necessary to accomplish the purpose of checking a license and registration, unless other facts come to light creating a reasonable suspicion of criminal activity. McFayden, 865 F.2d at 1311-12 (citing Prouse, 440 U.S. at 662; Martinez-Fuerte, 428 U.S. at 558-59; Brown, 443 U.S. at 51).

With this framework in mind, after reviewing the parties' briefs and the materials submitted in the joint appendix, we find the district court did not err in accepting the recommendation of the magistrate judge and in concluding that the primary purpose of the checkpoint was not general crime control, but rather to promote traffic safety by allowing police to check drivers' licenses and vehicle registration. The court's reasonableness determination with respect to the checkpoint is also sufficiently supported by the record. Therefore, the district court properly denied Henson's motion to suppress on the ground that the checkpoint stop did not violate Henson's Fourth Amendment rights.

Permalink 09:00:23 am, by fourth, 259 words, 392 views   English (US)
Categories: General

S.D.Ga.: Drug dog de minimus intrusion where slight delay in arrival

Drug dog was a de minimus intrusion where the dog arrived just as the paperwork on the traffic offense was completed. United States v. Brooks, 2009 U.S. Dist. LEXIS 104892 (S.D. Ga. April 23, 2009).*

Impoundment of defendant’s moped on his custodial arrest was reasonable although it was parked on private property. United States v. Cauthen, 669 F. Supp. 2d 629 (M.D. N.C. 2009).*

Defendants’ continued stop was reasonable where they were going in the wrong direction from their stated route and they were inconsistent in their travel plans. United States v. Cruz, 2009 U.S. Dist. LEXIS 105283 (S.D. Miss. October 21, 2009)*:

Courts have established that mere uneasy feelings on the part of the officer or inconsistent stories between a driver and passenger cannot, standing alone, provide reasonable suspicion to extend an otherwise lawful detention. Cavitt, 550 F.3d at 437; Estrada, 459 F.3d at 631. However, the facts previously stated, considered in conjunction with the officers' narcotics interdiction training, on-the-job experience consisting of over 100 interdiction traffic stops and knowledge that Interstate 20 between Meridian, Mississippi, and Atlanta, Georgia, is a common drug-trafficking route, would create in the mind of a reasonable police officer and in fact did create for Officer Hill, reasonable suspicion for further inquiry.

The government did not need to obtain a judicially authorized warrant to have a CI get into defendant’s car to make a controlled buy. United States v. Tate, 2009 U.S. Dist. LEXIS 104968 (E.D. Tenn. October 7, 2009)* (this issue did not justify the time the court spent on it, but it is a thorough discussion if anyone is interested).

Permalink 08:29:39 am, by fourth, 422 words, 575 views   English (US)
Categories: General

VA: Direction to assume the "position" is a seizure

Officers came onto defendant’s porch. After defendant gave his name, the officer told him to assume the “position,” and this was a seizure without reasonable suspicion. Roberts v. Commonwealth, 55 Va. App. 146, 684 S.E.2d 824 (2009).*

“In this case, we decide that the exigent circumstance of officer safety justified Officer Charles Kruse's actions in opening wider Joshua P. Lindsey's car door and visually inspecting the car's interior. Officer Kruse saw Lindsey run into a store, brandish a weapon, and leave the store heading in the direction of the car, which had its driver's side door ajar. Given these facts, it was reasonable for Officer Kruse to believe that the car may have been Lindsey's getaway car and that an accomplice, possibly also armed, may have been inside. Because the contents of the car were concealed by its tinted windows and the door was ajar, it was not unconstitutional for the officer to open the door wider and look inside.” Lindsey v. State, 916 N.E.2d 230 (Ind. App. 2009).*

Use of emergency lights when parking behind an already stopped car is not per se a stop. It is primarily for safety purposes. R.H. v. State, 916 N.E.2d 260 (Ind. App. 2009)*:

While Officer Holmes may have activated his emergency lights in order to identify himself to other motorists, we are not persuaded that it constituted an order to stop.

Given the objective and articulable facts of this case, we do not find that Officer Holmes' approach and initial contact with R.H. amounted to a seizure under the Fourth Amendment where he was responding to a report from concerned citizen regarding a strange vehicle parked in front of the citizen's residence; it was late at night; the vehicle already was stopped; and Officer Holmes displayed no force. See Huey, 503 N.E.2d at 625 (finding no "seizure which required specific, articulable facts indicating a crime had been committed or was about to be committed" where the defendant was in his own car, the officer did not stop the defendant and the officer's initial question did not accuse the defendant of a crime); see also Overstreet v. State, 724 N.E.2d 661, 664 (Ind. Ct. App. 2000) (discussing examples of circumstances under which a reasonable person would have believed he was not free to leave, including "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled"), trans. denied.


Permalink 11:00:57 am, by fourth, 102 words, 368 views   English (US)
Categories: General

Fourth Amendment news

"Getting FISA right"

For those interested in the intricacies of FISA and tracing of e-mails, is this piece: The “techie” side of “Getting It Right”. If one is interested in how e-mails can be traced in criminal investigations, it helps to understanding.

On the perp walk

A story on staged perp walks is Charged, and a part of the familiar stage play from the Philadelphia Inquirer. Some case law holds that a staged perp walk is an unreasonable seizure.

Federalist Society debate on the Bill of Rights

FedSoc LiveBlog: Constitutional Interpretation & the Bill of Rights featuring Burt Neuborne and Randy Barnett

Permalink 08:27:01 am, by fourth, 221 words, 538 views   English (US)
Categories: General

W.D.Mo.: Probation search not governed by Gant

A probation search was not governed by Gant. United States v. Lee, 2009 U.S. Dist. LEXIS 104590 (W.D. Mo. November 10, 2009).

Defendant’s stop was based on a traffic violation, and the meth lab ingredients in his car were in plain view. State v. Gibson, 152 Wn. App. 945, 219 P.3d 964 (2009).*

There is no claim for a prison cell search. Tindell v. Beard, 351 Fed. Appx. 591 (3d Cir. 2009) (unpublished).*

The fact a fact was missing from an affidavit for SW does not make it false for Franks purposes. Here, it was omission of a reference to ammunition in a felon in possession case, which was not a violation of state law being investigated by state officers, and relevance to the state officers was the explanation for the missing fact. United States v. Wilson, 2009 U.S. Dist. LEXIS 104392 (D. Nev. September 29, 2009).*

A Miranda warning is not required before consent is sought. Arrington v. State, 286 Ga. 335, 687 S.E.2d 438 (2009).*

Defendant’s patdown, assumed to be lawful, did not permit plain feel of a single pill found in his pocket. The other person in the car had marijuana on him. In re C.C., 2009 VT 108, 186 Vt. 474, 987 A.2d 1000 (2009).

Anonymous caller was corroborated by a controlled buy and a lot of independent police work. United States v. Webster, 2009 U.S. Dist. LEXIS 105321 (C.D. Ill. November 10, 2009)* (not even close).

Permalink 07:51:34 am, by fourth, 372 words, 374 views   English (US)
Categories: General

D.Minn.: Typo in SW address cured by attached picture

A typographical error on the county road name (road 151 v. road 121) was cured by the picture attached to the SW affidavit and the officer’s testimony that they discovered the error and searched the correct property. United States v. Young, 2009 U.S. Dist. LEXIS 104614 (D. Minn. October 15, 2009).

Defendant who was called out by name for questioning by the police was seized under the totality of circumstances. United States v. Crandell, 668 F. Supp. 2d 635 (D. N.J. 2009), on remand from United States v. Crandell, 554 F.3d 79 (3d Cir. 2009):

The facts in Drayton differ significantly from the facts in this case. One critical difference lies in the fact that in Drayton, the police officers were dressed in plain clothes and intended to conduct a random drug interdiction search. The officers informed the defendants in Drayton of their objective.

In contrast, here, the officers received an anonymous tip about a black male, with dreadlocks and blonde tips, carrying a gun, which led them to search, specifically, for Defendant Crandell. Defendant was approached by three uniformed officers. Officer Valez told Crandell that he had "received information that [Crandell] might have a weapon on [him]" and that "[he] wanted to give [Defendant] a pat down for [the officers'] protection." (Tr. 44:3-8.) He then stated that Crandell "was free to leave at any time." (Id.)

There is a notable difference between an encounter where a defendant is among a group of people to whom the police are addressing questions, in furtherance of a random drug interdiction effort; and here, where Crandell was sought out by name by a group of officers, who told him they suspected him of possessing a weapon and wished to pat him down.

A security sweep of a building is not per se invalid because there was an arrest outside. United States v. Guerrero, 669 F. Supp. 2d 417 (S.D. N.Y. 2009).*

Defense counsel was not ineffective for not moving to suppress a search of defendant’s stuff in prison since it would never win. United States v. Owens, 2009 U.S. Dist. LEXIS 104422 (W.D. La. October 19, 2009).*

Informant was corroborated by a controlled buy. There was reasonable suspicion at the time of the stop. United States v. Perez, 2009 U.S. Dist. LEXIS 104364 (D. R.I. October 19, 2009).*


Permalink 11:17:21 pm, by fourth, 394 words, 449 views   English (US)
Categories: General

TX2: How a SW is executed is always an issue

Under Schmerber, how a search for blood is conducted is always an issue, not just whether it was done under a search warrant. Here, just because the blood draw was in a police station does not make it unreasonable per se. State v. Johnston, 305 S.W.3d 746 (Tex. App.—Ft. Worth 2009):

The trial court found that the seizure of appellee's blood "violated the Fourth Amendment's reasonableness requirement by not being taken by medical personnel in a hospital or medical environment." [Emphasis added.] However, most cases interpreting Schmerber do not read it so narrowly as to restrict the location of a blood draw to a hospital or clinic only. Draws taken in jails and sheriff's offices have been upheld as reasonable. Here, there was extensive testimony that the trial court found to be credible as to the "clean" and appropriate nature of the room in which the blood draw was taken. Accordingly, we conclude that the location of the draw was not inherently unreasonable under the Fourth Amendment or Schmerber simply by virtue of it occurring in the clean room at the police station as opposed to a "medical environment."

