A few blogs go into their "best of the year" list. I've never provided one. With over 830 other posts this year, I must have read 4,000 cases in 2009. Instead, I'll rely on the observations of others:

On the Washington Independent website: Best of 2009: Al Franken Reads 4th Amendment to Justice Department Official, by Daphne Eviatar (reprinted from September 23, 2009).

Officers do not violate Franks by not investigating further to negate what they already know. United States v. Lebowitz, 647 F. Supp. 2d 1336 (N.D. Ga. 2009):

Courts have uniformly rejected defense arguments that further investigation should have been conducted to either corroborate or to negate the information in the affidavit or else the search warrant lacks probable cause. See, e.g., United States v. Shields, 458 F.3d 269, 280 (3rd Cir. 2006) (rejecting the defendant's contention that affidavit lacked probable cause because FBI could have conducted more investigation, the court stated that "[w]hether the FBI could have provided more information is not the benchmark," the question is whether the "valid information it supplies satisfies the 'fair probability' standard"); United States v. Gourde, 440 F.3d 1065, 1072-73 (9th Cir. 2006) (en banc) (finding that the defendant's argument converted the "fair probability" standard to "a test of near certainty[,]" the court held that "Gates, however, does not compel the government to provide more facts than necessary to show a 'fair probability' that Gourde had committed a crime"); United States v. Dale, 991 F.2d 819, 844, 301 U.S. App. D.C. 110 (D.C. Cir. 1993) (rejecting the defendant's argument that probable cause "requires an officer to exhaust every possible lead, interview all potential witnesses, and accumulate overwhelming corroborative evidence"). The question in this case is not whether further investigation would have corroborated the statement in the affidavit that Defendant used his home computer but whether the affidavit's factual statements, based on facts known to the affiant at that time, establish a "fair probability" that the home computer was used to contact the victim.

Likewise, courts have rejected defense arguments that failure to conduct such investigations constitutes a reckless disregard for the truth as required to satisfy the Franks' test. ...

The court erroneously granted the defendant’s motion to suppress under Gant. The object of the search was drugs and Gant recognizes that as a permissible search incident. United States v. Page, 679 F. Supp. 2d 648 (E.D. Va. 2009).*

The Second Circuit affirmed the dismissal of a case over whether the NSA recorded conversations between Gitmo defendants and their lawyers. The government did not even have to admit or deny the existence of the records under the Glomar doctrine. Wilner v. National Security Agency (08-4726-cv December 30, 2009) (Fourth Amendment not cited). See Law.com.

Permitting theft victim to be present at execution of search warrant to identify property was not a violation of the Fourth Amendment. United States v. Gregoire, 2009 U.S. Dist. LEXIS 120803 (D. Minn. December 2, 2009) (USMJ), adopted 2009 U.S. Dist. LEXIS 120801 (D. Minn. December 29, 2009):

The case law discloses a lengthy history of police officers requesting the aid of private citizens in order to accomplish a lawful search, particularly where the citizen is the victim of a theft, who is present to identify stolen items. See, e.g., United States v. Clouston, 623 F.2d 485, 487 (6th Cir. 1980); Bills v. Aseltine, 958 F.2d 697, 706 (6th Cir. 1992)(but finding citizen help unreasonable on the facts at hand); Bellville v. Town of Northboro, 375 F.3d 25, 32-33 (1st Cir. 2004) (recognizing that the use of private citizens in a search is permissible, but only when they are "serving a legitimate investigative function"); United States v. Sparks, supra at 831-32; United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982) ("We refuse to prohibit the police from asking theft victims to identify whether a particular item was stolen from them as long as doing so does not somehow enable the police to intrude into a suspect's privacy vicariously when they could not do so directly.").

Indeed, in Wilson v. Layne, supra at 614, the Supreme Court held that the presence of third parties in a search violates the Fourth Amendment only when "not in aid of the execution of the warrant." Although the Arnolds contacted the police in order to offer their assistance, and not vice-versa, there is no evidence that the Arnolds participated in the search for their own personal reasons. Cf., Bills v. Aseltine, supra at 702 (in civil action, finding Fourth Amendment violation where security officer employee of victim entered home to search for items not on the Warrant, which listed only one target item, which had been found before the security officer arrived). We find no competent authority to support the Defendant's contention, that the Arnolds' presence during the search, in order to identify their stolen property, impermissibly intruded upon the Defendant's privacy beyond the Warrant's authorization.

The fact defendant was dealing drugs from her former residence justifies the conclusion that she would be dealing drugs from her current residence. The affidavit for the search warrant showed probable cause. Impeachment evidence under Brady should have been turned over to the defense before the suppression hearing. In this case, however, it would not make a difference in the outcome. United States v. Best, 2009 U.S. Dist. LEXIS 119802 (M.D. Pa. December 23, 2009).*

Defendant was overheard being told by his brother to bring “snow bunny” into a prison visit as USP-Pollock so his brother could barter for protection. Thus, the prison officials had reasonable suspicion for him when he showed up. Defense counsel was, thus, not ineffective for not challenging his search. United States v. Morris, 2009 U.S. Dist. LEXIS 119766 (W.D. La. October 6, 2009).*

Defendant’s car was stopped with probable cause to believe he was involved in theft, and the stolen property was seen in the car. The stop was thus not governed by the search incident doctrine under Gant. Once the stolen property was found, the officers were not obligated to stop searching. United States v. Southerland, 2009 U.S. Dist. LEXIS 119851 (E.D. N.C. November 13, 2009) (USMJ R&R)*, adopted United States v. Southerland, 2009 U.S. Dist. LEXIS 119844 (E.D. N.C. December 22, 2009) (USDJ).* [The USMJ applied the “good faith exception” to Gant, but the USDJ didn’t even mention if, or have to.]

Defense counsel was not ineffective for not challenging a protective sweep of defendant’s premises after a stand-off with police there. United States v. Jennings, 2009 U.S. Dist. LEXIS 119767 (W.D. La. December 23, 2009).*

Officers had reasonable suspicion to stop defendant when he was seen unconscious or asleep in his car in a middle school parking lot with his pants down. People v. Barrus, 232 P.3d 264 (Colo. App. 2009).*

Search incident after a warrant came back during a traffic stop was unreasonable under the search incident doctrine. Loose panels were seen, and the officer called for a drug dog. [The court analyzed the search incident doctrine at common law and showed how it became twisted through Belton.] State v. Valdez, 167 Wn. 2d 761, 224 P.3d 751 (2009):

A search was permitted incident to arrest under common law based upon concerns for officer safety and to secure evidence of the crime of arrest so as to preserve it for trial. Ringer, 100 Wn.2d at 691-93 (citing Leigh v. Cole, 6 Cox Crim. L. Cas. 329, 332 (Oxford Cir. 1853) and Dillon v. O'Brien, 20 L.R. Ir. 300, 316-17 (Ex. D. 1887)). These justifications permitting a warrantless search incident to arrest are not simply products of judicial fancy, but of principled necessity. Cf. State v. Gunwall, 106 Wn.2d 54, 60, 720 P.2d 808 (1986) (where this court warned against the practice of announcing a decision based upon state constitutional law without establishing the principled basis upon which that decision is founded). The necessity inherent in these justifications is two-fold. First, necessity justifies why the search need be conducted at all. It is necessary to permit a search for weapons or destroyable evidence where a risk is posed because, should a weapon be secured or evidence of the crime destroyed, the arrest itself may likely be rendered meaningless--either because the arrestee will escape physical custody or because the evidence implicating the arrestee will be destroyed. Ringer, 100 Wn.2d 692-93 (citing Leigh, 6 Cox Crim. L. Cas. at 332 and Dillon, 20 L.R. Ir. at 316-17). Second, necessity justifies the search incident to arrest being done without a search warrant. Quite simply, time is of the essence. In some circumstances, a delay to obtain a search warrant might be shown to provide the opportunity for the arrestee to procure a weapon or destroy evidence of the crime.

However, the search incident to arrest exception has been stretched beyond these underlying justifications, permitting searches beyond what was necessary for officer safety and preservation of the evidence of the crime of arrest. This trend in article I, section 7 jurisprudence was substantially adopted from a similar trend in Fourth Amendment jurisprudence. See Stroud, 106 Wn.2d at 160-64 (Durham, J., concurring in the result); Ringer, 100 Wn.2d at 690-99. As characterized by Justice Frankfurter in the Fourth Amendment context, the trend of cases "merely prove[s] how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision." United States v. Rabinowitz, 339 U.S. 56, 75, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J., dissenting).

Questioning defendant and seeking consent without reasonable suspicion to continue the stop made it an unreasonable seizure. State v. Berry, 232 Ore. App. 612, 222 P.3d 758 (2009).

Officers had reasonable belief person wanted in arrest warrant for violation of supervised release was on the premises of the place entered, so the entry was valid. United States v. Pretends Eagle, 2009 U.S. Dist. LEXIS 120206 (D. Neb. December 23, 2009).*

Stop of car at a sobriety checkpoint was validly extended because the car matched a BOLO from an hour earlier about a robbery. United States v. Jackson, 680 F. Supp. 2d 772 (S.D. W.Va. 2009):

In considering the totality of the circumstances, this Court has little difficulty finding this initial stop was constitutional. The officers knew there was a recent armed robbery in close proximity to the checkpoint, the suspects were a white female and black male, and they were the only couple fitting that description that had gone through the checkpoint. Although Corporal Poff was mistaken that the robbery had "just occurred," the Court finds that even if he had known it had occurred approximately an hour earlier, it was still sufficiently close in time that it would not prohibit the initial investigatory stop.

Once stopped, the officers on the scene collected Ms. Gilman's driver's license and proof of insurance and waited approximately five to eight minutes for Corporal Poff to return. After he arrived, he explained to Ms. Gilman and the defendant that they fit the racial profile of armed robbers. They were then asked to get out of the car and patted down for officer safety. Although the duration of the detention is lengthening, the Court finds that a patdown for officer safety was reasonable in that they knew the robbers were armed. See Arizona v. Johnson, 129 S. Ct. 781, 787 (2009) (affirming that officers conducting traffic stops may patdown a passenger if there is reasonable suspicion the passenger may be armed and dangerous). However, the officers found nothing unusual or suspicious during the patdown and there was not anything of a suspicious or incriminating nature in plain view in the car. Nevertheless, the officers separated Ms. Gilman and the defendant and put them in the back of different police cruisers and both were given their Miranda rights. Clearly, Ms. Gilman and the defendant remained seized during this entire time as a reasonable person would not have felt like he or she could walk away from the situation.

A national park road audit validly stopped a DWI. The park service sets up checkpoints out of sight of the entrance booth to verify that all cars entering had paid the required fees. No shortages had ever been found at this park, but they have been elsewhere in the country. (This was not a law enforcement roadblock in enforcing the law against drivers.) United States v. Rodriguez, 2009 U.S. Dist. LEXIS 119687 (S.D. Tex. December 23, 2009):

Additionally, several cases similar to this action have come before the Ninth Circuit. That court has determined that a checkpoint stop by a federal ranger was reasonable where the purpose was to distribute litter bags, "which included regulations concerning campfires for fire safety, refuse disposal for litter control, and camp restrictions." United States v. Faulkner, 450 F.3d 466, 470 (9th Cir. 2006); see also United States v. Hawkins, 249 F.3d 867, 873 (9th Cir. 2001) (because "the military has a substantial interest in preventing theft of its property and in ensuring national security," a fixed "checkpoint advanced a substantial public interest"); Freece v. Clackamas County, 442 F. Supp. 2d 1080, 1087 (D. Or. 2006) (brief seizure to enable ranger "to talk to park users about littering, with the goal of reducing littering" was reasonable). Moreover, in United States v. Fraire, 575 F.3d 929 (9th Cir. 2009), the Ninth Circuit addressed a vehicle checkpoint in the Kings Canyon National Park that was designed "to counter illegal hunting within that park." Id. at 933. The court concluded that public interest in wildlife protection as well as visitor safety were pressing concerns. Id.

Second, the public interest must be balanced against the individual's privacy and liberty interests. Sitz, 496 U.S. at 450; Collins v. Ainsworth, 382 F.3d 529, 539 (5th Cir. 2004). Courts must address the "effectiveness of the checkpoint program. Sitz, 496 U.S. at 453-55. For example, checkpoints have been found constitutional when they resulted in 1.5 percent of drivers being found to be intoxicated, id. at 454-55; and .12 percent of cars being found to contain illegal aliens. Martinez-Fuerte, 428 U.S. at 554.

Anal cavity bombs? Body cavity airport searches?

I'm sitting at the Newark-Liberty International Airport, and I had a discussion with my wife about two hours ago about a cell phone search case where the prison officials went after a cell phone in an anal cavity by surgery. If one can hide a cell phone there, why not the ingredients to a bomb?

Then, I see on Skating on Stilts, referenced on Volokh Conspiracy, is the comment that the underwear bomber might have had it hidden in his rectum. Frankly, that post was not seen by me until ten minutes ago, but we're thinking the same thing.

So, full body searches of everybody? On international flights, the flight attendants sound like officers who pulled over a suspicious vehicle: "Keep your hands where I can see 'em!"

TSA will make the public hate flying more than it already does. I fly 30 round trips a year, and I used to roll with it. Now we'll see how things change. No change at TSA at Newark tonight, but they are supposed to keep us all guessing.

And the President says that there were systemic and human failures in letting the underwear bomber get on a flight to the U.S. Well, Duh! We keep lists but don't use them. Amsterdam Schipol has good security, but this guy gets through. I've been through that airport's security at least eight times. They know what they are doing.

New Technologies and the Fourth Amendment

On Journal of Online Technology (JOLT Digest): New Technologies and the Fourth Amendment by Eric Engle:

New technologies have made types of searches possible which could never have been envisioned when the Fourth Amendment was proposed to prohibit unreasonable search and seizure. With remote listening, infrared imaging, and, now, wireless technologies, it is possible to detect movements of people within buildings with no discernible physical impact on the surveilled person’s life. Are remote searches reasonable? Do they require a warrant? In my opinion, courts should treat these sorts of remote detection techniques (“surveillance”) as searches subject to the Fourth Amendment’s requirement of reasonableness.

In light of the underwear bomb, on Politico.com by Glenn Trush is Will Chaffetz amendment haunt House? where libertarian conservatives and some liberals voted against the use of full body scan airport imaging in a TSA appropriations bill. It died in the Senate without coming to a vote.

Back in early June, Utah Republican Rep. Jason Chaffetz inserted a little-noticed, widely popular amendment into the House's massive Homeland Security appropriations bill barring the use of full-body image scans as "primary" screening tools at airports.

The amendment, which died in the Senate, passed on a bipartisan 310-to-118 vote, with conservative libertarians joining liberals, all decrying the scans as a major invasion of privacy. The amendment was backed by a nearly irresistible coalition of interest groups, ranging from the American Civil Liberties Union to the National Rifle Association.

It would also have given passengers the option of getting a pat-down — which might have also detected the Christmas bomb — while banning the storage and copying of the images, which show a virtual picture of a person's naked body.

See HR 2200, § 215 (June 4, 2009):

SEC. 215. LIMITATIONS ON USE OF WHOLE-BODY IMAGING TECHNOLOGY FOR AIRCRAFT PASSENGER SCREENING.

Section 44901 of title 49, United States Code, is amended by adding at the end the following:

"(l) Limitations on Use of Whole-Body Imaging Technology for Screening Passengers--

"(1) IN GENERAL- The Assistant Secretary of Homeland Security (Transportation Security Administration) shall ensure that whole-body imaging technology is used for the screening of passengers under this section only in accordance with this subsection.

"(2) PROHIBITION ON USE FOR ROUTINE SCREENING- Whole-body imaging technology may not be used as the sole or primary method of screening a passenger under this section. Whole-body imaging technology may not be used to screen a passenger under this section unless another method of screening, such as metal detection, demonstrates cause for preventing such passenger from boarding an aircraft.

. . ."

In other TSA news, the person nominated to be director of TSA, a former FBI Agent and counterterrorism expert, has been held up in the Senate by Sen. DeMint (R.-SC). He's on Wolf Blitzer's show on CNN this afternoon to talk about it.

Suspicion of illegal drug activity alone does not justify handcuffing the defendant. The fact that drugs and weapons may go hand in hand in some situations does not elevate this situation to justifying handcuffing. State v. Pickens, 2010 WI App 5, 323 Wis. 2d 226, 779 N.W.2d 1 (2009):

P31 Notably, the State does not develop an argument that the suspicion of illegal drug activity alone justified handcuffing Pickens. In the absence of full briefing, we choose not to decide the issue. We note, however, that our research indicates that we would likely reject such an argument. Although courts have frequently observed that illegal drugs and weapons go hand in hand, reasonable suspicion of drug activity is not, by itself, generally a sufficient indicator of dangerousness to justify the level of restraint police imposed on Pickens. See United States v. Acosta-Colon, 157 F.3d 9, 19 (1st Cir. 1998) (generalized reasonable suspicion related to drug trafficking not enough to establish that handcuffing was reasonably measured response to actual safety concerns); United States v. Melendez-Garcia, 28 F.3d 1046, 1052-53 (10th Cir. 1994) (acknowledging that "[d]rugs and guns and violence often go together," but concluding that "the naked fact that drugs are suspected will not support a per se justification for use of … handcuffs in a Terry stop").

P32 The use of handcuffs or other restrictive measures does not necessarily render a temporary detention unreasonable, nor does it necessarily convert that detention into an arrest. See State v. Vorburger, 2002 WI 105, P64, 255 Wis. 2d 537, 648 N.W.2d 829. However, as we have explained, such measures generally are reasonable only when particular facts justify the measure for officer safety or similar concerns. See 4 WAYNE R. LAFAVE, SEARCH & SEIZURE 9.2(d), at 310-13 (4th ed. 2004).

P33 In sum, we conclude that the State failed to show that the level of restraint used to detain Pickens was reasonable because the State points to no specific, articulable facts that justify handcuffing and securing Pickens in a squad car. In the absence of any other developed argument supporting admission of evidence obtained from Pickens in the parking lot, we conclude that that evidence must be suppressed. 5

5 A number of courts have concluded that police exceeded the permissible scope of a temporary detention in circumstances that we find at least as compelling as those here. See United States v. Richardson, 949 F.2d 851, 856-58 (6th Cir. 1991) (suspect was approached by four police officers, informed he was the subject of a drug investigation, and briefly questioned; after he would not consent to a search, the valid stop became unlawful when police proceeded to secure him in back of police car and continue questioning); United States v. Neatherlin, 66 F. Supp. 2d 1157, 1162 (D. Mont. 1999) (when officer had reasonable suspicion of illegal border crossing and made stop in remote area in the middle of the night, there were reasonable concerns for officer safety, but handcuffing suspect and placing him in officer's vehicle nonetheless exceeded the boundaries of investigatory detention), aff'd, 243 F.3d 551 (9th Cir. 2000) (Nos. 00-30007 and 00-30020); Cocke v. State, 889 So. 2d 132, 133-35 (Fla. Dist. Ct. App. 2004) (leaving suspect in handcuffs and placing him in squad car for thirty to forty-five minutes transformed stop into de facto arrest when police had found no weapons after conducting pat down, suspect did not resist or act belligerent, and officer expressed no other reason to be concerned for safety); State v. Pannell, 127 Idaho 420, 901 P.2d 1321, 1325-26 (Idaho 1995) (even when there was "some evidence" that suspect "might have posed a threat to the officer's safety," handcuffing suspect and placing him in patrol car exceeded level of force justified for an investigatory detention when pat down revealed no weapons and suspect was fully compliant at all times).