There likely is no reasonable expectation of privacy in a hotel room rented with a stolen credit card, so the trial court's termination of the suppression hearing without resolving this question is reversed. State v. Delvechio, 301 Ga. App. 560, 687 S.E.2d 845 (2009).*

Defendant's car search was not justifiable under Gant, but it was with PC for a bank robbery, and that was enough. United States v. Singletary, 2009 U.S. Dist. LEXIS 104639 (W.D. La. November 10, 2009).*

The fact an IP address is linked to child porn and then to defendant’s home is enough to issue a search warrant. United States v. Massey, 2009 U.S. Dist. LEXIS 104657 (E.D. Mo. November 10, 2009):

This Court finds that, even accepting the assertion that the IP address could have been hijacked by a third party, the Affidavit provided probable cause to find that evidence of child pornography would be at 7378 Hazel Avenue. This is because the search warrant affidavit established that, through his use of peer-to-peer file sharing software, Sgt. Kavanaugh observed over twenty videos of child pornography (identified by hash value) on a computer with IP address on May 13, 2008 at 1:15:19, which was associated with the account of Ken Massey (defendant's father) at 7378 Hazel Avenue. Defendant's objection will be overruled.

[Posted 11/14]


Permalink 10:05:33 am, by fourth, 34 words, 605 views   English (US)
Categories: General

Article: New Technologies and the Fourth Amendment

Engle, Eric Allen, New Technologies and the Fourth Amendment (November 3, 2009). Available at SSRN: Abstract:

Examines fourth amendment in the context of new technologies which allow remote uninvasive searches. 7 pages, 45 notes.

Permalink 10:02:56 am, by fourth, 230 words, 379 views   English (US)
Categories: General

CA9: While SI was invalid, inventory was reasonable; search upheld

While the SI of defendant's vehicle for his custodial arrest for driving on a license suspended because of a child support obligation was invalid under Gant, it still could be conducted as an inventory because of defendant's custodial arrest on a highway. United States v. Ruckes, 586 F.3d 713 (9th Cir. 2009):

We emphasize, however, that the inevitable discovery doctrine will not always save a search that has been invalidated under Gant. The government is still required to prove, by a preponderance of the evidence, that there was a lawful alternative justification for discovering the evidence. Nix, 467 U.S. at 444. "[I]nevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment." Id. at 444 n.5. Therefore, while the government met its burden here, the district court must conduct a case-by-case inquiry to determine whether a lawful path to discovery--such as inevitability--exists in each case. To hold otherwise would create an impermissible loop-hole in the Court's bright-line Gant determination.

Because the Washington State Patrol is authorized to both impound and inventory a vehicle when its operator is arrested for driving on a suspended license, Ruckes's loaded pistol and crack cocaine would have inevitably been discovered notwithstanding Trooper Wiley's invalid search incident to arrest. Therefore, the evidence was properly admitted under the inevitable discovery exception to the exclusionary rule.

Ninth Circuit criminal blog post here.

Permalink 09:51:47 am, by fourth, 268 words, 498 views   English (US)
Categories: General

W.D.N.Y.: USPO does not violate separation of powers by investigating PV

USPO did not violate separation of powers by initiating federal PV after conducting a probation search. United States v. Simmonds, 2009 U.S. Dist. LEXIS 104015 (N.D. N.Y. November 9, 2009):

For similar reasons, the Court also finds that the USPO did not exceed its constitutional authority. Defendant contends that prosecuting crimes is within the sole province of the executive branch, that it is outside the scope of the judiciary to institute new criminal proceedings, and the instant matter blurs the roles of each branch because "if the probationer feared that information candidly shared with Probation was going to form the basis of a separate criminal prosecution, the probationer would have no incentive to honestly participate in his own recovery. ... [and] limiting criminal investigations and the initiation of criminal proceedings to the executive assures that the constitutional rights of a probationer ... are guarded through the well-established rules of criminal procedure ...."

The police finding defendant’s car parked in another person’s garage does not give him standing to challenge a search of the garage because it shows nothing about a property or possessory interest in the garage. United States v. Suarez-Blanca, 2008 U.S. Dist. LEXIS 111623 (N.D. Ga. January 22, 2008) (USMJ R&R)

Government’s failure to timely raise defendants’ standing to contest historical cellphone number seizure was a waiver under Steagald. United States v. Suarez-Blanca, 2008 U.S. Dist. LEXIS 111622 (N.D. Ga. March 26, 2008) (USMJ R&R).

There was sufficient evidence of ongoing conduct and a connection to defendant’s home for there to be probable cause. United States v. Maricle, 2009 U.S. Dist. LEXIS 103418 (E.D. Ky. October 15, 2009).*


Permalink 08:39:19 am, by fourth, 357 words, 344 views   English (US)
Categories: General

E.D. Mo.: Prior refusal of consent is a factor in finding voluntariness

Officers had probable cause to search the trunk of defendant's car for weapons when none were seen in the backseat. United States v. Ross, 2008 U.S. Dist. LEXIS 111620 (M.D. Fla. August 6, 2008).*

Defendant's consent was valid. She was a nurse and highly educated, and she had previously refused to consent to a search, so she knew what she was doing. "Based on the totality of the circumstances, it is clear that Ms. Mabie's consent was freely and voluntarily given, even if Detective Anderson did actually tell her that they would get a search warrant and 'trash' her house." United States v. Mabie, 2009 U.S. Dist. LEXIS 104009 (E.D. Mo. October 15, 2009).*

Officers had reasonable suspicion to detain defendant when he was found in a room with 1,200 credit cards and equipment to make counterfeit credit cards. United States v. Medina, 2009 U.S. Dist. LEXIS 104158 (S.D. Fla. October 24, 2009).*

Consent to search wallet was a product of defendant's illegal detention. United States v. Duarte, 2009 U.S. Dist. LEXIS 104155 (S.D. Fla. November 4, 2009)*:

Based on the foregoing, this Court finds that Defendant Medina was still detained when he consented to the search of his wallet. From the testimony above, it is clear that the officers were in the process of letting him go, but he was not yet released. This fact alone distinguishes this case from Delancy. In Delancy, the homeowner was not detained at the time consent was given. In fact, the Eleventh Circuit noted that there was no detention whatsoever in Delancy. Delancy, 502 F.3d at 1311.

Even if there had been a short break between the detention and the consent for search (which there was not), Delancy should still be distinguished. Delancy involved a search after an illegal protective sweep of a home. In finding that timing was not as important a factor, the court focused specifically on the facts of that case. Delancy, 502 F.3d at 1311 ("on these facts, however, timing is not the most important factor"). Here, the duration of Defendant's detention was the factor that made it unreasonable and, therefore, illegal. Thus, based on the facts of the instant case, timing is certainly an important factor.

Permalink 08:16:44 am, by fourth, 240 words, 314 views   English (US)
Categories: General

OH: Vehicle frisks under Long; possibility of a carry permit did not nullify patdown with RS

Defendant's probation search was not shown to be a pretext for a police search. State v. Loper, 2009 Ohio 5920, 2009 Ohio App. LEXIS 4976 (5th Dist. November 5, 2009).*

911 calls with three hangups, no response to calls back, and shouting in background about son shooting up heroin in the bathroom justified entry on exigent circumstances. State v. Davis, 2009 Ohio 5888, 2009 Ohio App. LEXIS 4953 (5th Dist. November 3, 2009).*

Defendant's furtive movement when he was under surveillance for drug dealing justified a vehicle "frisk" under Long, and Gant was inapplicable. State v. Moore, 2009 Ohio 5927, 2009 Ohio App. LEXIS 4956 (12th Dist. November 9, 2009).*

Similarly, defendant's having left an open air drug market with his evasiveness when spoken to justified a vehicle "frisk." "Considering the aforementioned facts, viewed in conjunction with Officer Jordan's testimony that weapons often accompany drugs, it was reasonable for Officer Jordan to be concerned for his safety. Such concerns substantiated the search of appellant's vehicle under Michigan v. Long." State v. Kelley, 2009 Ohio 5924, 2009 Ohio App. LEXIS 4992 (12th Dist. November 9, 2009).*

The trial court erred in making an inference on an inference to conclude that the officer had reasonable suspicion for defendants stop. State v. Fields, 2009 Ohio 5909, 2009 Ohio App. LEXIS 4973 (3d Dist. November 9, 2009).*

Defendant's stop was with reasonable suspicion, and the officer smelled marijuana. State v. Wingfield, 2009 Ohio 5833, 2009 Ohio App. LEXIS 4906 (8th Dist. November 5, 2009).*

The possibility defendant might have a carry permit did not nullify the reasonable suspicion for a patdown. State v. Taylor, 2009 Ohio 5822, 2009 Ohio App. LEXIS 4907 (8th Dist. November 5, 2009).*

Permalink 06:11:23 am, by fourth, 249 words, 4359 views   English (US)
Categories: General

Fourth Amendment news

TSA Changes its search policy

Occasionally, TSA personnel decide that they have a criminal investigative mission as well as an airport safety mission, but the courts thus far have not agreed. That hasn't stopped them, and the ACLU sued them, but dropped it yesterday after TSA changed its rules.

In the Washington Times today is an article about it: Airport rules changed after Ron Paul aide detained:

An angry aide to Rep. Ron Paul, an iPhone and $4,700 in cash have forced the Transportation Security Administration to quietly issue two new rules telling its airport screeners they can only conduct searches related to airplane safety.

In response, the American Civil Liberties Union is dropping its lawsuit on behalf of Steve Bierfeldt, the man who was detained in March and who recorded the confrontation on his iPhone as TSA and local police officers spent half an hour demanding answers as to why he was carrying the money through Lambert-St. Louis International Airport.

The new rules, issued in September and October, tell officers "screening may not be conducted to detect evidence of crimes unrelated to transportation security" and that large amounts of cash don't qualify as suspicious for purposes of safety.

"We had been hearing of so many reports of TSA screeners engaging in wide-ranging fishing expeditions for illegal activities," said Ben Wizner, a staff lawyer for the ACLU, pointing to reports of officers scanning pill-bottle labels to see whether the passenger was the person who obtained the prescription as one example.


Permalink 05:40:11 am, by fourth, 425 words, 1258 views   English (US)
Categories: General

W.D. Pa.: Compulsory taking of DNA from pretrial detainee violates Fourth Amendment

Compulsory taking of DNA from a pretrial detainee under 42 U.S.C. § 14135a violates the Fourth Amendment. It cannot be supported under special needs, totality of the circumstances, or a compelling governmental interest. United States v. Mitchell, 681 F. Supp. 2d 597 (W.D. Pa. 2009):

A DNA profile generates investigatory evidence that is primarily used by law enforcement officials for general law enforcement purposes. To allow such suspicionless searches, which are conducted in almost all instances with law enforcement involvement, to occur absent traditional warrant and probable cause requirements will intolerably diminish our protection from unreasonable intrusion afforded by the Search and Seizure Clause of the Fourth Amendment. The Court, therefore, finds that the "special needs" exception to the warrant and probable cause requirements of the Fourth Amendment is inapplicable here.

. . .

The Government also argues that the degree of intrusion affecting Mitchell's privacy interest is minimal. The Third Circuit, in Sczubelek, specifically found that "the intrusion of a blood test is minimal." United States v. Sczubelek, 402 F.3d at 184 (citing Skinner v. Railway Labor Executives' Ass'n, 489 U.S. at 625) 8. The taking of a buccal swab, then, certainly can not be any more intrusive. The Third Circuit, however, also stated that "this slight intrusion into an ordinary citizen's privacy is unconstitutional." Id. Though Mitchell may not be considered an "ordinary citizen" based upon his restricted liberty as a pretrial detainee, this Court has found that he maintains a high expectation of privacy in the comprehensive, inherently private information contained in his DNA sample. Therefore, even though the taking of a sample may not be unreasonably intrusive, the search of the sample is quite intrusive, severely affecting Mitchell's expectation of privacy in his most intimate matters.

. . .

In assessing the totality of the circumstances and weighing the legitimate governmental interests against Mitchell's expectation of privacy in the genetic information contained in his DNA sample, the Court finds that a universal requirement that a charged defendant submit a DNA sample for analysis and inclusion in a law enforcement databank for criminal law enforcement and /or identification purposes is unreasonable under, and therefore in violation of, the Fourth Amendment to the United States Constitution.

. . .

Based upon the foregoing, this Court finds that 42 U.S.C. § 14135a, and its accompanying regulations, requiring a charged defendant to submit a DNA sample for analysis and inclusion in CODIS without independent suspicion or a warrant unreasonably intrudes on such defendant's expectation of privacy and is invalid under the Fourth Amendment to the United States Constitution. An appropriate order follows.

Pittsburgh Post Gazette here; Pittsburgh Live here.

Permalink 05:23:32 am, by fourth, 701 words, 727 views   English (US)
Categories: General

D.Ore.: OFAC seizure can be justified by special needs exception

OFAC seizure of assets is governed by the special needs exception, but, as the court previously ruled, it is not per se reasonable under the Fourth Amendment. Al Haramain Islamic Found. v. United States Dep't of the Treasury, 2009 U.S. Dist. LEXIS 103373 (D. Ore. November 5, 2009), prior opinion 585 F. Supp. 2d 1233 (D. Or. 2008):

Pursuant to the Fourth Amendment, a warrant requires a description of the "place to be searched and the persons or things to be seized." Here, however, as Szubin explains in his supplemental declaration, OFAC and the President have Congressional authority to seize a wide variety of property interests, ranging from money to mortgages, options to insurance policies, merchandise to accounts payable, located both in the United States and elsewhere, the existence of which are not always known to the agency at the time of the blocking order. Szubin explains that OFAC and the President often rely on the holder of the property to freeze the asset and report to OFAC about the existence of the asset. As a result, it would be difficult to apply for a warrant for every asset in each jurisdiction in which the asset might be located. Such a requirement would interfere with the President's and OFAC's ability to act fast in blocking assets that are often very liquid and transferrable.

Szubin further explains, "In many cases, the holders of blocked property have access to substantially more information about the property than does OFAC and will be in the best position to determine whether a blocked person has an interest in the property, particularly where a third party is the nominal owner of the property and the blocked person's interest is indirect, beneficial or contingent." Supp. Decl. of Adam J. Szubin P 8. OFAC provides notice of blocking actions through press releases and by updating its website, as well as by publishing a notice in the Federal Register. Once they have obtained notice, OFAC relies on holders of blocked property "to comply with their obligations to identify and take appropriate steps to freeze the property, including placing blocked funds into an interest-bearing blocked account in accordance with OFAC regulations. See, e.g., 31 C.F.R. § 594.203." Id. at P 9. Szubin also explains that, technologically, banks and other financial institutions are in the best position to track ownership of blocked assets and use interdiction software to identify assets that potentially belong to a designated person.

In this way, the challenging circumstances OFAC faces are similar to the difficulties faced by the probation officer in Griffin. Just as requiring a warrant prior to entering a probationer's home would interfere with the probation system and make it difficult for a probation officer to respond quickly to a potential violation of the conditions of probation, so too would a warrant requirement here "make it more difficult to … respond quickly to evidence of misconduct[.]" Griffin, 483 U.S. at 876.

Since I have determined that both the first and second factors apply in this special needs analysis, I must now "assess the constitutionality of the search by balancing the need to search against the intrusiveness of the search." Henderson v. Simi Valley, 305 F.3d 1052, 1059 (9th Cir. 2002); Ferguson, 532 U.S. at 78 ("we employ[] a balancing test that weigh[s] the intrusion on the individual's interest in privacy against the 'special needs' that support[] the program").

As I noted in AHIF, the effect of the seizure of assets on AHIF-Oregon is "substantial. The effect of the government's blocking and designation orders is effectively to close AHIF-Oregon's doors." 585 F. Supp. 2d at 1259. AHIF-Oregon's assets have now been frozen for more than five years. Nevertheless, a designated entity may seek a license from OFAC to engage in any transaction involving blocked property. 31 C.F.R. §§ 501.801-.802.

On the other side of the scale, the government's interest in seizing the assets of organizations with links to international terrorist organizations are substantial, as I have indicated above. I believe the government's interest in stopping the financing of terrorism outweighs AHIF-Oregon's privacy interests. See Propper, 337 U.S. at 481-82 (TWEA used to "deprive enemies, actual or potential[,] of the opportunity to secure advantages to themselves or to perpetrate wrongs against the United States" and does "necessitate[] some inconvenience to our citizens and others").

Permalink 05:11:45 am, by fourth, 327 words, 474 views   English (US)
Categories: General

TN: Nexus for house in a SW shown by defendant leaving house to go directly to a drug deal

The affidavit for the search warrant adequately showed facts connecting defendant's premises to the drug dealing to support a search warrant for the house. He left the house to go directly to a drug deal. State v. Saine, 297 S.W.3d 199 (Tenn. 2009), revg in part State v. Saine, 2008 Tenn. Crim. App. LEXIS 289 (April 4, 2008):

The affidavit explained that the officers followed Mr. Saine directly from his residence to the prearranged location where recording and transmitting equipment enabled the officers to observe Mr. Saine selling cocaine to the informant. The officers then followed Mr. Saine directly back to his residence. From these facts, the magistrate could reasonably infer that the supply of drugs was located in Mr. Saine's residence. See id. § 3.7(d) n.165 (citing state and federal cases with similar holdings from various jurisdictions); cf. Smith, 868 S.W.2d at 572 (finding that the affidavit established probable cause to search the defendant's residence where the objects sought were of a type kept at one's residence and the defendant admitted to returning directly home after being with the victims on the night of the murder).