Federal law should govern a federal NCIS search on a military base for evidence of a murder of a civilian employee on the base that ends up prosecuted in state court. The court finds that this is a narrow issue in this case. The security search of defendant’s car on the military base was also valid. State v. Torres, 122 Haw. 2, 222 P.3d 409 (2009), amended by, reconsideration granted by 2010 Haw. App. LEXIS 1 (Haw. Ct. App., Jan. 4, 2010)
.

We further conclude that Sergeant Rozkiewicz's security inspection of Torres's car was lawful based on Torres's implied consent and that the Command Authorization validly authorized the subsequent full-scale search by federal agents. Based on federal appellate court decisions involving searches in analogous circumstances on military bases, we hold that Torres implicitly consented to the search of his car, at least to the extent of the security inspection conducted by Sergeant Rozkiewicz.

Defendant was not seized by the officer. The officer was parked far away from the defendant and walked up to him and talked to him. The encounter was consensual. State v. Williams, 2009 N.C. App. LEXIS 2328 (December 22, 2009).*

Dog sniff within five minutes of stop was reasonable. Becoats v. State, 301 Ga. App. 768, 688 S.E.2d 686 (2009).*

After a valid traffic stop, defendant was asked if he would consent to a search of the car, which he agreed to. He was handcuffed and stuck in a police car during the search. While in there, he abandoned a bag of cocaine which was found after he was permitted to drive off. His detention was unreasonable and led to the abandonment. The 30 minute handcuffing for a consent search was unreasonable. Hidelgo v. State, 25 So. 3d 95 (Fla. App. 3d DCA 2009).

As evidence to seize in a search warrant, “evidence of sexual abuse” was “inartful” but not so bad that seizure under the warrant should be suppressed. State v. Tolen, 304 S.W.3d 229 (Mo. App. 2009).*

Mere eye contact with the police is not a seizure. “Therefore, evidence of his reaction to the police, clutching movements at his waistband, his flight, and the gun and magazine should have all been suppressed because the police lacked reasonable grounds for suspicion that the defendant was committing a crime. We disagree.” Commonwealth v. Ware, 76 Mass. App. Ct. 53, 918 N.E.2d 861 (2009).*

Officer did not violate the Fourth Amendment by entering defendant's patio and getting his attention through his sliding glass door. The officer followed the defendant's own route through the snow. The officer was investigating a DWI from a security guard that saw defendant stuck in a snowbank. State v. Perkins, 2009 UT App 390, 222 P.3d 1198, 646 Utah Adv. Rep. 14 (2009):

[*P23] The Dunn factors weigh against a determination that "the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." United States v. Dunn, 480 U.S. 294, 301 (1987). Furthermore, Perkins had the burden of demonstrating that he had an expectation of privacy in the patio itself. See United States v. Cavely, 318 F.3d 987, 994 (10th Cir. 2003). He has not carried that burden. Consequently, we hold that, under the facts of this case, Perkins's back patio is not part of the curtilage of the home, which would require a warrant for entry. As a result, Officer Lealaitafea's entrance onto the patio, after following Perkins's own path to the home, for the purposes of detaining Perkins to investigate a reliable tip that Perkins had been driving under the influence of alcohol, did not constitute a warrantless entry into Perkins's home.

In an internet traveler case where the defendant came from SC to KY, there was reason to believe that evidence would be found in his home in SC where the chats occurred after he was arrested in KY. United States v. Hill, 2009 U.S. Dist. LEXIS 119400 (W.D. Ky. December 22, 2009).*

Probable cause existed for defendant’s stop from a missing front license plate. After the stop, the defendant rolled down his window and marijuana smoke billowed out, and that was PC for search of the car. United States v. Dolson, 2009 U.S. Dist. LEXIS 119182 (D. Minn. August 10, 2009).*

Officer was justified stopping a man in a suit with a gun in a holster walking toward an "important public building." That man was a criminal defense lawyer. This is what Terry is for. The officer also did not violate the lawyer's rights by pointing a gun at him. Schubert v. City of Springfield, 589 F.3d 496 (1st Cir. 2009):

. . . The fact remains, however, that the officer saw a man carrying a gun in a high-crime area, walking toward an important public building.

Schubert contends that his clothing, his age, and the fact that he was carrying a briefcase are factors that should undercut the reasonableness of Stern's suspicion. We are not persuaded. A Terry stop is intended for just such a situation, where the officer has a reasonable concern about potential criminal activity based on his "on-the-spot observations," and where immediate action is required to ensure that any criminal activity is stopped or prevented. Terry, 392 U.S. at 20. We need not outline in detail the obvious and potentially horrific events that could have transpired had an officer noted a man walking toward the courthouse with a gun and chosen not to intervene.

The exclusionary rule did not apply to a forcible entry and detainer action to remove defendant from a publicly owned apartment building for drug usage on the premises. United States Residential Mgmt. & Dev. v. Head, 397 Ill. App. 3d 156, 922 N.E.2d 1, 337 Ill. Dec. 143 (2009):

The present case is distinguishable from One 1958 Plymouth Sedan. Here, the focus of the Act is not to punish defendant, but rather to set forth a mechanism for the peaceful adjudication of possession rights in the circuit court. In addition, while defendant may be subjected to a harsh consequence – losing his residence–-this consequence does not transform this civil proceeding into a quasi-criminal proceeding. When the Supreme Court denied extending the exclusionary rule in Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984), and in Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357, 141 L. Ed. 2d 344, 118 S. Ct. 2014 (1998), the possible sanctions were deportation and incarceration, respectively. These sanctions, while harsh, did not transform the civil proceedings into quasi-criminal proceedings. These sanctions are also equally, if not more, harsh than losing one’s residence.

. . .

Balancing the factors in the present case, we conclude that the exclusionary rule should not be extended to encompass the present situation. The cost to CHA and the truth-finding process outweigh the benefit which would result from the application of the exclusionary rule in forcible entry and detainer actions. By applying the exclusionary rule in the present case, CHA would be unable to consider valuable and relevant evidence of potential criminal activity that would impede the truth-finding function of the circuit court. To extend the rule and suppress evidence of criminal activity would hinder CHA’s ability to enforce lease agreements designed to promote safety and deter illegal conduct in public housing communities. This rationale is consistent with the concerns of the Illinois General Assembly in implementing the Act, which was to protect persons at public housing premises from “imminent danger and peril to [their] lives, safety, health and mental and physical well being.” Pub. Act 87–0933, eff. August 27, 1992 (adding 735 ILCS 5/9–118). The circuit court failed to incorporate this half of the analysis under the exclusionary rule balancing test.

A vehicle license check that shows that the registered owner of a vehicle has a suspended drivers license is reasonable suspicion for a stop, unless it is obvious that the driver could not be the registered owner. Armfield v. State, 918 N.E.2d 316 (Ind. 2009):

The safety of Indiana's roadways strongly points toward initiating a Terry stop when the police officer knows that the registered owner of a vehicle has a suspended license. But this legitimate public safety concern is, of course, subject to the Fourth Amendment right to be secure from unreasonable searches and seizures. We believe that this right is vindicated by requiring that officers must be unaware of any evidence or circumstances which indicate that the owner is not the driver of the vehicle before initiating a Terry stop.7

7 Courts in other jurisdictions have provided helpful examples of evidence or circumstances which indicate that the owner is not the driver of the vehicle. The Minnesota Supreme Court posited this hypothetical:

[I]f the officer knows that the owner of a vehicle has a revoked license and further, that the owner is a 22-year-old male, and the officer observes that the person driving the vehicle is a 50- or 60-year-old woman, any reasonable suspicion of criminal activity evaporates. Absent other articulable facts which would give rise to such suspicion, it would be unconstitutional for the officer to make a stop in such a situation.

Pike, 551 N.W.2d at 922. The Supreme Judicial Court of Maine has noted that "if the driver were of a different gender than the owner, the officer would lack reasonable grounds to assume the owner was driving." Tozier, 905 A.2d at 839 n.1 (citing Jones, 678 N.W.2d at 631 n.4 ("[I]f the registered owner was a male and the driver was a female, the officer would not have reasonable grounds to assume that the driver was the owner.")). We agree with these courts that under such circumstances, the officer would lack reasonable suspicion to initiate a Terry stop.

We hold that an officer has reasonable suspicion to initiate a Terry stop when (1) the officer knows that the registered owner of a vehicle has a suspended license and (2) the officer is unaware of any evidence or circumstances which indicate that the owner is not the driver of the vehicle. This rule does not require officers to match the physical description of the registered owner from the license plate check to the driver of the vehicle before initiating a Terry stop. We agree with the State that "requiring the officer to verify the driver of the vehicle strikes against basic principles of safety [because it] puts the onus on the officer to maneuver himself into a position to clearly observe the driver in the midst of traffic." (State's Resp. to Accept Transf. 5.) In addition, we acknowledge the difficulty that the driver verification requirement would impose on officers during late night hours and in situations where car windows are darkly tinted, as was the case here.

Accord: Holly v. State, 918 N.E.2d 323 (Ind. 2009).

Defendant was arrested for DWI by a non-commissioned officer dispatched by the local police department to investigate defendant’s accident. While the officer lacked statutory authority to arrest, the arrest was still valid a citizen’s arrest and did not violate the Fourth Amendment. State v. Slayton, 2009 NMSC 54, 223 P.3d 337 (2009).

The search warrant for defendant’s house was issued for “mere evidence” (Warden v. Hayden), his green card, to show that he was not always in possession of it, and it was lawful under Rule 41(c)(1). ("A warrant may be issued for any of the following: [¶] (1) evidence of a crime; [¶] (2) contraband, fruits of crime, or other items illegally possessed; ...."). United States v. Doueihi, 2009 U.S. Dist. LEXIS 118693 (S.D. N.Y. December 16, 2009).*

Defendant’s gratuitously participating in the search was evidence of his consent. United States v. Savage, 2009 U.S. Dist. LEXIS 118696 (S.D. N.Y. December 16, 2009).*

Defense counsel was not ineffective in failing to pursue every conceivable inconsistency in the police statements because they were not material and the outcome would not change. United States v. Altamirano-Quintero, 2009 U.S. Dist. LEXIS 119064 (D. Colo. September 4, 2009)*:

Additionally, the fact that defendant's erstwhile counsel did not challenge every possible alleged inconsistency between the version of events offered by the police and that understood by defendant is inconsequential. Almost all of the alleged inconsistencies to which the defendant pervicaciously clings involved collateral or imponderous matters. Assuming arguendo that defense counsel had presented the evidence found most relevant by defendant, the result ineluctably would have been the same ....

A peak into the garage window to see if defendant’s SUV was parked there in looking for the defendant shortly after a murder was not an unreasonable search. State v. Herring, 387
S.C. 201, 692 S.E.2d 490 (2009):

Under the circumstances presented, we find the exigencies of the situation justified Officer Linfert's look into Herring's garage at 2:00 a.m. It is undisputed that police had knowledge of Herring's identity, his residence, the make and model of his vehicle, and his license tag number. Officer Linfert testified that upon arriving at the home, he saw a light on in the garage and therefore looked through the window to see if the suspect was inside. Police officers were looking for a suspected murderer whom they knew was likely to be armed with a deadly weapon.

We find it was objectively reasonable for Officer Linfert to take precautions to protect his own safety, and the safety of the officers around him, by looking into the garage to see if the suspect was there. When nobody was in the garage, police followed proper procedure by knocking on the door and ringing the doorbell. Receiving no answer, they stationed men at the house and went to obtain a warrant. Given the exigent circumstances then and there presenting, we find Officer Linfert's minimal intrusion was objectively reasonable and did not constitute a Fourth Amendment violation. Cf. Chimel v. California.

Moreover, Officer Linfert's peek into the garage yielded no evidence against Herring. Police already had knowledge of the make, model and license plate number of the vehicle the suspect drove; they knew the automobile was registered to Herring, and they knew his residential address was 406 Alexander Circle. Officer Linfert's observation of the vehicle in the garage yielded no evidence which further inculpated Herring. We find the trial court erred in holding this initial "search" violated Herring's Fourth Amendment rights; the de minimis intrusion to secure the officers' safety did not necessitate suppression.

My nephew, who is a computer whiz, and was at 10 years old, found this website wouldn't open on his iPhone. So, he goes to the coding and finds tracks from a hacker which he disabled. Now it opens on an iPhone again.

And, I posted this from my iPhone.

The officer lacked reasonable suspicion to keep detaining defendant as long as he did until a drug dog could arrive at the scene. The defendant was followed by another officer for 16 miles who saw no traffic offense, so he called ahead to this officer who ultimately stopped him. United States v. Bonilla, 357 Fed. Appx. 693, 2009 FED App. 0816N (6th Cir. 2009) (unpublished) (2-1)*:

The instant case lacks any strong indicators of criminal conduct other than minor actions by Bonilla that are generally present when a driver is pulled over. Bonilla's failure to promptly provide the officer with his passenger's correct information was not particularly indicative of criminal activity. Thus, the totality of the circumstances did not give rise to a reasonable suspicion that Bonilla was transporting drugs in his vehicle at the moment when Bemis stopped writing the traffic citation and placed Bonilla and his passenger in police cruisers.

Since we conclude that no reasonable suspicion was present at the inception of the detention on suspicion of transporting drugs, the detention was an unlawful seizure and we do not need to address the second part of the Terry analysis, whether the time and intrusiveness of the stop were reasonable. See Davis, 430 F.3d at 354. The fact that Bemis only detained Bonilla for a short period of time when he ceased writing the ticket and placed Bonilla and his passenger in police cruisers is irrelevant since Bemis lacked reasonable suspicion to do so. Thus, the district court erred in determining Bemis's detainment of Bonilla for a short period of time was reasonable.

Defense counsel was not shown to be ineffective for not negotiating a conditional plea. There is no right to a conditional plea, and the government would have had to have agreed with it. Defendant never suggested to defense counsel that he wanted to appeal. United States v. Carvajal-Mora, 2009 U.S. Dist. LEXIS 118523 (N.D. Okla. December 21, 2009).*

Defendant’s search argument was belatedly raised ten years late in a post-conviction IAC claim that should have been raised earlier. It is defaulted. State v. Billiter, 2009 Ohio 6788, 2009 Ohio App. LEXIS 5698 (5th Dist. December 22, 2009).*

The description of a tall bald man carrying an assault rifle was sufficiently correct to show reasonable suspicion. While defendant was not carrying an assault rifle, he had a container that could have contained a broken down assault rifle. State v. Watson, 2009 Ohio 6713, 2009 Ohio App. LEXIS 5631 (3d Dist. December 21, 2009).*

Defendant’s traffic offense of an illegal turn justified his stop. State v. Melone, 2009 Ohio 6710, 2009 Ohio App. LEXIS 5637 (11th Dist. December 18, 2009).*

No hearing was required on defendant’s motion to suppress a search warrant for lack of probable cause because it can be determined on the papers, and there was probable cause for this search. United States v. Riley, 2009 U.S. Dist. LEXIS 119198 (D. Nev. November 23, 2009).*

Where the offense alleged in the affidavit for search warrant was harboring illegal aliens for commercial advantage in a complex scheme, there was reason to believe there would be business records kept there. United States v. Mireles, 2009 U.S. Dist. LEXIS 119107 (W.D. N.Y. November 23, 2009) (USMJ R&R).*

Forced surgery to find a cell phone in plaintiff prison inmate's rectum was shown to be an unreasonable search. It was not just a "medical procedure." Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009):

1. Were the Procedures Performed at the Medical Center "Searches" Within the Scope of the Fourth Amendment?

To determine whether the rectal examinations and the exploratory surgery implicated the Fourth Amendment, we must first determine whether they constituted searches for evidence or legitimate medical procedures. As will be discussed further below, it is impossible to reconcile the allegations in the complaint with the district court's conclusion that these procedures were "medical decisions made exclusively by physicians." According to the complaint, the procedures were carried out at the insistence of correctional officials for the purpose of finding a cell phone in plaintiff's rectum.

The procedures were the direct culmination of a series of searches that began when a metal detector used to scan plaintiff's person gave a positive reading. The complaint describes the surgery as "medically unnecessary," and explains circumstances supporting that claim, namely that plaintiff had two normal bowel movements before the searches were conducted, that Dr. Roe III examined him upon arrival at the hospital and found him to be asymptomatic, and that several lab tests ordered by Dr. Roe III were found to be "within normal limits." Because the procedures described in the complaint were searches for evidence, they are properly analyzed under the framework of the Fourth Amendment.

2. Did the Searches Violate the Fourth Amendment?

"The applicability of the Fourth Amendment turns on whether 'the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy' that has been invaded by government action.'" Hudson v. Palmer, 468 U.S. 517, 525 (1984) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979) (other quotation marks omitted)). In the prison context, prisoners are "accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration." Id. at 523. We have recognized that a limited right of bodily privacy against searches is not incompatible with incarceration. Cookish v. Powell, 945 F.2d 441, 446 (1st Cir. 1991) (per curiam) ("[S]ome Fourth Amendment protection [i]s available to inmates as to their persons."). A reviewing court must "'balanc[e] the need for the particular search against the invasion of personal rights that the search entails.'" Id. (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). Mindful of this principle, we analyze the rectal exams and the surgery separately, concluding that the rectal exams did not violate plaintiff's Fourth Amendment rights, but the surgery did.

Boston College Police are state actors subject to the constitution in general but not when they conducted a search under the "Conditions for Residency" for a reported weapon possessed in violation of school policy. Drugs were found, and admissible in a criminal proceeding. The defendant consented after consulting with his father. Commonwealth v. Carr, 76 Mass. App. Ct. 41, 918 N.E.2d 847 (2009):

Boston College's Conditions for Residency 2007-2008 also provides:

"RIGHT OF ENTRY

"The University reserves the right to enter resident student rooms and conduct a plain view search for: reasons of health, maintenance, upholding community standards (including safety and discipline) or inspections. Regular inspections will be conducted by staff in all areas. Except in cases of an emergency, a complete search of the contents of a student's room will only be made with: (a) his/her consent; (b) with a University Search Warrant issued by the Vice President for Student Affairs or his/her designee; or (c) with a duly authorized search warrant from a local court."

Applying the principles set forth in Leone to the circumstances here, we hold that while the Fourth Amendment and art. 14 apply to the conduct of Boston College's campus police, in this circumstance the officers' private function affects the constitutionality of their conduct and renders it reasonable. See Commonwealth v. Leone, 386 Mass. at 334-338 (decided solely on Fourth Amendment grounds). See also Commonwealth v. Considine, 448 Mass. at 301, nn.13-14 (1997) (suggesting in dictum that any search or seizure of contraband by State police officer acting on invitation of private school officials is permissible). The initial entry into the defendants' room and the discovery and seizure of the facsimile handgun and other weapons were actions reasonably undertaken by the police on behalf of the legitimate interests of their employer Boston College, a private institution and not a State actor. See Commonwealth v. Leone, 386 Mass. at 335-336. In consequence, their entry into the room without a search warrant does not offend Federal or State constitutional requirements.