This inference was further supported by Detective Roberts's experience that drug dealers ordinarily keep their drugs, the proceeds of drug sales, and financial records related to their business in their residences. See United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002) (citing a long line of cases); compare United States v. Kenny, 505 F.3d 458, 461-62 (6th Cir. 2007) (holding that the affidavit showed a nexus when the defendant was arrested for manufacturing methamphetamine at another location, which "is only a step away from dealing"), with United States v. McPhearson, 469 F.3d 518, 526 (6th Cir. 2006) (holding that the affidavit did not show a nexus when the defendant was arrested on his porch with cocaine in his pocket).

The smell of marijuana coming from defendant’s car was justification for its search. The trial court reached the right result but for the wrong reason. Perry v. Commonwealth, 55 Va. App. 122, 684 S.E.2d 227 (2009).*


Permalink 06:14:07 am, by fourth, 352 words, 466 views   English (US)
Categories: General

MO: When records check came back clean, officer could not ask for consent without first telling defendant he could leave

When defendant’s records check came back clean, defendant should have been permitted to leave, and asking about drugs made the stop unreasonable. State v. Vogler, 297 S.W.3d 116 (Mo. App. 2009)*:

Defendant argues that, considering the totality of the circumstances, Loughridge's conduct would have communicated to a reasonable person that he or she was not free to decline the officer's requests or terminate the encounter. This Court agrees. In the usual traffic stop, the issuance of the citation or warning at the conclusion of the encounter helps indicate to the driver that he or she may leave. Here, however, Defendant was told at the outset of the traffic stop that he was only being given a warning. Nevertheless, he was detained by Loughridge for a record check. Defendant was instructed to return to his car and remain there, which he did. While Loughridge received the results of his radio check, he never conveyed that information to Defendant or told him he was free to go. When Loughridge returned to the Cadillac, he stood to the side of the open window and immediately asked Defendant if he had any illegal drugs or weapons in the car. Despite Defendant's denial, Loughridge asked to search the vehicle. When Defendant exited the vehicle, Loughridge immediately asked Defendant if he had any weapons on his person. Again, despite Defendant's denial, Loughridge asked to pat Defendant down. From the stop to arrest, this seven-minute encounter between Loughridge and Defendant was one seamless event. There was nothing to give a reasonable person any clear demarcation between the end of the traffic stop and the purported new, consensual encounter between officer and detainee. Therefore, we hold that the trial court clearly erred in deciding that the evidence collected from Defendant resulted from a consensual search.

The smell of marijuana was PC for a search of defendant’s car, and Gant was inapplicable. State v. Johnlouis, 22 So. 3d 1150 (La. App. 3d Cir. 2009).*

Defendant’s failure to include inventory in his motion to suppress precluded relying on that argument on appeal. State v. Ceaser, 2009 La. App. LEXIS 1863 (La. App. 3d Cir. November 4, 2009).*

Permalink 05:47:08 am, by fourth, 422 words, 637 views   English (US)
Categories: General

CA2: No Bivens claim for extraordinary rendition where Congress has not spoken

The Second Circuit en banc refuses to recognize a Bivens claim in extraordinary rendition cases where Congress has not spoken. Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc):

Our ruling does not preclude judicial review and oversight in this context. But if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.

Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather, we conclude that, when a case presents the intractable "special factors" apparent here, see supra at 36-37, it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress--and not for us as judges--to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition, see David Johnston, U.S. Says Rendition to Continue, but with More Oversight, N.Y. Times, Aug. 24, 2009, and not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.

Defendant was present, but he was not asked for consent. This did not violate Randolph. Invoking Miranda is not a refusal of consent. Also, he never objected to her consent. United States v. Stanley, 351 Fed. Appx. 69, 2009 FED App. 0716N (6th Cir. 2009), cert. den. 2010 U.S. LEXIS 2960 (U.S., Apr. 5, 2010) (unpublished)*:

Stanley did not refuse consent to search the apartment. Stanley admits he was present in the apartment when Foster gave her consent to search. Stanley did not object after Foster gave her consent. Again, Stanley cites no authority, and we are unaware of any, that supports Stanley's assertion that the invocation of Miranda rights constitutes an express refusal of consent to search. The district court did not err in ruling that Foster's consent to the search gave the officers legal authority to search the apartment. See Lawrence, 308 F.3d at 626-627.

Failure to include an argument in a motion to suppress is a waiver of that specific argument. United States v. Hamilton, 587 F.3d 1199 (10th Cir. 2009).*


Permalink 11:05:06 pm, by fourth, 248 words, 392 views   English (US)
Categories: General

D.Vt.: Gamma ray search of RV at Customs did not require RS

Defendants appeared nervous crossing through Customs in a mobile home into Vermont, and the vehicle was sent for a search ("secondary scan") which produced ammunition, a holster, and a bulletproof vest. The vehicle was then subjected to a gamma-ray VACIS ("Vehicle and Cargo Inspection System") which was "anomalous." A dog sniff occurred, and drugs were found. None of this required reasonable suspicion. United States v. Cybulski, 2009 U.S. Dist. LEXIS 102600 (D. Vt. October 29, 2009).

The court does not credit the officer’s testimony that the license plate light was out as the justification for the stop, and this is a failure of proof. United States v. Pate, 2009 U.S. Dist. LEXIS 102902 (S.D. Ohio October 19, 2009):

The Court finds that the evidence presented by the Government does not demonstrate that Officer Bemerer had a "particularized and objective basis" for suspecting Pate of wrongdoing. The only factual evidence presented by the Government with respect to the illumination of the license plate was not sufficiently particularized to this case. Rather, the testimony about this incident was indistinct from what Officer Bemerer does "all the time." In the absence of testimony concerning specific facts particular to the officer's decision to stop Pate, the Court cannot conclude that the Government met its burden of establishing that the officer had an objective and particularized basis for suspecting Pate of wrongdoing.

Without telling us what it is, the court concludes there was reasonable suspicion for the stop. United States v. Stewart, 352 Fed. Appx. 322 (11th Cir. 2009) (unpublished).*


Permalink 02:28:21 pm, by fourth, 218 words, 689 views   English (US)
Categories: General

DE: No Fourth Amendment right in prison mail

In its first time to address the issue, the Delaware Supreme Court holds that there is no First or Fourth Amendment right in prison mail that was read and seized by prison officials. Johnson v. State, 2009 Del. LEXIS 582 (November 4, 2009):

Here, as in Busby, Johnson's Fourth Amendment argument may initially appear to be stronger than that under the First Amendment, because he may have had no reason to suspect that officials were inspecting his outgoing mail. However, in Stroud, the only United States Supreme Court case addressing the Fourth Amendment, the court permitted the prosecution to introduce evidence from an inmate's outgoing mail. No precedent in Delaware or the Third Circuit indicates a different result. Johnson was on notice that his incoming prison mail was being opened and inspected. We hold that Johnson had no reasonable expectation of privacy regarding his non-privileged outgoing prison mail that he sent to Stewart.fn47

47. Stroud v. United States, 251 U.S. 15 (1919).

Defendant’s post-conviction allegation that defense counsel did not challenge his search was belied by the record. Viveros v. State, 2009 Ark. 548, 2009 Ark. LEXIS 710 (November 5, 2009) (per curiam).*

During a stop for over-possession of matches, which is reasonable suspicion in Arkansas, an outstanding warrant was found on defendant, and he consented to a further search. Wade v. State, 2009 Ark. App. 560; 2009 Ark. App. LEXIS 690 (September 2, 2009).*

Permalink 01:31:19 pm, by fourth, 224 words, 374 views   English (US)
Categories: General

CA10: Defendant consented to each step of his searches

Search did not exceed the duration of defendant's consent because (1) defendant repeatedly consented to the searches; (2) defendant's consent contained no limitation on the duration of the search; (3) at no time did defendant seek to limit the duration of the search, nor did the officers create the understanding that the search would have been brief; and (4) there was no indication that the officers failed to act with due diligence in conducting the search. A dog also alerted. United States v. Carbajal-Iriarte, 586 F.3d 795 (10th Cir. 2009).*

Officers had an arrest warrant, and that permitted them to enter defendant’s premises to arrest under Payton. Short v. United States, 2009 U.S. Dist. LEXIS 102269 (E.D. Mo. November 3, 2009).*

Defendant’s stop for not having a driver’s license was justified because the officer knew defendant was without a license. The smell of marijuana coming from the car justified more. United States v. Duque, 2009 U.S. Dist. LEXIS 102199 (W.D. Okla. November 2, 2009).*

Defendant was reasonably detained as a suspected illegal alien. United States v. Adoni-Pena, 2009 U.S. Dist. LEXIS 102125 (D. Vt. October 23, 2009).*

Mistake of law about obstructed taillights required suppression of defendant’s stop. United States v. McHugh, 349 Fed. Appx. 824 (4th Cir. 2009) (unpublished).*

The frisk of a juvenile for a weapon was without reasonable suspicion, so the search is suppressed. State v. Anthony L., 2009 N.M. App. LEXIS 185 (October 7, 2009).*

Permalink 12:48:14 pm, by fourth, 573 words, 528 views   English (US)
Categories: General

E.D.Mich.: Under Patane, a Miranda violation does not preclude using product to get a search warrant

Defendant was on parole for felony eavesdropping as a peeping tom. He was encountered doing it again, and six police officers stopped him at 2 a.m. on his bicycle and questioned him, and he admitted to having videos of unsuspecting females on his computer. His admissions were used to get a search warrant, and child porn was found. His statement was custodial and he was not Mirandized, but, under Patane, it could be used to get a search warrant. United States v. Stark, 2009 U.S. Dist. LEXIS 101888 (E.D. Mich. November 2, 2009).*

Defendant did not really dispute the officer’s testimony that they knocked before entering, so it was not a violation of knock-and-announce. Also, Hudson forecloses relief. The officers also left a copy of the warrant and there is no requirement it be served before the search. United States v. Thompson, 667 F. Supp. 2d 758 (S.D. Ohio 2009)*:

The Court finds that no knock-and-announce violation occurred. Agent Beckman testified that the entry team knocked on the garage door, announced their presence, and waited before entering. Although she did not hear what the Agents were saying and thought someone was calling her name, Mrs. Thompson's testimony was consistent with the Agents' having announced their presence prior to entry. Moreover, even if the Court found that the executing agents failed to knock-and-announce their presence before executing the warrant, Thompson is not entitled to suppression because "[s]uppression is not a remedy for violation of the knock-and-announce rule." United States v. Roberge, 565 F.3d 1005, 1010 (6th Cir. 2009); see also Hudson, 547 U.S. at 594 (holding that the exclusionary rule does not apply to knock-and-announce violations). Therefore, Thompson's request for suppression on this ground is DENIED.

. . .

The Supreme Court and the Sixth Circuit have stated in dicta that neither the Fourth Amendment nor Rule 41 requires the executing officer to present a copy of the warrant before conducting the search. United States v. Grubbs, 547 U.S. 90, 98-99, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006); Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and Firearms, 452 F.3d 433, 443, 444 (6th Cir. 2006) (en banc) (same). In both Grubbs and Baranski, the executing agents presented a copy of the warrant to the defendant or the property owner shortly after the search began or upon request. Grubbs, 547 U.S. at 93 (defendant provided with copy of warrant 30 minutes into the search); Baranski, 452 F.3d at 436 (property owner's attorney shown copy of the warrant immediately upon request). In Groh v. Ramirez, however, the Supreme Court expressly left open the question directly raised in this case -- whether it would be unreasonable under the Fourth Amendment for an executing officer to refuse to produce a warrant at the outset of a search upon the request of an occupant. 540 U.S. 551, 562 n.5, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004) ("Whether it would be unreasonable to refuse a request to furnish the warrant at the outset of the search when, as in this case, an occupant of the premises is present and poses no threat to the officers' safe and effective performance of their mission, is a question that this case does not present."); see also Baranski, 452 F.3d at 442 (noting that the Groh court "left open only the possibility that it would be 'unreasonable' to decline such a request [to see a warrant at the outset of a search where the occupant is present]…).

Merely asking for ID is not compulsion under Bostick. United States v. Morales-Ruiz, 2009 U.S. Dist. LEXIS 101786 (M.D. Pa. November 2, 2009).*


Permalink 11:05:51 pm, by fourth, 103 words, 630 views   English (US)
Categories: General

CA: DNA description in a warrant pending

The California Supreme Court just heard argument on whether a DNA profile is particular enough for an arrest warrant. See Calif. Justices Seem OK With DNA-Based Warrant by Mike McKee of The Recorder on

At issue in People v. Robinson, S158528, is whether an unknown suspect's DNA profile -- as opposed to a physical description--can satisfy the so-called particularity requirement for issuing a "John Doe" warrant, and whether such warrants toll the statute of limitations for bringing criminal charges.

A third issue is whether the unlawful collection of a blood sample violates the Fourth Amendment's protection against unreasonable searches and seizures.


Permalink 11:27:16 pm, by fourth, 766 words, 303 views   English (US)
Categories: General

N.D.Ill.: Court does not believe officer on cause for stop and suppresses

If you think police officers will stop people and make up a cause, see this case where the court just does not buy the justification for the stop after listening to the officer testify. United States v. Williams, 2009 U.S. Dist. LEXIS 101961 (N.D. Ill. November 3, 2009):

Officer Simon's professed strategy for effecting the desired search and arrest makes little sense. According to his testimony, he approached the vehicle knowing that he lacked his own probable cause, even assuming Williams and Howard were not wearing their seat belts. He therefore approached the vehicle knowing that he would have to find something in plain view to justify a further search of the vehicle or its passengers. Thus, on his own account, Officer Simon enlisted luck to deliver the probable cause he needed but lacked--and luck of course came through for him. But to accept this account, the court would have to accept that Officer Simon was prepared to let Williams and Howard be on their way with only a traffic citation--no search, no arrest--in the event that no contraband or weapons could be found in plain view. That would have been remarkable, since the whole point of the traffic stop was to arrest Williams and Howard. Simply put, Officer Simon was going to stop Williams and Howard one way or another, whether they committed any minor traffic violations or not; that, indeed, was his assignment. His explanation for why he stopped Williams and Howard, therefore, cannot be fully candid, and either seatbelt infractions were not the basis for the stop or Williams and Howard were wearing their seatbelts after all. It makes no difference which is in fact the case; the point is that Officer Simon was not candid and his testimony was not believable.

Officer Simon's account of the traffic stop would have been far more credible had he acknowledged the simple truth that he was going to stop Williams and Howard one way or another. Instead of candor, however, Officer Simon relied entirely on the seatbelt-violation rationale for the traffic stop and a less-than-straightforward story about what each officer believed and observed to back it up. The problem with being candid in this context is, of course, that Officer Simon needed to provide some basis for the stop without falling back on the probable cause he presumed DEA to have. But the fact that he was in a bind in no way bolsters the credibility of his account; on the contrary, it underscores his strong incentives to tell a story like the one he told--whether or not it was true.

Most importantly, these failures of credibility vitiate the crucial element of Officer Simon's account: that, as luck would have it, the officers immediately noticed marijuana in two plain-view locations in the SUV, Williams and Howard apparently having made no attempt to close the ashtray or sweep away the "crumbs" before the officers arrived at their vehicle. Now, Williams and Howard may have been fatally careless or too stoned to react sensibly, for all the court knows. But there was no testimony or mention in the police reports of any signs of intoxication, and such explanations would in any event be far easier to credit if Officer Simon's earlier testimony had been believable. Williams, for his part, does not deny that he had two small bags of marijuana in his pocket and two unsmoked joints in the ashtray; he does not attempt to argue that evidence was planted. He claims only that he closed the ashtray before the officers arrived at the vehicle and that he didn't just leave marijuana sitting around, in plain view, for two approaching officers to see--while he had a kilogram of cocaine in the back seat.

Considering all the factors that bear on the credibility of Officer Simon's testimony--his manner of testifying; his incentives to tell a story like the one he told, which otherwise makes little sense; his objective of searching and arresting Williams and Howard on whatever grounds he could muster; and, as he would have it, his confident reliance on sheer luck to achieve that objective--the court cannot credit the essential lynchpin of his story, his wholly fortuitous discovery of marijuana in plain view. In the circumstances of this case, it is far more plausible that the officers found the marijuana while performing the search they were out to perform, one way or another.

[Note, this post and the following one were accidentally posted to last night. Things like that happen when I try to do two things at once.]

Permalink 11:21:02 pm, by fourth, 285 words, 468 views   English (US)
Categories: General

WI: In a knock-and-talk, opening door and slamming it was justification for an entry to prevent destruction of evidence

Officers conducted a knock-and-talk, and defendant opened the door, saw the police, and slammed the door. That was sufficient exigency of possible destruction of evidence to justify the police entry. State v. Phillips, 2009 WI App 179, 322 Wis. 2d 576, 778 N.W.2d 157 (2009):

P11 We need not delve into the appropriateness of the officers' determination to conduct a knock and talk or whether a knock and talk creates an exigency because in this case, a knock and talk was never actually accomplished. Instead, we conclude that Phillips, not the police, created the exigency that resulted in the warrantless search when, after seeing the police outside the residence, Phillips retreated into the residence and shut the door after the police ordered him to stop. Those actions created the exigency in this matter--namely, the risk that evidence would be destroyed.

Comment: How convenient. What if he just did not want to talk to them? He was ordered to stop. What about the freedom to terminate an encounter that has no legal justification for a detention?

Officers had reasonable suspicion of defendant driving in a high-crime area and he stopped and a person walked up and stuck his hand inside the car. It appeared to be a hand-to-hand drug sale. State v. Mello, 200 N.C. App. 437, 684 S.E.2d 483 (2009).*

Officers approaching defendant to talk to him in a high-crime area did not stop him before he fled, per Hodari D. State v. Mewborn, 200 N.C. App. 731, 684 S.E.2d 535 (2009).*

Defendant agreed to a knock-and-talk entry after police said that they smell marijuana. The fact it was packaged tightly did not make the officers' testimony inherently incredible. Circumstances also justified a protective sweep. State v. Stover, 200 N.C. App. 506, 685 S.E.2d 127 (2009).*


Permalink 06:10:25 am, by fourth, 541 words, 409 views   English (US)
Categories: General

OH9: Permission to enter after the fact did not make defendant a social guest with a reasonable expectation or privacy

Defendant and two others were found to have no reasonable expectation of privacy in a friend's house where they were seen entering the apartment, and others called police and the friend. The police entered and found the defendant flushing cocaine down the toilet. At best, the court found that the friend only was granting permission for him to enter after the fact. The police were investigating an illegal entry. State v. Chapman, 2009 Ohio 5757, 2009 Ohio App. LEXIS 4845 (9th Dist. November 2, 2009):

[*P13] Even if this Court were to conclude that the protection of the Fourth Amendment extends to all social guests, Mr. Chapman did not establish that he was a social guest. According to Justice Ginsburg, a guest may "share his host's shelter against unreasonable searches and seizures" if the "homeowner or lessee personally invites [him] into her home to share in a common endeavor ...." Minnesota v. Carter, 525 U.S. 83, 106 (1998) (Ginsburg, J., dissenting). It is "[t]hrough the host's invitation [that] the guest gains a reasonable expectation of privacy in the home." Id. at 108 (Ginsburg, J., dissenting). Similarly, this Court has held in the context of premises liability that "[a] social guest is a person who comes onto the premises, pursuant to an invitation, presumably giving the possessor some personal benefit, intangible though it may be." White v. Brinegar, 9th Dist. No. 16429, 1994 WL 232692 at *2 (June 1, 1994).