The entry was not in furtherance of a criminal investigative function, but to address a violation of Boston College's policy that prohibited weapons in the dormitory (whether lawful or unlawful, real, or counterfeit) and authorized confiscation of such items found in plain view. The police acted on reliable information from two identified students that Carr, who resided in room 114 Gonzaga Hall, possessed a knife. Adding to the concern was the report that another student had seen a gun or the butt of a gun inside Carr's room. Although the report of the gun, being anonymous, lacked the reliability of that regarding the knife, the fact that the police harbored concern of an even more serious infraction is immaterial. See Commonwealth v. Blevines, 438 Mass. 604, 608 (2003) (officer's subjective purpose not relevant when search permissible on objective standard).

"DEAR EDITOR: I am 8 years old.
"Some of my little friends say there is no exclusionary rule.
"Papa says, 'If you see it in THE SUN it's so.'
"Please tell me the truth; is there an exclusionary rule?

"VIRGINIA O'HANLON.
"115 WEST NINETY-FIFTH STREET."

VIRGINIA, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe except [what] they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be judges’ or policemen's, are little. In this great universe of ours man is a mere insect, an ant, in his intellect, as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, VIRGINIA, there is an exclusionary rule. It exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. Alas! how dreary would be the world if there were no exclusionary rule. It would be as dreary as if there were no VIRGINIAS. There would be no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.

Not believe in the exclusionary rule! You might as well not believe in fairies! You might get your papa to hire people to watch in all the courts in America to catch the exclusionary rule, but even if they did not see the exclusionary rule, what would that prove? Nobody sees the exclusionary rule, but that is no sign that there is no exclusionary rule. The most real things in the world are those that neither judges nor police can see. Did you ever see fairies dancing on the lawn? Of course not, but that's no proof that they are not there. Nobody can conceive or imagine all the wonders there are unseen and unseeable in the world.

You may tear apart the baby's rattle and see what makes the noise inside, but there is a veil covering the unseen world which not the strongest man, nor even the united strength of all the strongest men that ever lived, could tear apart. Only faith, fancy, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, VIRGINIA, in all this world there is nothing else real and abiding.

No exclusionary rule! Thank God! it lives, and it lives forever. A thousand years from now, Virginia, nay, ten times ten thousand years from now, it will continue to make glad the heart of civil libertarians.

Or will it, Virginia? for it is up to you, and me, and our brothers and sisters at the bar to keep the exclusionary rule alive so judges and police will respect the Fourth Amendment. Without an exclusionary rule, there will be no longer be a Fourth Amendment.

Apologies to Francis Pharcellus Church.

Good faith exception applied to a pre-Gant search incident. Alternatively, other exceptions would apply. United States v. McGhee, 672 F. Supp. 2d 804 (S.D. Ohio 2009):

The circuits which have addressed the issue of whether new limitations on searches should be applied retroactively are divided. Compare United States v. Gonzalez, 578 F.3d 1130, 1133 (9th Cir. 2009) (Gant applied retroactively) with United States v. Deitz, 577 F.3d 672, 687-88 (6th Cir. 2009) (rejecting defendant's Fourth Amendment argument concerning a warrantless search of his briefcase, noting that although the search violated Gant, the officers' conduct was lawful in 1998 when the stop occurred); United States v. McCane, 573 F.3d 1037, 1042-45 (10th Cir. 2009) (good faith exception applied to law enforcement actions rendered invalid under Gant which were previously lawful under circuit precedent); United States v. Jackson, 825 F.2d 853, 865-66 (5th Cir. 1987) (good faith exception applied in light of officers' reasonable reliance on prior circuit law regarding warrantless searches at checkpoint). This court concludes that even if the search is characterized as a search pursuant to defendant's arrest, the exclusionary rule should not be applied in this case, since, at the time of the events in question, the vehicle could have been legally searched pursuant to defendant's arrest under the existing precedent of the Sixth Circuit, and there is no evidence that the officers acted in bad faith in performing the search.

Even if the exclusionary rule would apply to a search of the vehicle incident to defendant's arrest, the government argues that other exceptions to the Fourth Amendment warrant requirement apply to justify the warrantless searches of the defendant and his vehicle.

Defense counsel was not ineffective for not challenging the consent to search by a third person since it was clear they could consent, even though the police were responsible for defendant’s absence from the premises. United States v. Burnley, 2009 U.S. Dist. LEXIS 118285 (W.D. Wis. December 18, 2009)*:

The legitimacy of relying on Elliot's authority to allow the search is not diminished by the fact that the police were responsible for defendant's absence. United States v. Parker, 469 F.3d 1074, 1078 (7th Cir. 2006) ("Consent to warrantless search by someone with common authority over premises is valid as against an absent, non-consenting person with whom the authority is shared" even when the police are responsible for absence of non-consenting person) (citing Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242).

Defense counsel was not ineffective for not arguing that a separate consent was required for a separate part of a car search since that is not the law. United States v. Altamirano-Quintero, 2009 U.S. Dist. LEXIS 118375 (D. Colo. December 18, 2009).*

“Would you mind if I look?” is different than “may I search?” Defendant’s consent was acquiescence to a claim of authority. Defendant also refused consent. Meekins v. State, 303 S.W.3d 25 (Tex. App.—Amarillo 2009):

The officer had not asked "may I search" but rather "would you mind if I look?" Answering "yes" to the latter meant that appellant did mind. Answering "I guess" also had and has like connotation; that is, saying "I guess" in response to being asked if one minds whether something happens can well indicate that he does. To this we add appellant's prior evasiveness in response to the officer's persistence in asking for consent. When combined, the circumstances paint not a picture of clarity or unequivocation but rather one of vacillation and hesitance. More importantly, to somehow conclude from the entirety of the scenario that saying "yes" or "I guess" meant that appellant finally acquiesced to the search invites speculation into various matters. Those matters consist of whether appellant failed to listen to the specific question asked by Williams, whether he ignored the last question and opted to answer those previously propounded, or whether he reinterpreted the question from one asking "would you mind" to one asking "may I search." Yet, authority denies both this court and the initial factfinder from engaging in speculation given the absence of supporting evidence.

Applying Tennessee’s Jacumin test (Aguilar-Spinnelli), the informant’s statement was sufficient to show probable cause. He was not a pure citizen informer, but the basis of knowledge was his interaction with the defendant. State v. Blair, 2009 Tenn. Crim. App. LEXIS 1032 (December 17, 2009).*

Adult child living there had sufficient common authority over defendant’s home to consent to a search. State v. Williams, 2009 Tenn. Crim. App. LEXIS 1034 (December 17, 2009).*

The facts in the arrest warrant affidavit showed probable cause for arrest. United States v. Palumbo, 2009 U.S. Dist. LEXIS 117839 (D. Nev. November 23, 2009).*

Another wrong article: "Kiss the Fourth Amendment goodbye"

"Kiss the Fourth Amendment goodbye," posted today by Kathleen Baker, Denver Conservative Examiner, concludes that the Obama Administration granting diplomatic immunity to INTERPOL operating in the United States means that we can "Kiss the Fourth Amendment goodbye." Once again, a conservative watchdog gets it wrong, in their zeal to demonize the President.

She states: "In a nutshell, Obama granted INTERPOL authority to act within the United States without being subject to the Fourth Amendment ...." President Obama did nothing of the sort. Even if he did, it would be unconstitutional. And, if he did, wouldn't somebody else with more credibility have reported it before these guys?

President Reagan's Executive Order 12425 of June 16, 1983 first granted limited diplomatic immunity to INTERPOL, the same as, for example, parts of the United Nations. [Note: As a contractor for the U.N. in Sierra Leone 2004-06, I had the same immunities there under the country's treaty with the U.N.] On December 16th, the President amended that Executive Order to provide that INTERPOL has broader immunity from search by local, state, and federal government officers and taxes. See 22 U.S.C. § 288a:

Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable.

So, where does it say that INTERPOL gets to act outside the Fourth Amendment? It doesn't. Nothing in the article or the statute it quotes says a word about it, except the writer's imagination and lack of reading comprehension. This is just wrong. Dead wrong. Even a commenter got on the bandwagon and agreed without critical analysis. Maybe even without reading. See also the PatriotRoom.com with a slightly different view.

The old early law career saw "RTFS" applies: Read The Frigging Statute.

Update: Agreeing with Baker is BenBarrack.com believing INTERPOL is a foreign police force to bring us to trial in the ICC.

Agreeing with me: This Ain't Hell.

Update 2: More loonies here. I would almost think that the Far Right can't read, or they are so morally corrupt they'll say anything. Either is pathetic.

Defendant’s arrest for theft justified a search incident because that was crime for which evidence could be found. Brown v. State, 24 So. 3d 671 (5th DCA 2009):

Our conclusion on this issue finds ample support in the concurring opinion of Justice Scalia in Thornton. In discussing the "evidence gathering" justification for a search incident to arrest, he observed that a "motorist may be arrested for a wide variety of offenses; in many cases, there is no reasonable basis to believe relevant evidence might be found in the car." Thornton, 541 U.S. at 632 (Scalia, J., concurring). Justice Scalia cited Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001) (involving failure to wear seatbelt), and Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998) (involving speeding), as examples of these types of cases. It is clear from this discussion that the "nature of the charge" is determinative of whether there exists a reasonable basis to search for evidence, not whether there is some independent evidence that gives rise to a belief that the particular vehicle contains evidence. Id. at 630. As Justice Scalia observed: "[I]t is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended." Id. Where, as here, the offense of arrest is such that police could "expect to find" fruits and instruments of the crime, the search is justified as an incident to the arrest because it is reasonable to believe that evidence might be found.

While there is a limited expectation of privacy in computer files, defendant took his computer to a repair place, and, in the normal course of repairs, the technician came upon a file labelled “Pedo” and he could open it. Doing so, he was not a government actor under the federal or state constitutions. Brackens v. State, 2009 Tex. App. LEXIS 9577 (Tex. App.—Houston (1st Dist.) December 17, 2009).*

A police show-up of suspects immediately after a stabbing was reasonable under the totality of circumstances. Therefore, defense counsel was not ineffective for not raising the challenge. Palacios v. Burge, 589 F.3d 556 (2d Cir. 2009):

Rather than supporting a "good Fourth Amendment claim," Kimmelman, 477 U.S. at 382, the "totality of the circumstances," Cortez, 449 U.S. at 417, and the "balance [of] privacy-related and law enforcement-related concerns," McArthur, 531 U.S. at 331, undermine Palacios's claim that the police show-up, following the Djukanovic and Kolenovic stabbings, violated Palacios's Fourth Amendment rights and tainted his subsequent arrest and confession. Accordingly, we conclude that Palacios has not shown that counsel's decision not to pursue a Fourth Amendment challenge respecting the show-up rose to the level of "incompetence" as "unreasonable under prevailing professional norms" and "not sound strategy." Kimmelman, 477 U.S. at 381; see also Strickland, 466 U.S. at 687-88.

Defendant was subjected to a Terry stop and frisk and he was put on the back of the police car. His car was subjected to a frisk, too, and it was valid because he would be shortly released and could reenter the car and gain access to weapons. United States v. Griffin, 589 F.3d 148 (4th Cir. 2009) (2-1).*

Defendant’s furtive movement in the car he was a passenger in was sufficient for a frisk of the car. (The government waived any standing argument by not raising it in the district court.) United States v. Lightbourn, 357 Fed. Appx. 259 (11th Cir. 2009) (unpublished), cert. den. 2010 U.S. LEXIS 4117 (U.S., May 17, 2010).*

Informal juvenile probation could not impose a drug testing condition without statutory authority. Derick B. v. San Diego County Superior Court, 180 Cal. App. 4th 295, 102 Cal. Rptr. 3d 634 (4th Dist. 2009).*

“[T]he opening of the closed but unlocked box within the closed but unlocked book bag did not exceed the scope of the inventory policy.” Commonwealth v. Allen, 76 Mass. App. Ct. 21, 918 N.E.2d 475 (2009).

Search of a pill bottle for weapons in a frisk of the car was unreasonable. Commonwealth v. Cruz-Rivera, 76 Mass. App. Ct. 14, 918 N.E.2d 471 (2009):

But even if one assumes that the police did properly search the car's interior, they exceeded constitutional limits when Officer Berube opened the small pill bottle he found in the vehicle's center console. While it is true that Officer Berube and Officer Gaudet both had been informed in various ways about the existence of very small weapons, such as single-shot pen-sized guns, knives, or razors, a limited search of an automobile in which the police are about to allow the operator to drive off cannot be justified solely by police knowledge that small weapons exist and conceivably can be stored in small containers. Instead, such a search, if proper at all, must be "reasonably designed" to uncover threatening weapons, a concept that requires consideration of all the circumstances, including the likelihood that a weapon of some kind may be present and the threat the weapon may pose under the circumstances. For example, the high likelihood that the trunk of every car contains a jack handle, dangerous when used as a club, does not justify the routine search of the trunk of every car the police detain.

Contrary to the motion judge's findings, there was no evidence that pill-bottle sized weapons had "proliferated" nor was there evidence that the defendant had a specific history of using tiny weapons. On this record, it simply was not reasonable to believe that the defendant might, upon his release with a message that he was free to go, enter his car, reach into the console, open a pill bottle, extract a weapon smaller than four and one-half inches by one and three-fourths inches and use it in an effort to harm the two nearby, fully armed police officers who had just released him. Indeed, allowing police to search the pill bottle under the circumstances this record reveals would, as a practical matter, essentially remove most constitutional brakes on police power to search the contents of motor vehicles stopped for routine traffic incidents.

Turning over a car to a transit shipper was a relinquishment of any expectation of privacy in the car because it was left unlocked, the shipper had the keys, and the shipper would be entering it, parking it, and transporting it. “Although there is no evidence that Crowder directly authorized the driver to search the vehicle, in light of the circumstances described above it is clear that the driver was ‘authorized to act in direct contravention to’ Crowder's privacy interest.” United States v. Crowder, 588 F.3d 929 (7th Cir. 2009).

Tenth Circuit follows Gant good faith exception under United States v. McCane, 573 F.3d 1037 (10th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3221 (U.S. Oct. 1, 2009) (No. 09-402) where the search incident would have been invalid under Gant, but in less than confirmatory language. United States v. Davis, 2009 U.S. App. LEXIS 27901 (10th Cir. December 18, 2009).*

Transit police could conduct an investigative stop of plaintiff when he was seen boarding a MARTA train with a holster. State law made it a crime to board public transportation with a firearm. GeorgiaCarry.Org, Inc. v. Metropolitan Atlanta Rapid Transit Authority, 2009 U.S. Dist. LEXIS 117989 (N.D. Ga. December 14, 2009).*

A vehicle frisk would have been valid here under Gant and Long. Here, however, the officer lacked any reasonable suspicion. United States v. Stewart, 675 F. Supp. 2d 973 (D. Neb. 2009)*:

Moreover, even if the officers' testimony that they subjectively feared danger is credited, the testimony does not amount to a showing that a reasonably prudent officer would be warranted in the belief that his safety or that of others was in danger under these circumstances. Deputy Woodward's testimony that he observed allegedly furtive gestures is explained by the fact that the defendant was searching for his identification. Moreover, a reasonable apprehension of danger would have justified a pat-down or a search of the defendant's immediate area at that time, rather than later. The continued detention of the defendant for the supposed purpose of completing a field interview card is at odds with the professed reason for the search of the car. The video shows that Deputy Woodward was searching the car contemporaneously with the "field questioning" of the defendant. The officers had received no information from the computer records check from which they could conclude that the defendant was potentially armed and dangerous. Though they knew he had been convicted of a felony, they testified that they did not know the details of his conviction. Status as a felon and criminal history that suggests some degree of violent behavior does not create suspicion of danger commensurate with a full-scale search of a vehicle.

Notably, this was not a traffic stop. There are no allegations of any motor vehicle violations. The defendant offered a reasonable explanation for his presence in the neighborhood at the late hour. His references to a woman's "boyfriend" and "husband" are not necessarily inconsistent and, even if they are, would not lead to any inference of dangerousness. The officers expressly disavowed any intent to arrest or charge the individual with possession of drug paraphernalia.

Federal warrants issued by Maine Superior Court judges are valid under Rule 41. United States v. Pressey, 674 F. Supp. 2d 301 (D. Me. 2009).*

In the case of the bank robber whose surveillance photograph was seen by his cop son who went to his house looking for him and found evidence of the bank robbery in plain view (United States v. Ginglen, 467 F.3d 1071 (7th Cir. 2006) posted here), his knowing and intelligent guilty plea was a waiver of all issues. Ginglen v. United States, 2009 U.S. Dist. LEXIS 117752 (C.D. Ill. December 17, 2009).*

Defendant led police on a high speed chase as they closed in to arrest him for a drug offense. (“Cubit alleges no facts demonstrating that a reasonable innocent person would have led law enforcement on a high speed chase when officers initially attempted to stop him.”) Defense counsel was not ineffective for not challenging his arrest. Cubit v. United States, 2009 U.S. Dist. LEXIS 117715 (W.D. Mo. December 16, 2009).*

Body cams on cops a violation of privacy?

San Jose Cops Will Wear Body Cameras on Yes, But, However. See AP story here. The product name is AXON.

Arizona-based, publicly traded, Taser International is footing the initial cost for the experiment. The gear rings up at $1,700 per cop, plus a $99 per month fee per officer. That’s a heavy outlay if every officer has the equipment, but lawsuit payouts for wrongful death, incarceration or injury aren’t cheap either.

It says that the ACLU claims that recording an interaction is an invasion of privacy. How? What is the privacy interest in what a cop sees?

You don't know how many times I've wished that the police-citizen interaction was recorded. Either my client or the cop was lying. Just show me which one.

Jaywalking arrest, even as a minor misdemeanor, justified a search incident. State v. Spain, 2009 Ohio 6664, 2009 Ohio App. LEXIS 5570 (10th Dist. December 17, 2009).*

In a Ybarra-type bar raid, defendant, along with all the other patrons, consented to a search of his person even though there was no reasonable suspicion as to him. State v. Carpenter, 2009 Ohio 6614, 2009 Ohio App. LEXIS 5552 (9th Dist. December 16, 2009)* (Apparently they were all free to leave? I don't see it.).

Officer’s testimony as to cause of stop was sufficient to find reasonable suspicion for the stop as a matter of law, and the trial court erred in granting the motion to suppress. State v. Gustafson, 2009 Iowa App. LEXIS 1650 (December 17, 2009).*

Evidence was in equipoise on the question of credibility of the witnesses for justification for defendant’s stop, and the trial court’s finding that the state failed to meet its burden of proof was affirmed. State v. Kollasch, 2009 Iowa App. LEXIS 1659 (December 17, 2009).*

Because defendant’s arrest was with probable cause, the motion to suppress evidence seized from him was properly denied. State v. Loving, 775 N.W.2d 872 (Minn. 2009).*

Defendant’s furtive movements justified telling him to get out of the car, and contraband was seen in plain view. State v. Rogers, 2009 Iowa App. LEXIS 1619 (December 17, 2009).*

In a vehicle safety checkpoint stop, the officer asked defendant to pull over to a secondary checkpoint because he did not have his seatbelt on. Defendant was told it was a safety checkpoint. The request for consent to search would only be understood as a search for safety purposes, so the broad search of a shaving kit was suppressed. State v. Sargent, 2009 ME 125, 2009 Me. LEXIS 128 (December 17, 2009).