[*P14] In this case, there was no evidence that the tenant invited Mr. Chapman to her apartment. To the contrary, the testimony established that she did not know Mr. Chapman was in her home until a police officer asked her if he was allowed to be there. Although the tenant said Mr. Chapman had permission to be in her house, her "after the fact" acquiescence does not amount to an invitation as contemplated by the United States Supreme Court. Mr. Chapman, therefore, failed to establish that he had a legitimate expectation of privacy in the apartment under the Fourth Amendment of the United States Constitution.

"[W]here the warrant was executed at a one-bedroom residence in the middle of the afternoon, and in connection with a murder investigation, and when the officers had reason to believe that a suspect was inside the residence with access to a firearm, we are satisfied that it was not unreasonable for the officers to infer constructive refusal after they announced their presence and received no response within fifteen seconds." Atchison v. United States, 2009 D.C. App. LEXIS 543 (October 29, 2009).

Defendant was arrested for obstructing a police officer, and a search incident of his car was unjustified. Gant was decided while the case was on appeal, and the state conceded it governed the search. People v. Bridgewater, 235 Ill. 2d 85, 918 N.E.2d 553, 335 Ill. Dec. 208 (2009):

Here, defendant was handcuffed and inside Officer Morrow's squad car when the vehicle search took place. This is not the "rare case" where an officer could not prevent the arrestee's access by handcuffing and securing him away from the vehicle. Further, defendant was arrested for obstructing a peace officer after exiting his vehicle and walking into the store. The offense was based entirely on defendant's failure to obey Officer Morrow's commands. The officers could not have reasonably believed evidence of obstructing a peace officer could be found inside defendant's vehicle.

Permalink 05:50:32 am, by fourth, 513 words, 710 views   English (US)
Categories: General

D.S.C.: Arrest in doorway did not justify protective sweep

Defendant's arrest in his doorway did not justify a protective sweep of the premises under Buie. Moreover, the facts did not support a protective sweep because the police had no evidence to believe that there were others in the defendant's mobile home, just because he would not tell the police that there was somebody else inside when they asked because he was yelling incoherently. United States v. McCants, 664 F. Supp. 2d 620 (D. S.C. 2009):

While the Supreme Court has recognized that there is a necessary balance between one's right to privacy and the need for law enforcement officials to ensure their own safety, the Supreme Court has consistently shown a heightened regard for the right to privacy in one's home. The Government can cite to no precedent, and this Court is aware of none, where any court has held that the arrest of a suspect near the door of a residence automatically allows police to circumvent the warrant requirement (and even the information burden necessary to conduct a protective sweep) and gain the ability to "sneak a peek" inside the residence in question. In fact, some courts have implicitly held the exact opposite. See, e.g., United States v. Stover, 474 F.3d 904, 911 (6th Cir. 2007) ("[D]uring a search incident to an arrest occurring inside a home, officers may 'as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched.'") (quoting Buie, 494 U.S. at 327) (emphasis added). Furthermore, several of the guns were not only inside Defendant's trailer, but inside a closet within the trailer. This, then, went beyond merely looking around to ensure the safety of the officers because they assert Defendant was arrested in very close proximity to the front door. Instead, officers, who lacked probable cause and had no search warrant, walked into Defendant's trailer through the front door and proceeded to search the entire residence, including closed closets.

The search of defendant's car could not be justified by the government as a search incident where defendant was handcuffed and in a police car or by inventory, but it could be justified by probable cause. United States v. German, 664 F. Supp. 2d 614 (D. S.C. 2009).*

While defendant's stop was justified, his questioning after his paperwork came back "clear" was unreasonable, and the motion to suppress should be granted. United States v. Brantley, 2009 U.S. Dist. LEXIS 101307 (E.D. Tex. September 24, 2009)*:

But, after he issued the warning and had clear returns at 9:50 p.m., Sgt. Hemmenway did not inform Defendant or his passenger that they were free to leave. Instead, he detained them further, asking for consent to search, inquiring about illegal drugs in the car, and informing them that they must wait for a K-9 unit to perform an open-air dog sniff.

Therefore, the principal issue before the Court is whether Sgt. Hemmenway had reasonable suspicion to continue detaining Defendant after clearing his driver's license and vehicle registration at 9:50 p.m. The K-9 unit did not arrive until approximately 19 minutes later.


Permalink 08:43:44 am, by fourth, 124 words, 349 views   English (US)
Categories: General

Cal.4: Getting a look at envelopes at a mail drop did not involve a reasonable expectation of privacy

There is no reasonable expectation of privacy in the front of an envelope. Police went to defendant’s mail drop place and asked if he used the place, and an employee got three envelopes from his box and showed them to the officers. This was not an illegal search. They saw he used AT&T wireless, so they subpoenaed AT&T records. People v. Reyes, 178 Cal. App. 4th 1183, 101 Cal. Rptr. 3d 109 (4th Dist. 2009).*

Trial court’s finding of credibility of the cop settles the consent issue here. State v. Hilton, 2009 Ohio 5744, 2009 Ohio App. LEXIS 4830 (2d Dist. October 30, 2009).*

Defendant’s traffic stop was justified by the facts, so his racial profiling claim was irrelevant. Rodriguez-Bonilla v. State, 2009 Ark. App. 688, 2009 Ark. App. LEXIS 838 (October 21, 2009).*

Permalink 08:35:39 am, by fourth, 579 words, 557 views   English (US)
Categories: General

SD: Arrest of juvenile as one of six around marijuana in a house was without PC; forced urine sample suppressed

A juvenile was arrested for being in a room where marijuana was found after the police asked generally who’s marijuana it was, and nobody ‘fessed up to it. So, everybody was arrested, and the juvenile was compelled to give a urine sample, which was positive. The juvenile's arrest was without probable cause. In re H.L.S., 2009 SD 92, 774 N.W.2d 803 (2009):

[*P19] The State argues that H.L.S. was arrested because the contraband was found in the apartment in plain view in the same room in which H.L.S. was located. The State further argues that once the occupants of the apartment declined to answer Bobzien's question regarding the ownership of the marijuana, Bobzien had individualized suspicion as to each of the six occupants. The State concludes that H.L.S.'s arrest was based on more than "mere propinquinty." The State argues that Bobzien as one of the officers present on the scene is charged with the collective knowledge of all the officers present during the search and arrest.

[*P20] However, there is no testimony in the record from Bobzien or anyone else as to what other facts he may have been told by the entry team officers regarding H.L.S.'s presence and location relative to the contraband at the time they first entered the apartment. According to the record, Bobzien was informed by the entry team that the marijuana stems, seeds and flakes were found in plain view and in the living room by the officers several minutes before Bobzien entered the apartment. However, H.L.S.'s location relative to the contraband at the time those officers first entered the apartment was not a part of Bobzien's testimony at the suppression hearing. The transcript indicates that Bobzien testified he saw H.L.S. in handcuffs and seated on the couch in the immediate vicinity of the contraband once he had entered the apartment. Without the critical information as to where H.L.S. was at the time the entry team officers first entered, there was nothing in the record to indicate Bobzien had sufficient facts to independently suspect H.L.S. knew of the presence of the contraband. As such, all that Bobzien could conclude was that H.L.S. was present in the apartment at the same time as the marijuana. The State's argument that Bobzien possessed sufficient cumulative facts upon which he could draw an inference that H.L.S. knew of the presence and the character of the drug fails for lack of any facts in the record that may have been relayed to Bobzien by the entry team as to H.L.S.'s location. While such facts may have been known to Bobzien, those facts were never entered into the record at the suppression hearing.

[*P21] Without the critical facts as to where H.L.S. was at the time the entry team officers entered the apartment, which may well have been known to Bobzien at the time of the arrest, there is nothing to support a finding of probable cause that H.L.S. had the requisite awareness of the presence and the character of the contraband. Without that awareness, it was not possible for a reasonable officer to conclude that H.L.S. intentionally and consciously possessed the drug in common with the other occupants of the apartment. Therefore, law enforcement did not have sufficient probable cause for H.L.S.'s warrantless arrest.

Permalink 08:27:25 am, by fourth, 296 words, 505 views   English (US)
Categories: General

KS: Public housing employees who entered were not state actors for law enforcement

Public housing employees were not shown to be acting at the behest of law enforcement when they entered defendant’s apartment, notwithstanding the public housing’s zero drug tolerance. State v. Brittingham, 42 Kan. App. 2d 859, 218 P.3d 441 (2009):

Because Hutson and Schlesener's status as public housing employees does not automatically invoke Fourth Amendment protections, we must determine whether they independently entered Brittingham's apartment or whether their entry constituted government action. "In deciding whether a private person has become an instrument or agent of the government, two important inquiries are: '(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.'" Pleasant, 876 F.2d at 797.