Alaska declines to adopt a different standard than the Fourth Amendment for trash pulls. The defendant had no expectation of privacy in his trash because the Alaska Supreme Court in 1975 refused to adopt a different standard. Beltz v. State, 221 P.3d 328 (Alas. 2009).*

State's argument that defendant subjectively would have stopped anyway made it so that he was not "stopped" for Fourth Amendment purposes is rejected. On these facts, he objectively was stopped. People v. Cash, 396 Ill. App. 3d 931, 922 N.E.2d 1103 (2009)*:

The State's contention also appears to cover a scenario in which neither defendant nor Castronovo submitted to the show of authority because they subjectively intended to remain at the spot regardless of any actions undertaken by the agents. In such a situation, they did not submit to the show of authority, because it had no impact upon their intentions and their actions. Under the State's analysis, they were not seized, because they were not submitting to the show of authority. Further, when the agents request that defendant and Castronovo exit the car, they still were not seized, because this was a noninvestigative encounter between the agents and defendant and Castronovo. When Castronovo and defendant opened the car doors and exited, the agents smelled a particularly strong odor of marijuana, giving them probable cause to seize defendant and Castronovo, and it was only after this point, according to the State's argument, that the men were seized. The problem, however, with the State's contention is that it sweeps too broadly. If the target of the investigative stop flees, then he or she is obviously not submitting to the show of authority. If, however, the target does not flee, then he or she is still not submitting to the show of authority, because it was his or her intent to stand his or her ground regardless of the police presence. The fly in the ointment, however, is the fact that submission appears to be exactly the same as refusing to submit. The target stays put. If such behavior denotes both submission and refusal to submit, then our inquiry is removed from the objective reasonable person and focuses on the target's subjective intent, and this would both be contrary to the law as it has developed and disturb any predictability in search-and-seizure law. The State's argument, then, cannot be accepted.

Court order for taking custody of a child in a child protective services investigation reasonably permits an entry into the home to take possession of the child. Wernecke v. Garcia, 2009 U.S. App. LEXIS 27636 (5th Cir. December 15, 2009):

The facts of this case validate our continuing concern with the risk of flight in Fourth Amendment cases: KW was not present in the Wernecke home because Mrs. Wernecke had, in fact, absconded with her to prevent TDFPS from taking KW into protective custody. TDFPS did not take physical custody of KW until June 4, 2005, three days after the § 262.102 order was issued, because of Mrs. Wernecke's evasion. With these concerns firmly in mind, we reiterate that when a state social worker obtains from a judge a temporary emergency custody order that imposes legal duties on the state agency and has reason to believe the child is within the child's home, the social worker may, consistent with the Fourth Amendment, enter and search the home for the child.

Officers had probable cause to believe that the suspect wanted in an arrest warrant was in the premises, so the entry was reasonable. United States v. Perez-Jacome, 356 Fed. Appx. 212 (10th Cir. 2009) (unpublished):

The first prong of the Payton test requires that officers have a reasonable basis for believing that the suspect, in this case Mr. Moreira, lived in the home. The district court found the agents' belief that Mr. Moreira lived at 1814 Bunker to be objectively reasonable. Based on the record, we agree.

. . .

Because the first prong of the Payton analysis is met, the district court properly determined that Payton, and not Steagald, is controlling. See Gay, 240 F.3d at 1226. Furthermore, Mr. Perez-Jacome concedes that the agents reasonably believed that Mr. Moreira could be found within the home at the time they executed the arrest warrant, and thus the second prong of the Payton analysis is satisfied. Indeed, agents observed Mr. Moreira enter the home immediately before they executed the warrant. Therefore, both prongs of the Payton analysis are met. Because the entry into Mr. Perez-Jacome's home was lawful under Payton, the district court properly denied Mr. Perez-Jacome's motion to suppress the evidence found in his home and his statement.

A radio call about a robbery led to defendant’s patdown, and it was reasonable under all the circumstances. United States v. Roane, 356 Fed. Appx. 564 (3d Cir. 2009) (unpublished).*

The good faith exception applies to a search incident occurring before Gant that became unreasonable under Gant. People v. Branner, 180 Cal. App. 4th 308 (3d Dist. December 17, 2009):

A question posed in this case is whether the guilty must go free when (1) at the time such evidence was obtained by a law enforcement officer, a decision of the United States Supreme Court instructed the officer that the manner in which he searched for and seized the evidence was lawful, but (2) thereafter, the Supreme Court changed its mind. As we will explain, the answer is "No."

Although it may be that a "criminal is to go free because the constable has blundered" (People v. Defore (1926) 242 N.Y. 13, 21), the guilty should not go free when the constable did precisely what the United States Supreme Court told him he could do, but the court later decides it is the one who blundered. Evidence seized during a search that was lawful pursuant to Supreme Court precedent existing at the time, but later overruled by the court, should not be excluded for two reasons: (1) "the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates" (United States v. Leon, supra, 468 U.S. at p. 916 [82 L.Ed.2d at p. 694]) and, therefore, if a search by an officer complies with a court ruling that allows the officer to so act, "[p]enalizing the officer for the [court's] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations" (id. at pp. 918, 921 [82 L.Ed.2d at pp. 696, 697); and (2) applying the exclusionary rule in such a circumstance would have "substantial social costs" due to the "objectionable collateral consequence of [the rule's] interference with the criminal justice system's truth-finding function [by allowing] some guilty defendants [to] go free or receive reduced sentences" (id. at p. 907 [82 L.Ed.2d at p. 688]).

This principle, known as the good-faith exception to the exclusionary rule, applies to the search and seizure in this case. A question posed in this case is whether the guilty must go free when (1) at the time such evidence was obtained by a law enforcement officer, a decision of the United States Supreme Court instructed the officer that the manner in which he searched for and seized the evidence was lawful, but (2) thereafter, the Supreme Court changed its mind. As we will explain, the answer is "No."

Although it may be that a "criminal is to go free because the constable has blundered" (People v. Defore (1926) 242 N.Y. 13, 21), the guilty should not go free when the constable did precisely what the United States Supreme Court told him he could do, but the court later decides it is the one who blundered. Evidence seized during a search that was lawful pursuant to Supreme Court precedent existing at the time, but later overruled by the court, should not be excluded for two reasons: (1) "the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates" (United States v. Leon, supra, 468 U.S. at p. 916 [82 L.Ed.2d at p. 694]) and, therefore, if a search by an officer complies with a court ruling that allows the officer to so act, "[p]enalizing the officer for the [court's] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations" (id. at pp. 918, 921 [82 L.Ed.2d at pp. 696, 697); and (2) applying the exclusionary rule in such a circumstance would have "substantial social costs" due to the "objectionable collateral consequence of [the rule's] interference with the criminal justice system's truth-finding function [by allowing] some guilty defendants [to] go free or receive reduced sentences" (id. at p. 907 [82 L.Ed.2d at p. 688]).

This principle, known as the good-faith exception to the exclusionary rule, applies to the search and seizure in this case.

Leon’s good faith exception was based on the fact a judicial officer interceded between the citizen and the officer in the issuance of a search warrant. In this situation, Leon should never be cited, but the anti-exclusionary rule courts consider Belton or Gant to be a judicial error rather than an officer error.

See post on Crime and Consequences.

A valid ex parte order of protection was served on defendant away from his house, but defendant could not show that it was for the purpose of keeping him from objecting to the search under Randolph. His wife was asked for consent in his absence. United States v. Brewer, 588 F.3d 1165 (8th Cir. 2009).*

Two cell phones and unusual travel plans were reasonable suspicion. Defendant was in Wichita heading to the East Coast but on a five day vacation. The officer saw Bondo for body work, which indicates a hidden compartment. The drug dog alerted. United States v. Guerrero-Sanchez, 2009 U.S. Dist. LEXIS 116869 (D. Kan. December 15, 2009).

The defendant had a carry permit and he told the officer, as required to do, that he had the gun. The officer looked for it and smelled marijuana. That gave cause to search. United States v. Smith, 694 F. Supp. 2d 1242 (M.D. Ala. 2009).*

The affidavit for the search warrant supported the inferences drawn and that defendant had contraband in the house. Possession of a gun 15 days earlier was not stale. United States v. Collins, 2009 U.S. Dist. LEXIS 117232 (E.D. N.C. October 16, 2009).*

While the affidavit for the search warrant did not show probable cause, the officer's reliance on it was not unreasonable because it was not so lacking in probable cause as to render reliance on it unreasonable. United States v. Wiley, 2009 U.S. Dist. LEXIS 116899 (D. Minn. December 15, 2009)*, affg United States v. Wiley, 2009 U.S. Dist. LEXIS 116901 (D. Minn. October 15, 2009) (USMJ R&R)*:

Even an affidavit that has an obvious facial flaw may not be "so lacking in indicia of probable cause" that it renders an official's belief in the existence of probable cause "entirely unreasonable." In Leon, for example, one of the defendants argued that "no reasonably well trained police officer could have believed that there existed probable cause to search his house," because "the affidavit included no facts indicating the basis for the informants' statements concerning [the defendant's] criminal activities and was devoid of information establishing the informants' reliability." 468 U.S. at 905, 926. The Court disagreed, stating that the "application for a warrant clearly was supported by much more than a 'bare bones' affidavit. The affidavit related the results of an extensive investigation and ... provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause." Id. at 926. The Eighth Circuit has "found Leon applicable even when a facially obvious error exists on a warrant." Hessman, 369 F.3d at 1021. In United States v. Hessman, the Eighth Circuit concluded that an officer's good faith reliance on a warrant was objectively reasonable, even though the officer had failed to sign his affidavit and the magistrate had failed to administer an oath, noting that "(1) the state magistrate had made a probable cause determination, (2) the affidavit provided specific information about the objects of the search, (3) the affiant . . . helped execute the warrant, and (4) the warrant could have been made valid by the addition of [the affiant's] signature and administration of an oath." Id. at 1023.

The Court concludes that even though Officer Babekuhl's affidavit fails to establish probable cause, it was not "entirely unreasonable" for Officer Babekuhl to believe that it contained sufficient indicia of probable cause. Officer Babekuhl's affidavit contained specific information establishing his reasons for believing that the residents of the house were selling narcotics. It made reference to citizen complaints, Officer Babekuhl's personal observations consistent with those complaints, information from a CRI confirming that the residents are dealing narcotics, and a description of a controlled buy that the CRI conducted with a specific individual in the house.

Taking DNA from a convict is not unconstitutional. Here, it linked defendant to another crime. Sanchez v. State, 2009 OK CR 31, 223 P.3d 980 (2009).*

A shaving kit was searched incident to arrest pre-Gant (and certainly appeared invalid under Gant), but the defendant did not make a proper objection, so it was waived for appeal. Bishop v. State, 308 S.W.3d 15 (Tex. App. — San Antonio 2009).*

Inevitable discovery supports the search here because the officer would have been able to arrest the defendant, and it would have been found by an inventory. United States v. Garcia-Covarrubias, 2009 U.S. Dist. LEXIS 117136 (N.D. Tex. December 16, 2009).*

Seventeen minutes from a traffic stop to a dog alert was not an unreasonable amount of time for the stop. Wallace v. State, 2009 WY 152, 2009 Wyo. LEXIS 170 (December 14, 2009)*:

[*P16] Here, Wallace does not dispute the validity of the initial stop and, typically, that leads us to the second prong of the analysis under Terry (i.e., were the officer's actions during the detention reasonably related in scope to the circumstances that justified the interference in the first instance). Damato, P 9, 64 P.3d at 705. However, in this case, we need not look beyond the initial stop because Wallace admits that it was lawful, and also because the record is clear that no improprieties occurred so as to violate Wallace's constitutional rights. The record shows precisely how many minutes Wallace had been detained before the drug dog alerted to drugs at the scene -- just over seventeen minutes elapsed from the time Deputy Stinson stopped the vehicle until the dog alerted. The district court was persuaded that the deputy did not drag his feet in order to allow for the canine unit to arrive. In fact, the district court concluded that the brief period of detention lasted no longer than was necessary to achieve the purpose of the stop, inasmuch as the sniff was concluded before the deputy had finished issuing the citations. We agree.

Defendant’s weaving within her own lane and touching the center line was sufficient basis for a stop. Drummer v. State, 2009 Miss. App. LEXIS 933 (December 15, 2009).*

The officer had reasonable suspicion to detain defendant for DUI after he was found slumped behind the wheel of his vehicle after a one-vehicle accident and there was an odor of alcohol. State v. Meador, 2009 Tenn. Crim. App. LEXIS 1013 (December 11, 2009).*

Plaintiff’s claim that an order not to practice law without a license was subject to abstention. (Somehow he came up with a Fourth Amendment claim, which is indicative, perhaps, of why he's not practicing law anymore.) Feingold v. Office of Disciplinary Counsel, 2009 U.S. Dist. LEXIS 116806 (E.D. Pa. December 14, 2009).*

With search warrants for drug dealers, nexus is almost per se shown for their home for drugs and money. United States v. Huerta, 2009 U.S. Dist. LEXIS 116621 (E.D. Tenn. November 10, 2009):

"In the case of drug dealers, evidence is likely to be found where the dealers live," United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998), quoting United States v. Lamon, 930 F.2d 1183 (7th Cir. 1991). A case that originated in this court is directly on point: United States v. Gunter, 551 F.3d 472 (6th Cir. 2009). Gunter argued that the affidavit filed in support of the search warrant issued by this court failed to establish a nexus between his residence and the criminal activity otherwise described in the affidavit, arguing that "the affidavit does not contain any facts indicating that Gunter was dealing drugs from his residence, and that the affidavit only mentions his residence in one short paragraph ...." 551 F.3d at 481. The Court of Appeals held that it was reasonable to conclude from the affidavit that Mr. Gunter was engaged in drug trafficking, and it was therefore reasonable to infer "that evidence of the illegal activity would be found at [his] residence," citing Gunter, supra, 551 F.3d at 481.

Accord: United States v. Huerta, 2009 U.S. Dist. LEXIS 117154 (E.D. Tenn. December 3, 2009).*

Defendant’s specific argument of lack of attenuation from alleged illegal police conduct was not made in the district court, so it was waived for appeal. “While the two arguments are related, they are not the same.” United States v. Lambert, 356 Fed. Appx. 179 (10th Cir. 2009) (unpublished).*

Odor of marijuana coming from defendant’s vehicle was probable cause for a search. United States v. Curry, 2009 U.S. Dist. LEXIS 116499 (N.D. Tex. December 14, 2009).*

Traffic stop was with a factual basis, but the officer apparently and legally abandoned it to investigate drugs. Using a drug dog within a couple of minutes of the stop was not unreasonable. United States v. Ramsey, 2009 U.S. Dist. LEXIS 116195 (E.D. Tenn. November 9, 2009)*:

Defendant does not dispute that only a few minutes elapsed between the stop and the alert by Red. Defendant also appears to concede the stop was not prolonged in order to deploy Red by admitting his argument does not turn on the length of the stop [Doc. 18 at 3]. That Red was deployed within a few minutes of the stop is not determinative of whether the detention was constitutional. Bell, 555 F.3d at 539. The mere two-minute lapse of time between the stop and the deployment of Red, however, certainly bolsters the undisputed video evidence that Officer Curvin had not completed all traffic enforcement acts at the time of the deployment and alert. Thus, I FIND the traffic enforcement purpose of the stop was not concluded during the time Red was deployed and almost immediately alerted, in spite of the officers' investigatory agenda. No evidence indicates Defendant was detained longer than reasonably necessary to complete the purpose of the stop or that the officers extended the duration of the stop to enable the dog sniff to occur. Therefore, I also FIND the officers acted with diligence and that Defendant was not detained any longer than necessary for the purpose for which he was initially pulled over -- traffic enforcement. See, e.g., United States v. Garcia, 496 F.3d 495, 504 (6th Cir. 2007) ("the duration of the stop was reasonable; the canine sniff was performed within a half hour of the stop"); Bell, 555 F.3d at 541 (detention proper where it is no longer than reasonably necessary for officers to complete the purpose of the stop).

Violation of state law in not getting defendant before a state magistrate was not relevant to this case where defendant was promptly charged in federal court, too. The Fourth Amendment governs, not the violation of state law. United States v. Mott, 2009 U.S. Dist. LEXIS 116117 (E.D. Tenn. December 14, 2009).*

Defendant did not have an expectation of privacy in shipping containers stored on property belonging to another. The property was deeded to another, and the defendant sought to show the true financial relationship between them as to who had a mortgage and who owed what, but it did not overcome the fact that another owned the property and had control over it. The containers were left unattended, and, by all accounts, were abandoned. United States v. Swift, 2009 U.S. Dist. LEXIS 116161 (D. Haw. December 14, 2009).*

The seizure in this case depends on a search incident in violation of Gant, so claimant’s judgment on the pleadings is granted. United States v. $14,448.00 United States Currency, 2009 U.S. Dist. LEXIS 116184 (E.D. Mo. December 14, 2009).*

David J. Warner, A Call to Action: The Fourth Amendment, the Future of Radio Frequency Identification and Society, 40 Loy. (L.A.) L. Rev. 853 (2007). SSRN Abstract:

Nuclear materials. Barcelona club-goers. Mexican diplomats. Japanese schoolchildren. Your next pair of underwear. What do all these things have in common? All of these items either currently contain, or could soon contain, a radio frequency identification (RFID) tag inside them. In this Note, David Warner looks at the future of RFID technology and addresses the growing privacy concerns with the technology. While the Fourth Amendment protects individuals from government intrusion, most RFID privacy concerns will come from the private sector. In addition, once private information is given to a third party (e.g., your supermarket), the government can access that information without a warrant. Since the Fourth Amendment is not the proper tool to dispel privacy concerns, all parts of society--government, corporations, and citizens--have a role to play in properly integrating RFID technology into society

The DUI scene blood draw by an Arizona State Police phlebotomist was reasonable on these facts, so it did not violate Schmerber. The program as a whole had already been sustained, and the trial court erred in holding that it caused an unreasonable search. State v. Noceo, 2009 Ariz. App. LEXIS 781 (Ariz. Ct. App. December 15, 2009):

¶8 Here, we are presented with facts nearly identical to those in May, yet the trial court suppressed the evidence based on its findings regarding the phlebotomy program as a whole rather than the circumstances of Noceo’s blood draw in particular. The fundamental question with respect to compelled blood draws and the Fourth Amendment, however, is not whether the blood draw program as a whole is reasonable—a question our state legislature implicitly has answered in A.R.S. §§ 28-1321 and 28-1388—but rather, “whether the means and procedures employed in taking [a suspect’s] blood respected relevant Fourth Amendment standards of reasonableness.” Schmerber, 384 U.S. at 768. Thus, the trial court erred as a matter of law by evaluating the entire DPS phlebotomy program instead of the reasonableness of Noceo’s particular blood draw. As a result, it abused its discretion.

¶9 Moreover, even if the trial court’s evaluation of the DPS phlebotomy program had been appropriate, the court’s findings do not appear to be supported by the record.

Government failed to show justification for its protective sweep, and suppression order affirmed. A protective sweep requires knowledge, not ignorance. United States v. Archibald, 589 F.3d 289, 2009 FED App. 0423P (6th Cir. 2009):

It is well-settled that arrest warrants are not search warrants. Steagald v. United States, 451 U.S. 204, 212-13, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). Thus, the Supreme Court has identified two types of warrantless protective sweeps of a residence that are constitutionally permissible immediately following an arrest. The first type allows officers to "look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Buie, 494 U.S. at 334. The second type of sweep goes "beyond" immediately adjoining areas but is confined to "such a protective sweep, aimed at protecting the arresting officers[.]" Id. at 334-35. The first type of sweep requires no probable cause or reasonable suspicion, while the second requires "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 334. The Supreme Court also "emphasize[d]" that this second kind of sweep is "not a full search of the premises," but "extend[s] only to a cursory inspection of those spaces where a person may be found" and should last "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Id. at 335-36.

. . .

Clearly, Buie requires more than ignorance or a constant assumption that more than one person is present in a residence. In Colbert, we stated that a lack of knowledge as to whether others were in a home necessarily failed the Buie standard because that standard requires "articulable facts," not ignorance:

In fact, allowing the police to conduct protective sweeps whenever they do not know whether anyone else is inside a home creates an incentive for the police to stay ignorant as to whether or not anyone else is inside a house in order to conduct a protective sweep. Finally, and perhaps most importantly, allowing the police to justify a protective sweep on the ground that they had no information at all is directly contrary to the Supreme Court's explicit command in Buie that the police have an articulable basis on which to support their reasonable suspicion of danger from inside the home. "No information" cannot be an articulable basis for a sweep that requires information to justify it in the first place.

Colbert, 76 F.3d at 778. Accordingly, cases that have found that noises emanating from a residence supported a reasonable belief in the presence of other individuals have required contributing facts or stronger evidence than what is presented here supporting the officers' suspicions that more than one person was present. See, e.g., United States v. Talley, 275 F.3d 560, 562 (6th Cir. 2001) ("officers heard a loud commotion and the sounds of several individuals running throughout the apartment and up and down the stairs"); United States v. Stover, 474 F.3d 904, 910-12 (6th Cir. 2007) (officers observed two cars parked in driveway of duplex -- one registered to defendant and the other to a "local criminal" who resided at a different address -- and heard noise and movement in house before defendant came downstairs); United States v. Taylor, 248 F.3d 506, 511, 514 (6th Cir. 2001) (holding that protective sweep was justified where officers obtained consent from defendant's brother to enter defendant's apartment, heard shuffling noises indicating the presence of multiple persons, had information that defendant was a drug and weapons dealer suspected of numerous murders, saw a marijuana stem in plain view, and observed defendant's brother behaving nervously).

A general motion to suppress that itemized every possible failure of the officer in an OVI case was insufficient to put the state on notice as to what the issue was and was properly denied. State v. Kale, 2009 Ohio 6530, 2009 Ohio App. LEXIS 5454 (7th Dist. December 9, 2009).*

[*P18] Appellant employed the "throw-everything-at-the-wall-and-see-what-sticks" approach to his motion. The prosecution asserted at the hearing, without objection or denial by appellant's counsel, that appellant's counsel has used this identical boilerplate motion in at least two other cases. (Oct. 31, Tr. 8). If in fact counsel uses the identical motion in other OVI cases, then there is no way that he is alleging facts specific to the circumstances at hand. A motion to suppress must "be more than a mere fishing expedition." Gozdan, 7th Dist. No. 03-CA-792, 2004 Ohio 3209 at P9.

[*P19] Appellant did not assert facts with sufficient particularity so as to put the prosecution on notice and to shift the burden to the state. Accordingly, appellant's first assignment of error is without merit.

The third party consented to recording of defendant’s telephone call when he was in Pennsylvania and the second party was in California and the third party was in Ohio. Ohio law would be applied and the Fourth Amendment did not prohibit it. State v. Dew, 2009 Ohio 6537, 2009 Ohio App. LEXIS 5461 (7th Dist. December 1, 2009).*

Trial court’s finding of consent is supported by the evidence, so it is affirmed. State v. Adams, 2009 Ohio 6491, 2009 Ohio App. LEXIS 5449 (4th Dis. December 8, 2009).*

Defendant had standing to challenge the search of his tax preparer’s office for his tax returns because he has a reasonable expectation of privacy. The warrant as to him was general. People v. Gutierrez, 222 P.3d 925 (Colo. 2009), Court’s syllabus:

The Colorado Supreme Court holds that the trial court properly suppressed evidence obtained pursuant to an unlawful search of defendant Gutierrez's tax returns and supporting documentation, which were found in his client file police seized from his tax preparer's office. First, Gutierrez has standing under the Fourth Amendment to object to a search of his client file. A taxpayer has a reasonable expectation of privacy in his or her tax returns and return information, even when that information is in the custody of a tax preparer. This reasonable expectation of privacy is based on federal and state laws that protect the confidentiality of tax returns and return information. Second, Gutierrez's client file was searched in violation of the Fourth Amendment. The affidavit supporting the warrant did not name Gutierrez or refer to him in any way and therefore failed to establish individualized probable cause to search his client file. Finally, the good faith exception to the exclusionary rule does not apply in this case because the affidavit supporting the warrant was so lacking in indicia of probable cause to search Gutierrez's file that no reasonably well-trained officer could have relied upon it. Therefore, suppression of the evidence was appropriate.

News stories: Greeley Tribune, Law Week Colorado, AP.

Electric company had right to investigate theft of electricity, and taking a cop along did not make it a law enforcement search. United States v. Sanchez-Paz, 2009 U.S. Dist. LEXIS 115723 (M.D. Fla. November 24, 2009)*:

Here, law enforcement obviously knew of and acquiesced in Progress Energy's inspection of the meter at 3630 Twisted Oak Court. The inquiry then focuses on the second requirement, that is, whether in conducting the search Progress Energy was motivated by assisting law enforcement or by furthering its own legitimate interests.

Progress Energy has a legitimate business interest in ensuring that its electricity is not stolen. It has a lawful right to enter the premises of its customers to inspect and maintain its meters and make sure that its meters are not being circumvented. It would not be unusual for these inspections to take place after receipt of a tip that electricity was being stolen, whether that tip comes from an anonymous citizen or from the police. When a tip is received from the police, Progress Energy's inspector does not thereby become an agent of the police.

Here, while Detective Angulo did enter upon the property, he did so only after Farrans requested Angulo to do so and went only so far as necessary to keep Farrans and the pit bulls in sight for Farrans' safety. This limited involvement on the part of Detectives Angulo and Edmiston does not make them participants in the search, or Farrans their agent.

Confrontation rights applied to a suppression hearing, so it was error to permit co-conspirator to testify by videoconference from jail. Here, however, it was harmless because it was cumulative. Commonwealth v. Atkinson, 2009 PA Super 239, 987 A.2d 743 (2009) (Note: Not all courts agree.)

Officers investigating passengers on a train developed reasonable suspicion for claimant’s suitcase, and it was reasonable to remove it from the train for a dog sniff under the circumstances. United States v. Funds in the Amount of $ 40,000, 2009 U.S. Dist. LEXIS 115487 (N.D. Ill. December 10, 2009).*

The search of defendant’s car was justified by the automobile exception and not search incident under Gant. United States v. Goldsmith, 2009 U.S. Dist. LEXIS 115430 (E.D. Tex. November 12, 2009).*

Fourth Amendment applied to a search of an American citizen in Thailand by ICE officers investigating defendant’s international travel for the purpose of sex with minors in violation of U.S. law. However, the warrant clause does not require an American judge issue a warrant, and the search warrant here was issued by a Thai provincial court. United States v. Stokes, 2009 U.S. Dist. LEXIS 115542 (N.D. Ill. December 11, 2009):

It is a matter of first impression in this Circuit whether the Warrant Clause of the Fourth Amendment governs searches and seizures of U.S. citizens in foreign lands. The court is not aware of any case, and Stokes presents no authority, that holds that the Warrant Clause ever applies in foreign territory. Such an extension of the warrant requirement would be, in Justice Harlan's words, "impractical and anomalous." Accordingly, the court holds that the Warrant Clause does not apply to the search of Stokes's residence in Thailand. Stokes's objections to the search based on the invalidity of the Thai warrant and the scope of the search are overruled.

Though it has not addressed the issue directly, the Supreme Court has strongly suggested that the Warrant Clause has no extraterritorial application. Writing for the Court in Verdugo, Justice Rehnquist explained that warrants issued to conduct searches abroad "would be a dead letter outside the United States." 494 U.S. at 274. Justice Kennedy elaborated:

The absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment's warrant requirement should not apply in Mexico as it does in this country.

Id. at 278 (Kennedy, J., concurring). Justice Steven's brief concurrence and Justice Blackmun's dissent also similarly suggest that the Warrant Clause does not govern overseas searches, at least where the targets of those searches are not U.S. citizens. Id. at 279 (Stevens, J., concurring)("[The Warrant Clause has no] application to searches of noncitizens' homes in foreign jurisdictions because American magistrates have no power to authorize such searches."); Id. at 297(Blackmun, J., dissenting) ("l agree with the Government, however, that an American magistrate's lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen's residence outside this county.") All told, seven Justices in Verdugo seemed to agree that, because United States courts lack the sovereign authority to issue warrants abroad, the procedures and requirements set forth by the Warrant Clause do not apply to foreign searches.

According to the only federal appellate court to have considered the issue, the "warrant requirement does not govern searches conducted abroad by U.S. agents; such searches of U.S. citizens need only satisfy the Fourth Amendment's requirement of reasonableness." In re Terrorist Bombings of U.S. Embassies in East Africa, 548 F.3d 276, 287 (2nd Cir. 2008). In the Terrorist Bombings case, U.S. officials wiretapped and searched the home of an American citizen living in Kenya pursuant to a Kenyan warrant that authorized a search for "stolen property." Id. at 279. The homeowner was suspected of assisting the bombings of American embassies in Kenya and Tanzania, not of possessing stolen property. Id. Relying on Verdugo, the Second Circuit determined that the Warrant Clause did not apply to any search of a U.S. citizen abroad by American officials. The court offered four reasons for its decision: "First, there is nothing in our history or our precedent suggesting U.S. officials must first obtain a warrant before an overseas search." Id. at 289. "Second, nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own." Id. at 290. "Third, if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation." Id. at 290. "Fourth and finally, it is by no means clear that U.S. judicial officers could be authorized to issue warrants for overseas searches." Id.

The court finds the Second Circuit's reasoning persuasive here. The Thai court in Pattaya, not some distant American magistrate, was the sole sovereign entity with the power to authorize a search of Stokes's home.

A past due rental agreement on a car is a factor in reasonable suspicion, and the officer has no legal obligation to call the car rental company to verify the defendant’s assertion that it has been extended. Sutton v. State, 2009 WY 148, 220 P.3d 784 (2009).

Detailed information of a likely DUI from an identified citizen informer did not have to be fully corroborated. The car was seen, followed for about two blocks, and the car weaved within the lane 4-5 times. While weaving within the lane alone would not be enough, it was when coupled with the CI’s report. State v. Van Dyke, 2009 UT App 369, 223 P.3d 465, 645 Utah Adv. Rep. 19 (2009).*

There was probable cause for defendant’s arrest, so his counsel could not have been ineffective for not challenging it. State v. Trujillo, 153 Wn. App. 454, 222 P.3d 129 (2009).*

Defendant’s frisk was without reasonable suspicion under the state constitution. State v. Harrington, 167 Wn. 2d 656 (2009).* Overview:

Defendant endured a progressive intrusion at the hands of the police. Before an officer's request to search, he did not ask for defendant's name or address, did not conduct a warrant check, and did not ask if defendant carried drugs. Instead, the officer initiated contact with defendant on a dark street. The officer asked questions about defendant's activities and travel that evening and found defendant's answers suspicious. A second officer arrived at the scene and stood nearby. The first officer asked defendant to remove his hands from his pockets. Then he asked to frisk, without any specific and articulable facts that would create an objectively reasonable belief that defendant was armed and dangerous. Wash. Const. art. I, § 7, could not tolerate this progressive intrusion into defendant's privacy. Because defendant's consent to the search was obtained through exploitation of a prior illegal seizure, suppression of the evidence was required.

Hot pursuit for a fleeing misdemeanant (discarding an apparent joint in public in front of officer) into his home was reasonable under the Fourth Amendment. State v. Bell, 28 So. 3d 502 (La. App. 4th Cir. 2009), released for publication February 12, 2010, writ denied by State v. Bell, 2010 La. LEXIS 533 (La. Mar. 5, 2010).

Questions to the defendant amounted to a seizure because he was not free to go. The emergency aid exception argued by the state fails because there was no concern expressed by the officer for defendant’s well-being. State v. Montano, 2009 NMCA 130, 223 P.3d 376 (2009).*

Defendant as a mere possessor of a cell phone did not have standing to contest the state’s production of records from the cell phone. He did not show a connection to the cell phone. State v. Stitt, 2009 N.C. App. LEXIS 2252 (December 8, 2009).*

Defendant was reasonably ordered out of his car because of a window tint violation because the officer could not see through the windows. It was not unreasonable for the officer to shine his flashlight into the vehicle and see the butt of a gun that led to the seizure of the gun. State v. Hunt, 25 So. 3d 746 (La. 2009).*

Apparent hand-to-hand transaction and defendant’s flight was reasonable suspicion. State v. McMillan, 30 So. 3d 36 (La. App. 5th Cir. 2009).*

Child welfare sexual abuse investigation interrogation of child violated family’s due process rights. Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009):

We are asked to decide whether the actions of a child protective services caseworker and deputy sheriff, understandably concerned for the well-being of two young girls, exceeded the bounds of the constitution. Specifically, the girls' mother, Sarah Greene, alleges, on behalf of S.G., one of her children, that the caseworker, Bob Camreta, and deputy sheriff, James Alford, violated the Fourth Amendment when they seized and interrogated S.G. in a private office at her school for two hours without a warrant, probable cause, or parental consent. Sarah also argues that Camreta's subsequent actions, both in securing a court order removing the girls from her custody and in subjecting the girls to intrusive sexual abuse examinations outside her presence, violated the Greenes' familial rights under the Due Process Clause of the Fourteenth Amendment.

As this brief description makes clear, resolving the constitutional claims at issue in this case involves a delicate balancing of competing interests. On one hand, society has a compelling interest in protecting its most vulnerable members from abuse within their home. The number of child abuse allegations is staggering: In 2007, for example, state and local agencies investigated 3.2 million reports of child abuse or neglect. See U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES. CHILD MALTREATMENT 2007 (2009), available at http://www.acf.hhs.gov/programs/cb/pubs/cm07/chapter2.htm.

On the other hand, parents have an exceedingly strong interest in directing the upbringing of their children, as well as in protecting both themselves and their children from the embarrassment and social stigmatization attached to child abuse investigations. Of the millions of investigations conducted by state and local agencies in 2007, only about a quarter concluded that the children were indeed victims of abuse. See id. This discrepancy creates the risk that "in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help." Doriane Lambelet Coleman, Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment, 47 Wm. & Mary L. Rev. 413, 417 (2005).

With these competing considerations in mind, we turn first to Sarah's constitutional claims. As we explain below, we hold that the investigation conducted by Camreta and Alford and the removal and examination instigated by Camreta all violated Sarah and the girls' constitutional rights. As to the investigation, however, we conclude that Camreta and Alford cannot be liable in damages because they have qualified immunity.

December 15, 1791

See the Cato Institute's website.

Ohio holds today (4-3) that a cell phone search requires a warrant without exigent circumstances. Therefore, it was not subject to a search incident. Today's cell phones are analogous to a computer. State v. Smith, 2009 Ohio 6426, 124 Ohio St. 3d 163, 920 N.E.2d 949 (2009). The Syllabus by the court:

The warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances.

From the opinion:

B. Characterization of a cell phone

{¶ 14} The question in this case is a novel one. In part, whether the warrantless search of a cell phone passes constitutional muster depends upon how a cell phone is characterized because whether a search is determined to be reasonable is always fact-driven. It appears that neither the United States Supreme Court nor any state supreme court has ruled on the warrantless cell phone search. At present, the two leading cases are those discussed by the majority and dissenting opinions of the court of appeals.

. . .

3. Closed Containers

. . .

{¶ 20} We acknowledge that some federal courts have likened electronic devices to closed containers. E.g. United States v. Chan (N.D.Cal. 1993), 830 F.Supp. 531, 534 (finding that a pager is analogous to a closed container), United States v. Ortiz (C.A.7, 1996), 84 F.3d 977, 984 (following Chan in holding that a pager is a closed container), United States v. David (D.Nev.1991), 756 F.Supp. 1385, 1390 (finding a computer memo book “indistinguishable from any other closed container”). Each of these cases, however, fails to consider the Supreme Court’s definition of “container” in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid 1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.

4. Legitimate Expectation of Privacy

{¶ 21} Since cell phones are not closed containers, the question becomes how they should be classified. Given the continuing rapid advancements in cell phone technology, we acknowledge that there are legitimate concerns regarding the effect of allowing warrantless searches of cell phones, especially so-called smart phones, which allow for high-speed Internet access and are capable of storing tremendous amounts of private data.5 While it is apparent from the record that Smith’s cell phone could not be called a smart phone with advanced technological capability, it is clear from the record that Smith’s cell phone had phone, text messaging, and camera capabilities. While the dissent argues that Smith’s phone is merely a “conventional one,” we note that in today’s advanced technological age many “standard” cell phones include a variety of features above and beyond the ability to place phone calls. Indeed, like Smith’s phone, many cell phones give users the ability to send text messages and take pictures. Other modern “standard” cell phones can also store and transfer data and allow users to connect to the Internet. Because basic cell phones in today’s world have a wide variety of possible functions, it would not be helpful to create a rule that requires officers to discern the capabilities of a cell phone before acting accordingly.

5. For detailed discussion of the capabilities of modern cell phones and potential Fourth Amendment concerns, see generally Gershowitz, The iPhone Meets the Fourth Amendment (2008), 56 UCLA L.Rev. 27, and Stillwagon, Note, Bringing an End to Warrantless Cell Phone Searches (2008), 42 Ga.L.Rev. 1165.

{¶ 22} “Modern understandings of the Fourth Amendment recognize that it serves to protect an individual's subjective expectation of privacy if that expectation is reasonable and justifiable.” State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 14, citing Rakas v. Illinois (1978), 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387, and Katz v. United States (1967), 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (Harlan, J., concurring). Given their unique nature as multifunctional tools, cell phones defy easy categorization. On one hand, they contain digital address books very much akin to traditional address books carried on the person, which are entitled to a lower expectation of privacy in a search incident to an arrest. On the other hand, they have the ability to transmit large amounts of data in various forms, likening them to laptop computers, which are entitled to a higher expectation of privacy.

{¶ 23} But cell phones are neither address books nor laptop computers. They are more intricate and multifunctional than traditional address books, yet they are still, in essence, phones, which makes them distinguishable from laptop computers. Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.