We note United States v. Couch, 378 F. Supp. 2d 50 (N.D. N.Y. 2005), where off-duty police officers, who were acting in their capacity as representatives of a public housing authority and not as police officers when they performed a lease inspection, were not acting as agents or instruments of the government.

Despite Brittingham's contention that Hutson and Schlesener's entry into his apartment was pretextual because the public housing authority has a zero tolerance drug policy, there is no indication that Hutson's and Schlesener's initial entry into the apartment was for the purpose of finding drugs or was otherwise done at the direction of, or in involvement with, law enforcement. Hutson was not asked by law enforcement to inspect or search the room, and there was no police participation of any kind in Hutson's or Schlesener's entry. Nor is there any evidence that Hutson or Schlesener had any intent to assist law enforcement efforts. Rather, Hutson's entry was a routine maintenance call for the purpose of determining whether the sewage issue had affected Brittingham's apartment.

Permalink 07:57:37 am, by fourth, 351 words, 451 views   English (US)
Categories: General

E.D.Cal.: Gov't's use of emergency doctrine for entry fails

The government failed to show an emergency justification for entry without a warrant. United States v. Espinoza, 2009 U.S. Dist. LEXIS 100783 (E.D. Cal. October 15, 2009):

The Court is not persuaded that either the exigency or emergency exceptions to the warrant requirement justify the officers entering Defendant's home. Significantly, both of those exceptions require some amount of urgency, and the Government has failed to show that any such circumstances existed in this case. As Defendant argues, there were no exigent circumstances or public safety reasons giving rise to an emergency/exigent circumstance to justify entry into the house. The cases cited by the Government can be distinguished. Cf. United States v. Russell, 436 F.3d 1086 (9th Cir. 2006) (Defendant made two calls to police for emergency assistance, he gave two different names in the calls, and he led police to believe that there was another person involved in the shooting); also cf. Brigham City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (Officers observed an altercation inside the house and had a reasonable basis for believing both an injured person may need help and that the violence they observed was just beginning and needed to be stopped). Under similar circumstances to the instant case, the Ninth Circuit found police warrantless entry into a tent was illegal. See United States v. Gooch, 6 F.3d 673 (9th Cir. 1993). Defendant's home deserves more protection.

In addition, the Declaration of Officer Haug that Defendant was asked if anyone else was in the house before police entered is not credible.

Even though a state statute may impose a higher probable cause standard, the Fourth Amendment still governs in a § 1983 case on the level of PC. Holder v. Town of Sandown, 585 F.3d 500 (1st Cir. 2009).

Police, probation, and parole officers could conduct a protective sweep based on the information they had about the premises. United States v. King, 2009 U.S. Dist. LEXIS 100460 (E.D. Wis. April 27, 2009).*

Reasonable suspicion found from being in a high crime area at 3:30 am dressed in gang colors and suspicion of being involved in a stolen vehicle. United States v. Santio, 351 Fed. Appx. 324 (10th Cir. 2009) (unpublished).*

Permalink 07:16:37 am, by fourth, 366 words, 414 views   English (US)
Categories: General

Fourth Amendment news

Privacy of e-mail

On, the Electronic Frontier Foundation's Jennifer Granick, New York Court Scores Over Oregon In Recent Email Privacy Opinions, an excellent perspective of the issues.

Fruit of the Poisonous tree

A discussion of "fruit of the poisonous tree" on CYB3RCRIM3 by law professor Susan Brenner.

Patriot Act Amendments

The USA Patriot Amendments Act of 2009, H.R. 3845, was introduced October 20th, and a letter to the members of the House from many organizations seeking the following privacy law changes to the Patriot Act:

• Protect the privacy of Americans who have no ties to terrorists or spies by ensuring that national security letter authorities are used to obtain records about terrorists, spies, and other agents of foreign powers, instead of records about everyone else;

• Bring procedures for challenging the gag order that often accompanies NSLs into line with the First Amendment, consistent with the December, 2008 Doe v. Mukasey decision of the 2nd Circuit;

• Raise the standard for issuing pen register and trap and trace orders in criminal and intelligence investigations to ensure that the government can access telephone and email to/from information in real time only when specific and articulable facts indicate that the records sought are relevant to an investigation;

• Ensure that Americans receive timely notice that their home or office has been searched for evidence of crime, except when contemporaneous notice would threaten personal safety or result in flight, evidence tampering or witness intimidation;

• Focus FISA surveillance on terrorists, spies and other agents of foreign powers by allowing the “lone wolf” surveillance authority, which has never been used, to expire; and

• Require that FISA surveillance orders that do not name the target of surveillance describe the target with sufficient particularity to allow a court to determine that the target is a particular individual.

Turkmen v. Ashcroft settles

The Center for Constitutional Rights announced today that Turkmen v. Ashcroft settled for $1.26M:

Today, the Center for Constitutional Rights (CCR) announced that five men who had been living in New York and were ultimately deported won a $1.26 million settlement from the United States government in a case challenging post-9/11 racial profiling, illegal detention and abuse of Muslim, Arab and South Asian men.


Permalink 08:24:58 am, by fourth, 338 words, 375 views   English (US)
Categories: General

WA: SI of a car abandoned in flight from police was invalid

Defendant's car was not subject to a search incident where he was being chased by the police and bailed from the car and ran across a drainage ditch before he was captured. The car was left in gear, and an officer put it in gear, turned it off, and removed the keys. State v. Grib, 152 Wn. App. 885, 218 P.3d 644 (2009).* (Is this based on Washington law? Why no abandonment of the car? Virtually every other court would have held that.)

The court "ha[s] significant doubt whether the affidavit here establishes the crucial link between the illegal activity and the victim's home. However, we need not reach that issue directly because we conclude that the 'good faith' exception to the exclusionary rule is applicable in these circumstances." Objectively, the police acted reasonably and in reasonable reliance on the search warrant. People v. Hagos, 250 P.3d 596 (Colo. App. 2009), cert. denied 2011 U.S. LEXIS 2325 (U.S., Mar. 21, 2011).*

Defendant's premises were subjected to a probation search when he wasn't there. The officer had been looking for him for lack of contact, and the officer was admitted by defendant's girlfriend. In the kitchen, he found boxes of ammunition, and that justified a complete search of the premises, and a gun was found. State v. Marks, 28 So. 3d 342 (La. App. 5th Cir. 2009).*

Officers had RS for the investigative detention of the defendant from surveillance of a controlled buy they knew was going down. The frisk of defendant was justified by his past record. United States v. Rafus, 2009 U.S. Dist. LEXIS 100902 (D. Nev. August 24, 2009).*

Although not a "search case" for purposes of this website, of interest is United States v. Sanchez, 586 F.3d 918 (11th Cir. 2009), where the defendants twice burglarized a hydroponic grow operation to steal the marijuana. The government got consent to search the premises from the grow operator. Unanswered is whether the grow operator was immunized or whether he even reported the burglary. Also an issue is cellphone records which were "frivolous[ly]" objected to on an alleged inadequate business record foundation.

Permalink 07:34:34 am, by fourth, 348 words, 350 views   English (US)
Categories: General

Cal.6: SI of house when handcuffed in police car unreasonable

On a Gant remand, the search incident of defendant's house when he was in handcuffs in a police car was unreasonable. If, however, another person were likely present, the situation might be different. People v. Leal, 178 Cal. App. 4th 1051, 100 Cal. Rptr. 3d 856 (6th Dist. 2009):

The handgun found in defendant's home was found in the area that was under his immediate control when he was arrested. The question, though, is whether it was under his immediate control when he was confined in a police car in handcuffs at some distance from the premises. The answer, plainly, is no, and thus the warrantless search was unreasonable under the Fourth Amendment. "'Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.'" (Chambers v. Maroney (1970) 399 U.S. 42, 47.) "[T]he reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house" (ibid.)--nor when the suspect is safely lodged in a police car outside the home.

. . .

This case is different. In contrast to Summers, in which the suspect "was still being removed" (People v. Summers, supra, 73 Cal.App.4th at p. 291), "one roommate was present and free of police control" (ibid.), and "another was unaccounted for" (ibid.), the police here had determined that defendant was the only one on the premises during his arrest and they had safely confined him outside his house and fully secured the scene. Neither he nor anyone else was in a position to jeopardize the officers' safety or destroy evidence. Summers properly stated the general rule, namely that when "there is no threat to the officers because the suspect has been immobilized [and] removed, and no one else is present, it makes no [constitutional] sense that the place he was removed from remains subject to search merely because he was previously there." (Id. at pp. 290-291.) Summers departed from that rule only because the circumstances the case presented were fluid, unstable, and dangerous.