Finally, a court recognizing what had become obvious. I posted to Prof. Gershowitz's article nearly two years ago here.

News: Columbus Dispatch

SCOTUS granted cert today in the text message case of City of Ontario v. Quon, 08-1338. SCOTUSBlog here, also referring to USA Mobility Wireless v. Quon:

Among the three new cases the Justices voted to hear, the one with the widest impact appeared to be the case appealed by the city of Ontario, Calif., and its police department — a Digital Age dispute involving the ubiquitous hand-held communication device. The petition tests whether there is a constitutionally-based right of privacy in text messages for employees of a government agency and, if there is such a right, whether it is less extensive for city employees using government-owned electronic pagers.

The case involved the city’s review of text messages that a member of a police SWAT, or emergency response, team had sent to another officer with whom he was having a romantic affair, and also messages he had sent to his wife. The Supreme Court’s final decision in the case is expected to amplify or modify a 1987 decision, Connor v. Ortega, recognizing some workplace privacy for public employees, but counseling that courts should take into account the “operational realities of the workplace.” Although the Court agreed to hear the city’s petition, it denied review of a separate appeal by the provider of the city’s pager service, seeking to test the scope of the federal Stored Communications Act as it applied to disclosure of the context of text messages (USA Mobility Wireless v. Quon, et al., 08-1472).

Update: The cert. petition is here. The Questions Presented:

While individuals do not lose Fourth Amendment rights merely because they work for the government, some expectations of privacy held by government employees may be unreasonable due to the "operational realities of the workplace." O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (plurality). Even if there exists a reasonable expectation of privacy, a warrantless search by a government employer--for non-investigatory work-related purposes or for investigations of work-related misconduct--is permissible if reasonable under the circumstances. Id. at 725-26 (plurality). The questions presented are:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used "less intrusive methods" of reviewing text-messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

SCOTUSWiki is here, but, as of today, there is nothing there.

News stories are in the NYTimes and LATimes and WaPo. Blogged here at Volokh Conspiracy.

Concluding that Fourth Amendment precedents already define GPS surveillance in a public place is this thoughtful piece: Does the Fourth Amendment Prohibit Warrantless GPS Surveillance? by Orin Kerr on the Volokh Conspiracy:

Does the Fourth Amendment require a warrant to conduct surveillance of a government-installed GPS device, such as a device installed on a suspect’s car to monitor the car’s location? This issue comes up occasionally, and the DC Circuit has a case pending on the issue. I don’t think I have ever blogged about it, so I want to offer my thoughts. This post will explain why I think the doctrine here was settled by a pair of Supreme court cases from the 1980s, and why those cases draw a pretty reasonable Fourth Amendment line.

My personal view is not far off, but with a caveat: United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), two beeper tracking cases, are hard to overcome. The only real difference is that the beeper cases had to be surveilled up close. GPS doesn't require the observer to leave the office. But that is the Fourth Amendment. Somehow, the upheaval in technology since Knotts and Karo (see, e.g., Kyllo, the thermal imaging case) has to be accounted for under the "reasonable expectation of privacy."

The New York Court of Appeals decision in People v. Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (May 12, 2009), posted here, is hard to disagree with, too. And it distinguishes Knotts and Karo under the state constitution:

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

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

Ever the originalist, Justice Scalia, wrote the opinion in Kyllo v. United States, 529 U.S. 334 (2001), but Kyllo involved surveillance of the home, a significant distinction.

Where does Kyllo and the reasonable expectation of privacy go from here? It is not a violation of the Fourth Amendment to use basic police work and tail a suspect. That's what the police did before beepers. With beepers, their target didn't have to be in sight, but they at least had to be nearby. Now, with GPS, tracking can occur for weeks or months or years without even being in the same city, state, or country. The battery has to be replaced periodically on a transmitter on a vehicle (wiring it in probably would require a warrant, but that's not even clear). A cellphone, however, has its own power. As to police cellphone tracking with the complicity of cellphone providers see posts here, here, and here, referring to 8 million law enforcement requests for cellphone GPS tracking, without a warrant.

Also, how does Katz's "reasonable expectation of privacy" standard fit in? Katz had a reasonable expectation of privacy in his phone calls even though he could be seen in the phone booth:

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. See Lewis v. United States, 385 U.S. 206, 210; United States v. Lee, 274 U.S. 559, 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253; Ex parte Jackson, 96 U.S. 727, 733.

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye - it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

Then there is Bond v. United States, 529 U.S. 334 (2000), which seemingly offers some support. There, a bag in the overhead of a bus was subject to manipulation, and the Court rejected that the bag is open to being felt up by the police as a matter of course because the expectation of privacy still protected it:

Here, petitioner concedes that, by placing his bag in the overhead compartment, he could expect that it would be exposed to certain kinds of touching and handling. But petitioner argues that Agent Cantu's physical manipulation of his luggage "far exceeded the casual contact [petitioner] could have expected from other passengers." Brief for Petitioner 18-19. The Government counters that it did not.

Our Fourth Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that "he [sought] to preserve [something] as private." Smith v. Maryland, 442 U. S. 735, 740 (1979) (internal quotation marks omitted). Here, petitioner sought to preserve privacy by using an opaque bag and placing that bag directly above his seat. Second, we inquire whether the individual's expectation of privacy is "one that society is prepared to recognize as reasonable." Ibid. (internal quotation marks omitted). When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent's physical manipulation of petitioner's bag violated the Fourth Amendment.

By Katz, the phone had long before become "vital." Now GPS.

As Kerr recognizes, technology now advances almost monthly, not over decades. And the Fourth Amendment jurisprudence of the Court has not kept up because it hasn't taken a case that resolves any of these issues.

Thirty-five years ago, Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev, 349, 384 (1974), essentially predicted what GPS has done to our expectation of privacy:

An actual, subjective expectation of privacy ... can neither add to, nor can its absence detract from, an individual's claim to fourth amendment protection. If it could, the government could diminish each person's subjective expectation of privacy merely by announcing half-hourly on television that ... we were all forthwith being placed under comprehensive electronic surveillance.

What about the "right to be let alone"? See Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting) (discussed in the Treatise § 1.26):

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

What will SCOTUS do? We already know, just from our experience, that there are at least four votes in favor of broad GPS surveillance. The other five are all, to me, wild cards on this issue.

Telling the defendant that a drug dog was coming, it was apparent that the defendant would not have felt free to leave, so he was detained. State v. Mathis, 232 Ore. App. 286, 222 P.3d 39 (2009):

In the totality of those circumstances, after Banks told defendant that a drug dog was on its way, no objectively reasonable person in defendant's position would have believed that she was free to leave pending the drug dog's arrival. See, e.g., Hall, 339 Ore. at 19 (concluding that "it [is] difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a pending warrant check"). Regardless of the imprecision and uncertainty inherent at the margins of the Holmes formulation, the totality of Banks's conduct so transcended "ordinary social intercourse," Holmes, 311 Ore. at 410, as to unambiguously communicate to defendant that a search was bound to occur and that she had no choice in the matter. See State v. Dahl, 323 Ore. 199, 207-08, 915 P2d 979 (1996) (police order to the defendant to come out of his house with his hands up constituted a show of authority, and an unlawful seizure under Article I, section 9, in that it effectively "deprived [the] defendant of any choice in the matter"); State v. Shaw, 230 Ore. App 257, 263, 215 P3d 105 (2009) (officer's request that the defendant come over and speak with him was not a stop where officer did not engage in a show of authority "that would have indicated to defendant that he had no choice but to talk to him").

A black drawstring bag found under the seat of defendant’s car that had been lawfully impounded could be inventoried under the local inventory policy, an ordinance. State v. Stone, 232 Ore. App. 358, 222 P.3d 714 (2009).*

Defendant’s stop was potentially unlawful, and the trial court failed to make a specific finding on the question of whether he was subjectively free to leave when he consented, so a remand was required. State v. Hemenway, 2009 Ore. App. LEXIS 1954 (December 9, 2009).*

Defendant was asked about consent to search a car, and he said that it wasn’t his, it was his sister’s and she wasn’t around. He lacked standing to contest the search. United States v. Winters, 2009 U.S. Dist. LEXIS 114353 (W.D. La. September 22, 2009).*

Defendant’s property was subjected to a consent search authorized by a third person with permission to enter and sufficient control. His argument about a wrongful eviction, while “cogent and well-briefed” is not pertinent. United States v. Sexton, 2009 U.S. Dist. LEXIS 114014 (N.D. Ind. December 7, 2009).*

Defendant was driving the wrong way on a freeway entrance ramp. When he could not produce a driver’s license, there was reasonable suspicion to extend the stop longer. United States v. Rodriguez-Gamboa, 2009 U.S. Dist. LEXIS 114192 (D. N.M. November 12, 2009).*

The DEA’s seizure of the premises under Segura while a search warrant was obtained was reasonable. United States v. Bravo-Zamora, 2009 U.S. Dist. LEXIS 114478 (M.D. Ala. November 20, 2009).*

The NYPD policy that officers who discharge their firearms resulting in death or injury must be subjected to a breath test is constitutional. Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009):

We hold as follows: (1) the District Court did not make a "clearly erroneous assessment of the evidence" when it found that the primary purpose of the breathalyzer policy was not the NYPD's "general interest in crime control" and thus fell under the "special needs" doctrine of our Fourth Amendment jurisprudence; (2) the fact that crime control was one purpose--but not the primary purpose--of the breathalyzer policy does not bar the application of the "special needs" doctrine to the breathalyzer policy; and (3) based on the record at this stage of the proceedings, the breathalyzer policy is reasonable under the three-factor balancing test of the "special needs" doctrine. We conclude, therefore, that the District Court's denial of plaintiffs' motion for a preliminary injunction was not an abuse of discretion.

. . .

Finally, we recognize that the NYPD's reputation in the eyes of the public is directly tied to its effectiveness as a police force. See, e.g., Pappas v. Giuliani, 290 F.3d 143, 149 (2d Cir. 2002) (explaining that negative "public perception ... [can] harm the mission of the Police Department"); see also Lidster, 540 U.S. at 425 (noting that information volunteered by the public plays a "vital role in police investigatory work"). Thus, to the extent that the breathalyzer policy improves the NYPD's public reputation, it furthers an important governmental interest.

In light of each of these factors, we conclude that "'the special need[s]'" asserted by the NYPD outweigh the "'privacy interest advanced'" by plaintiffs. Amerson, 483 F.3d at 83 (quoting Cassidy, 471 F.3d at 75). Accordingly, we hold that, on the record before us, plaintiffs have not demonstrated a "likelihood of success on the merits," Plaza Health, 878 F.2d at 580, because the breathalyzer program is reasonable under the Fourth Amendment, based on this record. As a result, the District Court did not abuse its discretion in denying plaintiffs' motion for a preliminary injunction.

An open line 911 call with static on the line is not per se an exigent circumstance. More is required than a 911 call. United States v. Martinez, 686 F. Supp. 2d 1161 (D. N.M. 2009)Motion granted by 2010 U.S. Dist. LEXIS 21585 (D.N.M., Feb. 25, 2010):

The range of 911 calls lie on a spectrum. At one end of the spectrum are those frantic calls from a person inside a home who is able to say someone is attacking him or her, or a member of the family. Such a call alone might be enough to provide a basis for the exigent-circumstances exception. See West v. Keef, 479 F.3d at 759 ("The 911 call from Plaintiff's twelve-year-old son, which included his belief that his mother was 'going crazy,' that she was c[t]rying to kill herself,' that she was 'trying to cut her[self] with a knife' and other statements to the same effect, are, standing alone and in context, sufficient to justify the warrantless entry."). At the other end of the spectrum is a 911 call where there is no identifiable caller nor specified emergency. The Court believes that this latter category of calls, in which there is no identifiable caller nor specified emergency, is the least likely to justify a warrantless entry.

At probably the very limit of this spectrum is the static-only open-line call, where no one speaks and there is only static. A static-only call is unlike a hang-up call or a call where the individual is unable to give a complete explanation of his emergency. In the latter situation, the dispatcher and the dispatched police have a firmer basis for concluding someone at the residence called 911. In a static-only call, however, there are other, equally plausible explanations for the call. Bad weather or bad telephone lines are as likely to place such calls as is a person in immediate need of aid to protect his or her life. See Tr. at 165:17-23 (Court, Lind). The evidence is in equipoise. The burden is thus on the United States -- and ultimately on the police at the scene -- to show that there is something more than an open-line 911 call to establish exigent circumstances. The Court believes that static open-line 911 calls -- as opposed to hang-up calls or incomplete-information calls -- fall into the category of calls to which the Tenth Circuit alluded in United States v. Najar that do not, standing alone, justify a warrantless entry. Thus, regardless whether other 911 calls may, in other cases, alone establish exigent circumstances, the Court does not believe the open-line 911 call in this case, without more, provides a sufficient basis for the exigent-circumstances exception.

During a patdown, the officer felt a bulge which he knew was not a weapon. He asked the defendant what it was, and the defendant said “It’s drugs.” Miranda had not attached at that point, so the statement and the drugs were admissible. United States v. Alcantara, 2009 U.S. Dist. LEXIS 114990 (S.D. N.Y. December 2, 2009):

The legal analysis of what occurred after Molina felt the bulge in Alcantara's pocket hinges on Molina's subjective belief at the time. If Molina had been uncertain as to whether the bulge was a weapon, he would have been entitled simply to remove it. See, e.g., United States v. Oates, 560 F.2d 45, 62 (2d Cir. 1977). Molina testified, however, that although he could not tell precisely what the bulge was, he knew it was not a weapon. (10/28/09 Tr. at 55-56.) This led Molina to ask Alcantara what was in his pocket, which elicited Alcantara's response that it was drugs. Because Alcantara had not been given a Miranda warning at this point, the exchange between Molina and Alcantara potentially implicated the defendant's Miranda rights. We address this Miranda issue posed by the patdown in the section directly below.

Ultimately, however, it is only the admissibility of Alcantara's statements during the patdown -- not the physical evidence recovered from his pocket -- that depends on whether a Miranda warning should have been given. Alcantara may not have understood that he had a right to refuse to answer Molina's question, but he nevertheless told Molina that the bulge consisted of drugs. At that point, Molina had probable cause to reach into Alcantara's pocket and retrieve the drugs, see Oates, 560 F.2d at 63, which is legally sufficient to recover the drugs even if Alcantara's response to Molina's question during the patdown was an improperly un-Mirandized statement. See generally United States v. Morales, 788 F.2d 883, 886 (2d Cir. 1986) (absent trickery or coercion, an improperly un-Mirandized statement can furnish probable cause). Thus, under any Miranda scenario, there would be no basis for suppressing the cocaine recovered from Alcantara's pocket.

There was insufficient evidence defendant was in the place to be entered, of another person, to justify this entry. United States v. Luckey, 2009 U.S. Dist. LEXIS 115260 (S.D. N.Y. December 10, 2009):

Thus, a threshold question must be answered when law enforcement enters a home solely on the power of an arrest warrant: Did the officers know or have reason to know that they were entering a home belonging to a third party but not the arrestee? If the answer is yes, then Steagald controls. The question of whether the officers knew or had reason to know that they were entering the home of a person not named in the arrest warrant is another way of approaching the first prong of the test stated in Lauter: Where the officers had no reasonable basis to believe they were entering an arrestee's residence, Steagald requires a search warrant, consent, or exigent circumstances. Of course "[w]hat a citizen is 'assured by the Fourth Amendment ... is not that no government search of his house will occur' in the absence of a warrant or an applicable exception to the warrant requirement, 'but that no such search will occur that is 'unreasonable.''" 83

83 Lovelock, 170 F.3d at 343-44 (quoting Illinois v. Rodriguez, 497 U.S. 177, 183 (1990)).

. . .

In the totality of circumstances, the officers had reason to know they were entering the home of a person not named in the arrest warrant. Under Steagald, to enter apartment 1R, the officers needed a search warrant, consent, or exigent circumstances, all of which they lacked. Even if Steagald does not control, the information possessed by the officers was insufficient to support a reasonable belief that Lee was residing in apartment 1R or there at the time of the entry.

IV. CONCLUSION

The Court is acutely aware that crime and evidence of crime is often concealed within homes, as the facts of this case seem to illustrate. Illegal activity within homes is of "grave concern to society, and the law allows such crime to be reached on proper showing." "The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a police [officer] or Government enforcement agent." I have no doubt the officers here were acting in good faith to apprehend a fugitive and to enforce the laws that help to ensure a safe and orderly society. Law enforcement must, however, conduct itself in accord with the commands of the Constitution.

Defendant’s less than half-hearted argument that he had standing in a borrowed van was tantamount to an abandonment of the argument on appeal. United States v. Crisp, 355 Fed. Appx. 378 (11th Cir. 2009) (unpublished).*

In his brief, Crisp refers only three times, in passing, to the reasonableness of his privacy expectation. He alludes in one sentence to his pretrial suppression argument; he devotes two sentences to the proposition that his "custody and control over the van" gave him "a reasonable expectation of privacy"; and he asserts in his conclusion, without support, that he "had an expectation of privacy in the borrowed vehicle." Such cursory treatment of the issue that was dispositive in the district court--and thoroughly discussed in its order--works an abandonment of the issue on appeal. Without a legitimate expectation of privacy in the van, Crisp cannot challenge the validity of the search.

Defendant’s consent to a general search of his house was sufficient to open a false bottomed can. He also did not object to the use of a dog in the search [like anybody can know they can?]. United States v. Duncan, 2009 U.S. App. LEXIS 26711 (11th Cir. December 8, 2009) (unpublished).*

Habeas petitioner had a full and fair opportunity to and did litigate his Fourth Amendment claims in Kansas state court, so his COA is denied. Scott v. Werholtz, 355 Fed. Appx. 203 (10th Cir. 2009) (unpublished).*

The defendant was arrested on drug charges, and the police let him keep his cellphone while they discussed the possibility he would snitch for them. When it became apparent he wouldn’t snitch, they took the cellphone and searched it. It was still incident to the arrest. United States v. Georgiou, 2009 U.S. Dist. LEXIS 114729 (E.D. Pa. December 7, 2009):

As previously stated, Agent Joanson testified that at the time Georgiou was placed into custody on September 17, 2008, the Government believed that there was a possibility that Georgiou would cooperate with the FBI and "make recordings against other targets." (N.T. at 41-42.) The reason why Georgiou was not segregated from his devices, according to Agent Joanson, was because the FBI "like[s] to have the individual to have their cell phone or their Blackberry so that when they call these other targets, they have their own equipment and their own phone number." (Id. at 42.) Agent Joanson further explained that "when it became less and less likely that Mr. Georgiou was going to cooperate in that fashion, we separated him from his electronic devices." (Id.) In light of Agent Joanson's testimony, the Court finds that the delay in seizing Georgiou's devices was entirely reasonable under the circumstances.

In a case involving the arrest of persons actually innocent, the police failure to include every known fact in an arrest affidavit did not show that they made a misstatement that misled the magistrate. Also, a prosecutor reviewed the papers before filing. Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir. 2009)*:

The Ewings contend that the officers omitted other information casting doubt on Shirk's identification of Heather. But "[t]he government need not include all of the information in its possession to obtain a search warrant .... The omission of facts rises to the level of misrepresentation only if the omitted facts 'cast doubt on the existence of probable cause.'" United States v. Johns, 948 F.2d 599, 606-07 (9th Cir. 1991) (quoting United States v. Dennis, 625 F.2d 782, 791 (8th Cir. 1980)); see also United States v. Streich, 759 F.2d 579, 586 (7th Cir. 1985) (noting that Illinois v. Gates does not require officers to apprise a judicial officer of everything); United States v. Luciano, 785 F. Supp. 878, 881 (D. Mont. 1991) ("Certainly, an investigating officer cannot be expected to include the sum total of all of his investigation in the affidavit supporting a search warrant."). None of the details appellants cite cast doubt on the existence of probable cause.

Brandon Mayfield, who settled his false arrest case against the government for $2M, did not have Art. III standing to challenge the FISA provisions of the PATRIOT Act after he settled. The existence of a past injury did not show that he was going to be searched again. Mayfield v. United States, 588 F.3d 1252 (9th Cir. 2009), lower court opinion Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Or. 2007):

Mayfield unquestionably had standing to seek damages and injunctive relief when he filed the original complaint. The requirements for seeking such relief, however, differ from the requirements for seeking a declaratory judgment. See Lyons, 461 U.S. at 111. Having bargained away all other forms of relief, Mayfield is now entitled only to a declaratory judgment. Although it is undisputed that the government retains materials derived from the FISA searches and surveillance of Mayfield's property, the only relief that would redress this alleged Fourth Amendment violation is an injunction requiring the government to return or destroy such materials. Under the terms of the settlement agreement, Mayfield cannot seek injunctive relief. 7 Nor is it likely that the government will return the materials of its own volition, as it is under no legal obligation to do so, and has stated in its brief that it does not intend to take such action. Finally, the district court did not-- in conjunction with its opinion sua sponte order the government to return or destroy the derivative materials, but merely stated that "it is reasonable to assume that the Executive branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued." Mayfield, 504 F. Supp. 2d at 1034.

See article in Pogo Was Right: Ninth Circuit rejects Patriot Act challenge for lack of standing.

Defendant’s stop was without reasonable suspicion of criminal activity, and his subsequent flight didn’t rise to the level of reasonable suspicion. State v. Coleman, 2009 Ohio 6471, 2009 Ohio App. LEXIS 5411 (8th Dist. December 10, 2009):

[*P24] In this case, there is no question that once Coleman took off running, the police had reasonable suspicion of criminal activity. The question here is whether the police had reasonable suspicion to pull Coleman out of his vehicle -- based upon very few articulable facts. We find that based on Detective Lewandowski's testimony, he did not have reasonable suspicion to justify a Terry stop of Coleman. We further find that this is not the "close case" presented in Pettegrew.

[*P25] Detective Lewandowski testified that he and his partner received reports from an undercover officer that there was a woman flagging down cars in the vicinity of East 71st Street and Wade Park Avenue, an area of high-drug activity. They arrived, did not see the woman, but did see Coleman in his vehicle with two men either standing by or leaning in Coleman's car (he first said several people "standing by" and later said two men "leaning in"). As Detective Lewandowski approached, two of the men dispersed. Coleman was immediately pulled out of his car at that point by another officer.

[*P26] Reviewing the totality of the circumstances in this case, we find that the state did not present specific or articulated facts sufficient to justify a Terry stop of Coleman. Everything the police did following this illegal stop was also improper.

The defendant could be ordered from the car during a traffic stop, and the officer saw a hypodermic needle cap at the defendant’s feet after he got out. They were in a high crime area, and that was reasonable suspicion. State v. McClendon, 2009 Ohio 6421, 2009 Ohio App. LEXIS 5378 (10th Dist. December 8, 2009).*

The motion to suppress should not have been granted. It was signed by a judicial officer and not an executive official as required by law. Also, the trial court’s looking at the prosecutor’s legal advice and not the police conduct was erroneous under the good faith exception. [If it was valid, why apply GFE?] State v. Commins, 2009 Ohio 6415, 2009 Ohio App. LEXIS 5368 (12th Dist. December 7, 2009).*

During execution of a search warrant, “a cellular telephone was ... an ‘implement[ ] ... related to the illegal possession ... or distribution of cocaine,’” where the affidavit also talked about the use of communication devices, so it could be seized under the warrant. Answering a call that came in just after it was seized was not unreasonable. Commonwealth v. Depina, 2009 Mass. App. LEXIS 1482 (December 8, 2009).

Just saying “steroids” in an affidavit for a search warrant was not insufficient because state law showed that injectable drugs were controlled. Commonwealth v. Takvorian, 75 Mass. App. Ct. 836, 917 N.E.2d 776 (2009).*

Undercover officers went to a crack addict and asked where they could buy crack, and he told them defendant’s apartment. They all went to the apartment and a crack deal was made, so that was probable cause for a search. The CI was corroborated. State v. Hall, 2009 Ohio 6390, 2009 Ohio App. LEXIS 5337 (2d Dist. December 4, 2009).*

A black padlocked cloth bag removed from the trunk of a car to be inventoried could not be inventory searched under the local policy. However, it was subject to search because the officer could smell marijuana in it. State v. Robinson, 2009 Ohio 6395, 2009 Ohio App. LEXIS 5336 (2d Dist. December 4, 2009).*

DOJ prosecutor Jonathan Tukel had a reasonable expectation of privacy in personal e-mail to his lawyer sent from a DOJ computer where the government permitted personal use of the government e-mail account. It was his e-mails being sought, so he was permitted to intervene in another's case. Convertino v. United States DOJ, 2009 U.S. Dist. LEXIS 115050 (D. D.C. December 10, 2009):

Mr. Tukel reasonably expected his e-mails with his personal attorney to remain confidential. (Id.) Case law in this jurisdiction is not directly on point but New York gives the Court some direction. "[T]he question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable." In re Asia Global Crossing, Ltd., 322 B.R. 247, 258 (S.D.N.Y. 2005). In order for documents sent through e-mail to be protected by the attorney-client privilege there must be a subjective expectation of confidentiality that is found to be objectively reasonable. See id. at 257 (outlining four factors to determine reasonableness; "(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?"). Each case should be given an individualized look to see if the party requesting the protection of the privilege was reasonable in its actions. See Curto v. Med. World Commc'ns, Inc., No. 03-CV-6327, 2006 WL 1318387, *6 (E.D.N.Y. May 15, 2006); see also O'Connor v. Ortega, 480 U.S. 709, 718 (1987) ("Given the great variety of work environments, ... the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.").

On the facts of this case, Mr. Tukel's expectation of privacy was reasonable. The DOJ maintains a policy that does not ban personal use of the company e-mail. Although the DOJ does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving e-mails sent from his account. (See Tukel's Mot. and Mem. of Law in Opp'n to Pl.'s Mot. to Compel at 4; see also Pl.'s Opp'n to Non-Party Tukel's Mot. to Intervene at 5-6.) Because his expectations were reasonable, Mr. Tukel's private e-mails will remain protected by the attorney-client privilege.

Hat tip to Blog of the Legal Times: District Court Finds Personal E-Mail From Work Still Privileged, by Tresa Baldas:

The party trying to get the e-mails is former federal prosecutor Richard Convertino, who lost his job after his convictions in a high-profile terrorism trial in Detroit were overturned in 2004 due to prosecutorial misconduct. Convertino, who believes he was retaliated against for blowing the whistle on incompetence in the Bush administration’s war on terror, is trying to find out who leaked confidential information about an investigation into his conduct to the Detroit Free Press.

Convertino believes Tukel’s e-mails to his lawyer may shed some light on the matter.

AZ Court of Appeals enjoins probable retaliatory search of judge's chambers

In the ongoing clusterfuck known as Maricopa County where a court security officer was held in contempt and ordered to jail for taking a paper from defense counsel's file in open court, on video, in front of the judge, the Arizona Court of Appeals today issued a temporary injunction against a possible retaliatory search of the judge's chambers and home by the Sheriff's Office.

The Sheriff's Office has accused the judge who held the deputy in contempt of bribery. The first link will take you to another link to other articles.

Maricopa County sounds like a banana republic where the Sheriff can intimidate any official he wants.

Merely claiming a state constitution violation and citing the section without stating that the search was “unreasonable” did not state a civil claim. The word "unreasonable" is required. Wade v. Ferguson, 2009 Ark. 618 (December 10, 2009)* (Arkansas once again exults form over substance to the point it actually brings disrepute on it as an institution.)

Search of defendant’s shoes after a stop on reasonable suspicion was by consent. Anderson v. State, 2009 Ark. App. 804, 2009 Ark. App. LEXIS 981 (December 2, 2009).*

There is no state law right to notice of a right to refuse consent during a knock-and-talk. Dow v. State, 2009 Alas. App. LEXIS 178 (November 25, 2009).*

Flight from a stop without reasonable suspicion led to abandonment of a box with cocaine, but it happened in seconds, so the stop was not attenuated from the abandonment. State v. Williams, 410 N.J. Super. 549, 983 A.2d 1114 (2009):

Flight from an unconstitutional investigatory stop that could justify an arrest for obstruction did not automatically justify admission of evidence revealed during that flight. For such evidence to be admissible, there had to be a "significant attenuation" between the unconstitutional stop and seizure of evidence. As only four or five seconds elapsed between the order to stop and defendant's discarding the cocaine, and there were no significant "intervening circumstances" between the two events, the State failed to show significant attenuation.

The Tenth Circuit discusses at length the basis for a stop under NM law for dealer tags that the officer thought at first were missing, but determined that they were valid, and that should have ended the stop. Continuing the stop was unreasonable. United States v. Pena-Montes, 589 F.3d 1048 (10th Cir. 2009)*:

Viewing the government's asserted factors in concert, we conclude that Officer Hernandez lacked a "particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002) (quotation omitted). To conclude otherwise would grant permission to the APD to detain and question every car with a dealer plate driving along Central Avenue after most dealerships are closed. Cf. Aguilar, 155 P.3d at 773. We decline to sign this blank check. As in McSwain, the law enforcement officer should not have questioned the driver of the vehicle after his sole cause for suspicion was dispelled. Here, that suspicion was dispelled when Hernandez observed the dealer plate in the Yukon's window. At that point, an officer's permissible conduct is limited: "As a matter of courtesy, the officer could explain to drivers in [these] circumstances the reason for the initial detention and then allow them to continue on their way without asking them to produce their driver's license and registration." McSwain, 29 F.3d at 562. Because Hernandez failed to follow this guidance and chose to further pursue his investigation without a basis in reasonable suspicion, his actions violated the Fourth Amendment.

United States v. Monghur, 576 F.3d 1008 (9th Cir. 2009), posted here, was amended 588 F.3d 975 (9th Cir. 2009): Defendant did not waive his reasonable expectation of privacy in a closed container when he revealed it contained a gun in a jailhouse telephone call that he would know would be recorded.

Copar Pumice Co. v. Morris, 2009 U.S. Dist. LEXIS 114195 (D. N.M. October 23, 2009), on an illegal administrative search, resulted in a jury verdict of $1.00. Prior opinions: Copar Pumice Co. v. Morris, 2009 U.S. Dist. LEXIS 56840 (D. N.M. July 6, 2009) (posted here); Copar Pumice Co. v. Morris, 632 F. Supp. 2d 1055 (D. N.M. 2008) (posted here); Copar Pumice Co. v. Morris, 2008 U.S. Dist. LEXIS 42350 (D. N.M. March 21, 2008) (posted here).

Defendant’s vehicle seizure was with probable cause to believe that it was being used to transport drugs, so it was valid as vehicle search or in aid of forfeiture for transporting drugs. United States v. Hall, 354 Fed. Appx. 725 (3d Cir. 2009) (unpublished)* (We don’t see many cases where the basis for the seizure is in aid of forfeiture. That almost always is a post hoc determination.)

Defendant’s stop was valid under Terry for furtive behavior–driving from the scene of a reported crime with his lights off. United States v. Nadal, 354 Fed. Appx. 729 (3d Cir. 2009) (unpublished).*

During a traffic stop, defendant was ordered out of the car, and a gun was seen in plain view. The officer’s intent to search was not binding, so Gant had no application. The fact that defendant was handcuffed in a police car did not prevent entry into the car for the gun in plain view. United States v. Rumley, 588 F.3d 202 (4th Cir. 2009).*

Moreover, Deputy Wagner's intent to search the truck does not transform his lawful request of Ross into the "first step" of an improper search. Rather, Deputy Wagner's request was a "discrete" act that brought the pistol into plain view. Cf. United States v. Moses, 540 F.3d 263, 272 (4th Cir. 2008) (concluding that separate acts of lawfully inserting a key in a lock and unlawfully entering a house without a warrant, while part of a "continuous activity," constituted discrete acts yielding discrete information, "because the use of the key in the lock need not have led to entry of the residence at all").

A search warrant for defendant’s DNA has shown probable cause and nexus. United States v. Abari, 2009 U.S. Dist. LEXIS 114120 (D. Minn. November 19, 2009).*

"'A warrant affidavit [need not contain] an averment of previous reliability, the appropriate inquiry always being whether the informant's present information is truthful and reliable.' United States v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993) (citing United States v. Cochrane, 896 F.2d 635, 641 (1st Cir. 1990)). Information provided by a confidential informant is sufficiently reliable to support probable cause if independently corroborated. See United States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998)." This was. United States v. Giessinger, 2009 U.S. Dist. LEXIS 114218 (D. Neb. November 16, 2009).*

An Internet child pornography investigation in Switzerland led to information being sent to ICE in the U.S. with a screen name which ICE was able to link to the defendant by a P.O. box. This was probable cause for a search warrant for defendant’s computer in Minnesota. United States v. Carruthers, 2009 U.S. Dist. LEXIS 113741 (D. Minn. December 7, 2009).*

Defendant’s search incident occurred nearly three years before Gant, and it was lawful at the time but not lawful under Gant. The court chooses to apply the good faith exception to a pre-Gant search incident attempting to forecast that the Eighth Circuit will follow the majority. United States v. Gray, 2009 U.S. Dist. LEXIS 113436 (D. Neb. December 7, 2009).

There is an impeachment exception to Title III, the same as in the Fourth Amendment. While this is a Title III case, it discusses the history of the impeachment rule under the Fourth Amendment, starting in 1954. United States v. Simels, 2009 U.S. Dist. LEXIS 113151 (E.D. N.Y. December 4, 2009).

By statute, a Washington probation officer must have reasonable cause before a probation search can occur, and, under the Washington exclusionary rule, the inevitable discovery rule does not apply here. State v. Winterstein, 167 Wn. 2d 620, 220 P.3d 1226 (2009).

Even with consent revoked, the government has plenty of probable cause in their investigation to get a search warrant, so the search was valid by inevitable discovery. United States v. Pickett, 2009 U.S. Dist. LEXIS 114234 (E.D. Mich. December 8, 2009).*

More today on LEO access to cellphone GPS

More today on TPMMuckraker on How Easy Is It For The Police To Get GPS Data From Your Phone?.

Police can in some cases track cell phone location by merely telling a court that the information is relevant to an investigation, a legal expert tells TPM -- a fact that may partly explain how law enforcement racked up 8 million requests for GPS data from a single wireless carrier in a year.

An increasingly popular and easy-to-access surveillance tool for police, GPS data is not currently protected by the Fourth Amendment, and the standards for gaining access to the information are murky and highly variable. That's partly because one of the statutes that bears on the issue was passed in the mid-1980s, before many of the technologies involved were invented. And Congress hasn't done much to update the law since.

The issue at stake is the demise of so-called "locational privacy."

The TPMMuckraker article links to NYTimes: A Casualty of the Technology Revolution: ‘Locational Privacy’:

A little-appreciated downside of the technology revolution is that, mainly without thinking about it, we have given up “locational privacy.” Even in low-tech days, our movements were not entirely private. The desk attendant at my gym might have recalled seeing me, or my colleagues might have remembered when I arrived. Now the information is collected automatically and often stored indefinitely.

Privacy advocates are rightly concerned. Corporations and the government can keep track of what political meetings people attend, what bars and clubs they go to, whose homes they visit. It is the fact that people’s locations are being recorded “pervasively, silently, and cheaply that we’re worried about,” the Electronic Frontier Foundation said in a recent report.

Dog sniff of defendant’s car occurred while the officer was resolving the traffic stop and waiting for radio call back, so defendant was detained for it, but not extended because of it. United States v. McBride, 2009 U.S. Dist. LEXIS 113405 (N.D. Ind. December 4, 2009):

The Defendant makes much of the use of the dog, mostly as evidence that he was being detained and was not free to leave. The video does in fact show the Defendant backing away from something that is out of the camera's view with his hands in the air, and the officer telling him to come back and not to back into traffic. However, the fact that the Defendant was not free to leave is not a point of contention. When the dog performed the free air sniff around the car, the traffic violations were not yet resolved. In fact, Officer Gasvoda was still in the process of explaining why he had stopped the Defendant, and continued to do so as Officer Heck circled the car with the leashed dog. He had not yet verified any of the information provided by the Defendant, or determined the status of the unlicensed car or the Defendant's driving status. Thus, the Defendant would not have been free to leave regardless of the dog's presence. See Arizona v. Johnson, 129 S. Ct. at 784 ("For the duration of a traffic stop, ... a police officer effectively seizes everyone in the vehicle, the driver and all passengers."). Simply using a drug-sniffing dog during an otherwise lawful traffic stop does not implicate a defendant's legitimate privacy interests. Illinois v. Caballes, 543 U.S. 405, 409 (2005). If the Defendant means to argue that the presence of the dog subjected him to restraints comparable to those associated with formal arrest, the Court does not find legal support for such a contention.

Defendant claimed that the search of his car was invalid under Gant because he was arrested for failure to identify. His arrest, however, permitted the search under the inventory doctrine because the car was going to have to be towed. There was at least an indication that there was a gun, but the court declined to decide the factual dispute. United States v. Cartwright, 2009 U.S. Dist. LEXIS 113428 (S.D. Ind. December 1, 2009).*

Defendant was Mirandized and agreed to talk to the officers, and this was a factor in finding his consent voluntary on the totality of the circumstances. United States v. Jones, 2009 U.S. Dist. LEXIS 113316 (E.D. Pa. November 24, 2009).*

Frisk of person not named in search warrant was justified by his movements that created apprehension he was armed or had contraband. United States v. White, 2009 U.S. Dist. LEXIS 112795 (W.D. Mo. November 16, 2009).*

Defendant’s consent was shown to be voluntary and not coerced. United States v. Dunning, 2009 U.S. Dist. LEXIS 112849 (W.D. Mo. November 9, 2009).*

Technology Revolution and the Fourth Amendment

Technology Revolution and the Fourth Amendment by Michael Lissner on Cyberlaw.

Exotic dancer wrongfully strip searched at work during execution of a SW

NM exotic dancer wins $5k judgment for an unreasonable strip search conducted during the execution of search warrant in the club she worked in. If the cop had only paid for the dance ...

Update: Some local news found this interesting; see, e.g., Jury: Search violated stripper's rights and NM jury finds dancer's rights were violated on the strip search of a stripper.