Permalink 11:50:08 am, by fourth, 563 words, 356 views   English (US)
Categories: General

W.D. Mich.: No GFE to Gant

Pre-Gant search was governed by Gant, and “good faith exception” would not be applied to get around it because it would be bad policy and would make Fourth Amendment rights exist merely in the discretion of the police. Fourth Amendment cases almost always are retroactive [Leon sure was]. United States v. Peoples, 668 F. Supp. 2d 1042 (W.D. Mich. 2009):

Expanding the good-faith doctrine to permit reliance on case law would take the exception in a new and untenable direction. It would for the first time permit use of illegally obtained evidence based on the good faith of the officer alone, unchecked by the judgment of either the legislature (as it was in Krull) or the judiciary (as it was in Leon, Evans, and Herring). It would permit an officer to determine whether she has probable cause to search, and then permit her unilateral determination to excuse suppression even after a court determines the search to have violated the Fourth Amendment. This expansion of the doctrine is untenable because good-faith reliance on case law is materially different than good-faith reliance on a warrant. A warrant is specifically addressed to the particular facts and targets at issue, and it is issued in advance of the actual search by the executive branch. Case law, in contrast, is inherently retrospective and focused on a situation other than the one at hand. Reliance on case law necessarily would require an officer to extrapolate from prior scenarios and determine, in the first instance, whether the prior cases are sufficient to establish probable cause in the new matter. This process would be significantly different from excusing the officer's reasonable belief that a warrant exists, reasonable reliance on a later invalidated warrant, or reasonable reliance on a later invalidated statute.

. . .

Permitting a police officer to rely on case law as an excuse to suppression would circumvent the process of obtaining a reliable probable cause determination from a magistrate. Moreover, it would empower the executive branch to conduct an illegal search without penalty so long as the officer could point to a case from which he could reasonably extrapolate that his actions were legal. In short, officers would have the first crack at interpreting the Fourth Amendment and determining what the law permits in a new situation, without risking any sanction if they overstep. This is precisely contrary to the general separation of powers established by the Constitution, and to the particular application of that principle in the Fourth Amendment.

. . .

Extending Leon good-faith to include reliance on court precedent thus involves an interpretive step on the part of the police that is totally absent from and unjustified by any previous Supreme Court application of a good faith exception to the exclusionary rule. It also cuts out of the process the general requirement of neutral, third-party review that is fundamental to protecting the rights guaranteed by the Fourth Amendment. Extending the good-faith exception to cover an officer's good-faith interpretation of case law would in short order become functionally indistinguishable from an exception that applied whenever an officer could establish good faith on most any basis. This would effectively allow the exception to swallow the rule and would seriously undermine the protection of the Fourth Amendment. Accordingly, this Court rejects the Government's request to extend the good-faith exception to include reliance on court precedent.

Comment: Anybody who didn't see Gant coming just wasn't paying attention.

Permalink 11:34:00 am, by fourth, 194 words, 490 views   English (US)
Categories: General

LA5: Person asked for ID who was already parked before police came up can be ignored; he consented

Officers responded to a suspicious persons call and saw the defendant and another. They asked for ID, and the defendant dropped a rock of crack. He was free to ignore the request for ID and leave if he wanted. State v. Butler, 28 So. 3d 317 (La. App. 5th Cir. 2009):

There is no indication in the record that defendant was not free to disregard Deputy Adams when he spoke to him. In fact, Adams's uncontested testimony shows that defendant was not in custody or detained before he dropped or threw down the first white rock. According to Adams, defendant could have gotten into the car and left the scene after he was asked for his identification. The verbal contact, by itself, involved the first tier of Fisher, and did not implicate Fourth Amendment concerns of detention or coercion.

Comment: This is a potentially dangerous holding. What lay person asked for ID knows that he is free to disregard and leave? What lawyer knows that? Apparently only the prosecutor in Jefferson Parish LA. And, if a person drives off and ignores the officer, he runs a risk of getting shot, for no apparent reason other than leaving.

Permalink 10:50:47 am, by fourth, 322 words, 318 views   English (US)
Categories: General

OR: Repeated requests for consent of a passenger made it a seizure

Defendant was a passenger in a car that drove by a house where a search warrant for meth was being executed. Repeated requests for consent to search her purse conveyed that she was not free to leave. State v. Billings, 231 Ore. App. 404, 220 P.3d 65 (2009):

The result in this case is governed by our holding in Anderson, in which we held that the defendant could have reasonably believed that his liberty had been significantly restrained when he was asked for his identification. Id. If anything, the circumstances in this case are more restrictive than those presented in Anderson. Defendant was not only asked for her identification, she was subjected to repeated requests for her consent to allow the trooper to search her purse while the officer reiterated his suspicions regarding her being in the company of a known user of controlled substances and their appearance at a known drug house that was being searched. See, e.g., State v. Toevs, 327 Ore. 525, 536-37, 964 P2d 1007 (1998) (holding that continuing requests for consent to search, among other factors, constituted conduct that was significantly beyond that accepted in ordinary social intercourse). We conclude, therefore, that defendant's belief that the officer unlawfully interfered with her liberty of movement in obtaining her consent to the search of her purse was a reasonable one, if defendant in fact held a subjective belief that she was not free to leave.

Defendant’s husband was stopped by the police and called her. She arrived at the scene and she was effectively and unreasonably “stopped” by the police by questions about her own meth use. State v. Pewonka, 321 Ore. App. 558, 219 P.3d 606 (2009).*

Defendant’s post-conviction IAC claim that she did not understand English and could not have consented was belied by the fact she had been in the U.S. 16 years and had a driver’s license 7 years and her trial testimony. Ayoub v. United States, 2009 U.S. Dist. LEXIS 100567 (E.D. Mich. October 29, 2009).*

Permalink 09:36:48 am, by fourth, 32 words, 858 views   English (US)
Categories: General

Failure of particularity?

Fourth Amendment fail


" . . . 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."

Permalink 07:47:35 am, by fourth, 536 words, 532 views   English (US)
Categories: General

Fourth Amendment news

Blogger didn't read the Fourth Amendment

On the conservative blog American Thinker today is Is Barack Obama Anti-American? stating:

In the Fourth Amendment, the Founders protected American citizens from government overreach that extends into the home. This was the first time in history that a government promised its people that they did not need to fear that their own government would seize their persons, despoil their homes, or steal their property.

What a colossal misreading of the Fourth Amendment. It doesn't say against all seizures and searches--only against unreasonable ones: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ...."

Then there is Wyman v. James, 400 U.S. 309 (1971), which came down when I was in law school, and my head still reels from it. Warren Burger was Chief and Harry Blackmun and he had only recently been appointed (Rehnquist and Powell didn't get appointed until the following year), both by Richard Nixon. The Court on one hand talked about the primacy of the protection of the home from invasions without warrants, but then found that this welfare home inspection was not unreasonable for a host of reasons and concludes with this:

If however, we were to assume that a caseworker's home visit, before or subsequent to the beneficiary's initial qualification for benefits, somehow (perhaps because the average beneficiary might feel she is in no position to refuse consent to the visit), and despite its interview nature, does possess some of the characteristics of a search in the traditional sense, we nevertheless conclude that the visit does not fall within the Fourth Amendment's proscription. This is because it does not descend to the level of unreasonableness. It is unreasonableness which is the Fourth Amendment's standard. Terry v. Ohio, 392 U.S. 1, 9 (1968); Elkins v. United States, 364 U.S. 206, 222 (1960). And Mr. Chief Justice Warren observed in Terry that "the specific content and incidents of this right must be shaped by the context in which it is asserted." 392 U.S., at 9 .

There are a number of factors that compel us to conclude that the home visit proposed for Mrs. James is not unreasonable:

. . .

It seems to us that the situation is akin to that where an Internal Revenue Service agent, in making a routine civil audit of a tapayer's income tax return, asks that the taxpayer produce for the agent's review some proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If the taxpayer refuses, there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully within his "rights" in refusing to produce the proof, but in maintaining and asserting those rights a tax detriment results and it is a detriment of the taxpayer's own making. So here Mrs. James has the "right" to refuse the home visit, but a consequence in the form of cessation of aid, similar to the taxpayer's resultant additional tax, flows from that refusal. The choice is entirely hers, and nothing of constitutional magnitude is involved.

Apparently American Thinker doesn't think too deep. It does, after all, call a former VP candidate a "visionary."

Permalink 01:03:13 am, by fourth, 213 words, 378 views   English (US)
Categories: General

N.D.Ill.: Pro se defendant gets acceptance for going to trial to preserve a search issue for appeal

Pro se defendant who went to trial thinking he had to do so to preserve his computer search claim in a child porn case was still entitled to a two point reduction in his base offense level for acceptance of responsibility. It is apparent he told the truth at the suppression hearing. His argument that the government did not prove its case at trial did not prohibit his receiving acceptance. United States v. Burns, 2009 U.S. Dist. LEXIS 100642 (N.D. Ill. October 27, 2009).

The use of handcuffs during a Terry stop did not make it an arrest. The officer suspected others were involved, and he handcuffed the defendant for his own safety. United States v. Hersey, 2009 U.S. Dist. LEXIS 100537 (N.D. Cal. October 14, 2009).*

The evidence obtained for the PC for the SW adequately showed a marijuana grow operation. [Not even really close.] In any event, good faith would save it. United States v. Tran, 2009 U.S. Dist. LEXIS 100357 (D. Minn. October 9, 2009) (USMJ R&R),* later opinion 2009 U.S. Dist. LEXIS 100335 (D. Minn. October 27, 2009).*

There was sufficient nexus for a search warrant as to defendant where there was wiretap information that showed nexus between defendant and the place to be searched. United States v. Jefferson, 2009 U.S. Dist. LEXIS 100645 (E.D. Wis. August 31, 2009).

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by John Wesley Hall
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2013-14 Term:
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2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

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

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

2009-10 Term:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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