Search of a stash house for hostages was on exigent circumstances, so police did not have to plan in advance to get a search warrant. [“Standing” was an issue, but it did not have to be decided.] United States v. Mancinas-Flores, 588 F.3d 677 (9th Cir. 2009):

In light of the principle that an ongoing hostage situation presents exigent circumstances, we find that the search of the stash house was reasonable. In the original phone call, the smugglers threatened to kill and rape the hostages if the ransom remained unpaid. The smugglers agreed to give family members until October 10th to pay the ransom before harming the hostages, but ICE did not locate the stash house until October 10th, and thus time was running out. Further, testimony at the hearing on the motion to suppress indicated that the officers' conclusion that they did not have time to obtain a warrant once they pinpointed the location of the stash house was reasonable. Both an ICE agent and a SAU officer testified about instances in which they waited too long to enter a stash house, resulting in people being raped or killed.

Defendant argues that even if there were exigent circumstances, the government should have prepared in advance to obtain a warrant, and its failure to do so rendered the search unreasonable. He points out that between October 6, when ICE learned of the hostage situation, and October 10, when it located the stash house, ICE took no steps to prepare an application for a warrant or ensure that it could obtain a telephone warrant upon locating the stash house. However, under the circumstances presented, the government was not required to anticipate exigent circumstances and prepare in advance to obtain a warrant.

Officers had probable cause for defendant’s arrest based on observation of apparent delivery of drugs where he had five priors, too. United States v. Burnside, 588 F.3d 511 (7th Cir. 2009)*:

We think the police officers in this case were armed with more than a sufficient amount of information at the time of Burnside's arrest to constitute probable cause. First, the officers were aware of Burnside's five prior felony convictions for the manufacture or delivery of a controlled substance. Second, the officers knew that Burnside was currently on parole from Minnesota for a drug-related offense. Third, Officer Batterham received reliable information from two different informants who claimed that Burnside was a large-scale drug dealer; furthermore, the information supplied by one of the informants buttressed and was consistent with Officer Batterham's knowledge of Burnside's alias, Shorty Bank Roll. Fourth, officers observed Burnside participating in conduct consistent with drug trafficking. Fifth, after Burnside failed to use a turn signal and officers initiated the traffic stop, Burnside drove erratically, made a hurried call on his cell phone, and appeared to make a flight attempt.

Probable cause was shown for a search warrant for defendant’s safe deposit box. Even if not it is close enough for the good faith exception to apply. United States v. Claude X, 2009 U.S. Dist. LEXIS 112641 (W.D. Mo. October 14, 2009) (USMJ R&R), obj. overruled, United States v. Claude X, 2009 U.S. Dist. LEXIS 112640 (W.D. Mo. December 3, 2009):

A search warrant is supported by probable cause if the supporting affidavit presents a fair probability that evidence or contraband will be found in the location to be searched. Supporting affidavits must be read in a common-sense fashion and should be evaluated based on the totality of the circumstances. E.g., United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995); United States v. Edmiston, 46 F.3d 786, 789 (8th Cir. 1995). Defendants complain about the inclusion of information from confidential informants, but the Court need not consider this issue because the remaining information establishes a fair probability that contraband or evidence of drug activity was stored in the safe deposit boxes. Christina insists the affidavit does not connect her to criminal activity, and both Christina and Aarika insist the affidavit does not provide any reason to believe they were storing evidence or contraband in the boxes. Even if they are correct (and, at least with respect to Christina, the Court tends to agree), they miss the point. Probable cause does not require a showing that they were responsible for any evidence or contraband in the boxes, nor does it require a showing that they were criminally culpable. The law only requires a fair probability that evidence or contraband will be found, not that any particular person placed it in the location. See United States v. Stults, 575 F.3d 834, 843 (8th Cir. 2009). The affidavit provided probable cause to believe Claude was using the boxes to store evidence or contraband. A fair, common-sense reading of the affidavit presents probable cause to believe:

1. Claude was engaged in drug activity.
2. Claude frequently arranged for or oversaw the drug transactions but did not always become personally involved.
3. Claude had large sums of money and no source of income.
4. The boxes were accessed with unusual frequency, particularly in light of his lack of income.
5. The boxes were sometimes accessed on multiple times in a single day, or on consecutive days.

It was reasonable for the judge issuing the warrant to conclude that Claude was -- personally or through others -- storing drugs or money in the boxes. Whether those "others" (here, Christina) knew about the illicit source of money or otherwise have culpability is irrelevant.

The defendant consented only to an entry into the apartment and not a search, but there was sufficient factual basis for a Buie protective sweep which was limited in scope. United States v. Hassock, 676 F. Supp. 2d 154 (S.D. N.Y. 2009).*

Defendant’s guilty plea waived appeal of his motion to suppress. He could not have relied on Gant, which had not yet been decided. The motion to suppress, however, was sufficient to raise a Gant scope of search incident claim, but the motion to suppress fails on the merits because of defendant’s actions created reason to believe he was holding at the time of arrest. State v. Snapp, 219 P.3d 971 (Wash. App. November 9, 2009).

The Supreme Court decided an emergency entry case today Michigan v. Fisher, 2009 U.S. LEXIS 8773 (December 7, 2009) (per curiam), on the cert papers, reversing the Michigan Court of Appeals which suppressed an entry into a house where a guy was inside going "crazy" and the officers could see a bloody hand. To the Court, that was essentially the same as Brigham City v. Stuart, 547 U. S. 398 (2006), on the severity of the injury.

Even a casual review of Brigham City reveals the flaw in this reasoning. Officers do not need ironclad proof of “a likely serious, life-threatening” injury to invoke the emergency aid exception. The only injury police could confirm in Brigham City was the bloody lip they saw the juvenile inflict upon the adult. Fisher argues that the officers here could not have been motivated by a perceived need to provide medical assistance, since they never summoned emergency medical personnel. This would have no bearing, of course, upon their need to assure that Fisher was not endangering someone else in the house. Moreover, even if the failure to summon medical personnel conclusively established that Goolsby did not subjectively believe, when he entered the house, that Fisher or someone else was seriously injured (which is doubtful), the test, as we have said, is not what Goolsby believed, but whether there was “an objectively reasonable basis for believing”that medical assistance was needed, or persons were in danger, Brigham City, supra, at 406; Mincey, supra, at 392.

It was error for the Michigan Court of Appeals to re-place that objective inquiry into appearances with its hindsight determination that there was in fact no emergency. It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. But “[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties.” Brigham City, supra, at 406. It sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands.

Dissenting was Stevens, joined by Sotomayor, complaining that the trial court apparently got it right that Michigan law required proof that immediate aid was required, and here there was insufficient proof of that.

Today, without having heard Officer Goolsby’s testimony, this Court decides that the trial judge got it wrong. I am not persuaded that he did, but even if we make that assumption, it is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind. We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer’s actions, particularly in a case tried in a state court. I therefore respectfully dissent.

Accordingly, there is nothing here to discern Sotomayor's Fourth Amendment leanings, yet.

Detroit News has an article on the case this afternoon.

SCOTUSWiki does not include it yet, but likely soon.

Defendant was visiting and sitting on the porch of a house when police arrived to execute a search warrant. The frisk of the accused was proper. Germany v. United States, 984 A.2d 1217 (D.C. 2009):

The parties agree that the MPD officers' detention of appellant during the execution of the search warrant was lawful, and that the sole issue presented is whether the weapons pat-down was constitutionally permissible. As one appellate court observed a few years ago, "[w]hether law enforcement officers may detain and pat-down persons encountered during the execution of a narcotics search warrant in a private home is far from settled." State v. Howard, No. 2003-CA-0058, 2004 Ohio App. LEXIS 2256, at P29 (Ohio Ct. App. June 2, 2004) (italics added). That remains true today; in particular, the Supreme Court has not directly addressed the question of whether, consistent with the Fourth Amendment, police may frisk the occupants of a private residence during the execution of a search warrant for narcotics and weapons. However, a number of decisions by the Supreme Court and this court provide useful guidance.

Law of the case bound the trial court to follow the prior state supreme court ruling on the suppression issue which was denied. The trial court offered to hear any new evidence defendant had, but he had none, so the prior ruling was correctly followed. Ross v. State, 22 So. 3d 400 (Miss. App. 2009).*

District Court erred in granting a motion to suppress in the face of broad consent to search. The officers inside observed a blood trail in the house, and they would have been derelict in not following it. United States v. Coleman, 588 F.3d 816 (4th Cir. 2009):

Not only was the bedroom within the scope of the consent search, but the officers also would have been derelict in their duty not to follow a blood trail from the kitchen. Far from not being part of the crime scene, as Coleman argues, see Br. of Appellee 15, nothing less than a trail of blood led to the master bedroom from the kitchen where the shooting occurred.

Further, at the time of the search the officers had no way of knowing whose blood trail they were following. They knew that Coleman had been shot, but Sergeant McIntosh also testified that there were reports that one of the intruders may have been shot as well. At a minimum, the trail of blood was likely to lead to evidence of some kind, even if nothing more than physical corroboration of events as told by witnesses. Furthermore, for all that the officers knew, the trail of blood could have led directly to a suspect, or it could have led to another victim in need of assistance. In short, there were any number of reasons why officers, based on what they knew, behaved reasonably by following the blood trail.

Plaintiffs were police supervisors and were fired by the Baltimore mayor, and he directed that their badges and IDs be retrieved. This was arguably a search and seizure, but it was in an employment context, not a law enforcement context, and it was not shown to be unreasonable.
Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009).*

Consent to search does not require that every officer know about it or its limits. A bag was requested to be opened because consent did not include breaking into it. United States v. James, 356 Fed. Appx. 636 (4th Cir. 2009) (unpublished):

However, "general, blanket consent to search ... by itself would not permit officers to break into a locked container located within the area being searched." Jones, 356 F.3d at 534 (emphasis in original).

Here, James informed Officer Michael Brewton that law enforcement could search the vehicle he was driving. While this information was not specifically conveyed to the other officers on the scene prior to the initiation of the search, this does not render the consent invalid. Moreover, Brewton testified that he would have instructed the officers to stop the search if James had not consented. Although the luggage found in the vehicle was locked, officers did not force it open. James informed Brewton that his wife, a passenger, had the keys, and in the meantime Mrs. James had willingly unlocked a bag and turned the keys over to Small, without objection from James. His "failure to object (or withdraw his consent) ... is a strong indicator that the search was within the proper bounds of the consent search." Jones, 356 F.3d at 534.

Second entry to seize a gun was not a flagrant violation of the Fourth Amendment, so the gun would not be suppressed. United States v. Ramage, 2009 U.S. Dist. LEXIS 111639 (N.D. W.Va. July 13, 2009)*:

There are three factors that are relevant and which must be considered by the Court in determining whether the primary taint has been purged: "1) the amount of time between the illegal action and the acquisition of the evidence; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct." Id. citing Brown v. Illinois, 422 U.S. 590, 604-604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). "The burden of showing admissibility rests … on the prosecution." United States v. Seidman, 156 F.3d 542, 548 (4th Cir. 1998).

Applying the first Brown factor, very little time could have elapsed between Deputy Gearde's unlawful entry into the Ramage home and when Mrs. Ramage escorted him to the upstairs bedroom and showed him where the gun was located. However, suppression is not necessarily warranted in the face of the lack of a significant intervening period of time. "[T]he Brown test does not require that each of the factors set forth be resolved in favor of the Government." United States v. Wellins, 654 F.2d 550, 554 (9th Cir. 1981). This is particularly the case where as here the second and third factors weigh heavily in favor of admissibility.

With respect to the second Brown factor, Melissa Ramage's actions in regard to Deputy Gearde and the gun after the unlawful entry constitute significant intervening circumstances. She was engaged in conversation with Deputy Gearde concerning whether a gun was located in the residence. She indicated to the deputy sheriff that a gun was in a box in her bedroom. When the deputy sheriff asked her if he could go retrieve it, she declined reasoning that her house was a mess. When the deputy sheriff insisted and suggested they go together, she agreed by leading him upstairs directly to the box and gun under the bed. After the unlawful entry into the home, Melissa Ramage never once asked the deputy sheriff to leave.

Finally, with respect to the third Brown factor, the evidence shows that Deputy Gearde only opened the screen door and stepped across the threshold of the Ramage front door to engage the two women who had been watching the events outside through the front windows. While the purpose of coming back and entering the house was to assure that a firearm was not present, the deputy was still processing a domestic call; did not want the husband returning to the house if a firearm was present for fear that the initial dispute would again flare up and deteriorate into a violent episode; and did not have any knowledge or reasonable suspicion that a gun was present. The entry was not made for the purpose of retrieving a firearm that Deputy Gearde had earlier been told was present (when he first talked to Mrs. Ramage) but did not seek to seize until he later learned from his fellow deputy that Defendant Ramage was a convicted felon prohibited from possessing a firearm. The second entry was not made in flagrant disregard of Defendant's Fourth Amendment rights.

Accordingly, the Court concludes that the United States has carried its burden of proving that the evidence discovered (the scoped gun and ammunition) was acquired "sufficiently independent of the unlawful invasion to purge any taint arising from the initial entry." United States v. Seidman, supra at 549-550.

Lengthy affidavit for search warrant in a multi-defendant conspiracy case failed to show probable cause as to this defendant, and it was so lacking that the good faith exception did not apply as to this defendant. United States v. Graska, 2009 U.S. Dist. LEXIS 112541 (E.D. Tenn. November 10, 2009):

There is nothing whatsoever to indicate that the first or second exceptions apply in this case. However, while this affidavit is not "bare bones" in the usual sense, it is detailed as to other persons and property, but not to the defendant or this property. The connection between the defendant and wrongdoing of any sort was not established by informants or by observations during investigation, but rather by facially innocent connections between the defendant and others for whom probable cause abounded. There is such a disparity between probable cause linking defendant to illegal activity that the Court cannot find that official belief in its existence to be reasonable. Accordingly, the Court finds that the good faith exception does not apply.

Since the existence of any connection between the defendant and the properties at 1806 and 1810 Roxella Street were only found during the illegal search, the subsequent consents and searches and items found thereby are the "fruit of the poisonous tree" and should likewise be suppressed.

Defendant who was a bailee of boxes did not have standing to challenge a search of the boxes. United States v. Morales, 2009 U.S. Dist. LEXIS 112613 (D. Kan. December 3, 2009).*

Defendant who was told that there was an arrest warrant for him who had a complete defense had standing to challenge the warrant. Ord v. District of Columbia, 587 F.3d 1136 (D.C. Cir. 2009).*

Criticizing Comprehensive Drug Testing, posted here, is United States v. Farlow, 2009 U.S. Dist. LEXIS 112623 (D. Me. December 3, 2009). In this case, the defendant asserted that the search could be limited to hash marks on an image, but a government witness testified that the hash marks changed with every save of the image. Therefore, it was not required as a limitation on the search.

Admittedly, if CDT applied here, and the Government had forsworn or been ordered to forswear the plain view doctrine in searching, and a third party had segregated all photographs not directly related to the search for evidence of the state of New York crimes, either Sgt. Lang would not have discovered the child pornography or the third party would have been compelled not to have disclosed its existence. But, no other circuit has gone as far as the Ninth to require such significant preconditions on the issuance of search warrants for computers. In the Court's view, the far preferable approach is to examine the circumstances of each case, to assess the validity of the computer search protocol, to determine whether the police strayed from the authorized parameters of the search warrant, and to hold the police to constitutional standards in the context of a motion to suppress. If the police conduct is as egregious as the Ninth Circuit found in CDT, the Court can consider appropriate remedies. This fact-intensive, considered analysis is what Upham contemplates. Upham, 168 F.3d at 536 (stating that "[t]his problem arises in a variety of different contexts and in many permutations; matters of degree are involved and there is probably no single rule that resolves all such situations").

In the First Circuit, Upham remains the law. Id. at 535 (stating that "a search of a computer and co-located disks is not inherently more intrusive than the physical search of an entire house for weapons or drugs"). Whether Upham authorizes a deliberate law enforcement search of Mr. Farlow's computer for child pornography under the guise of a search for a single non-pornographic digital photograph of a bodybuilder is highly questionable. Id. (stating that "[t]he requirement of particularity arises out of a hostility to the Crown's practice of issuing 'general warrants' taken to authorize the wholesale rummaging through a person's property in search of contraband or evidence").

But, at least in the narrow context of this motion to suppress, Mr. Farlow's argument fails on the facts. Id. at 636 (stating that "[t]his problem arises in a variety of different contexts and in many permutations; matters of degree are involved and there is probably no single rule that resolves all situations"). Here, Sgt. Lang has declared under the penalty of perjury "[t]he only reasonable way for an examiner to locate most of the copies of a particular image is to do it visually." Decl. of Glenn Lang at 2. Sgt. Lang rejected the defense assertion that tracking the hash mark would have led to the bodybuilder photograph, since "[e]very time one pixel of a picture is changed the hash value is completely different. If the user were to open the picture and save it to another location with a picture viewer, the hash can be changed via compression. When a file is deleted, its hash value changes." Id. Based on this evidence, Sgt. Lang's method of searching the Farlow computer was "about the narrowest definable search and seizure reasonably likely to obtain the images." Upham, 168 F.3d at 535. This is especially true here, where, as the Magistrate Judge pointed out, Upham emphasized that "[t]he warrant process is primarily concerned with identifying what may be searched or seized--not how--and whether there is sufficient cause for the invasion of privacy thus entailed." Id. at 537 (emphasis in original).

More on Sprint and GPS

See Warrantless electronic surveillance of you by Featheriver about a Ph.D. dissertation on the subject of Sprint's cooperation with law enforcement in giving away GPS information on telephones:

Christopher Soghoian, a graduate student at Indiana University’s School of Informatics and Computing has been gathering data and analyzing data about such surveillance in preparation of his PhD dissertation. He secured and released an audio recording of “Sprint/Nextel’s Electronic Surveillance Manager, Paul Taylor, describing how his company has provided GPS location data about its wireless customers to law enforcement over 8 million times. That’s potentially millions of Sprint/Nextel customers who not only were probably unaware that their wireless provider even had an Electronic Surveillance Department, but who certainly did not know that law enforcement offers could log into a special Sprint Web portal and, without ever having to demonstrate probable cause to a judge, gain access to geolocation logs detailing where they’ve been and where they are.” [Source: Ars Technica] You can be certain that other such communications providers, for example AT&T do the same. Perhaps that Garmin GPS travel device in your vehicle can provide the same information to other companies as well.

And here: Did Sprint violate customer privacy 8 million times?

The Fourth Amendment and Email

Podcast: The Fourth Amendment and Email on the D. Ore. opinion released on October with Orin S. Kerr , Professor of Law at the George Washington University Law School and Jason Paroff Esq., Director of Computer Forensics Operations with the ESI Consulting practice at Kroll Ontrack.

Fourth Amendment protecting the innocent? and Ord

Recent case shows why the Fourth Amendment is so important discussing Ord v. District of Columbia, posted today.

Boilerplate motion to suppress should be denied for failing to specify what was illegally seized and how. This search was by search warrant and it was presumptively valid. United States v. Jones, 2009 U.S. Dist. LEXIS 112286 (D. Minn. October 30, 2009):

Moreover, the Defendant has not identified the evidence, that was secured by the Search Warrant, should be suppressed, nor has he offered any factual or legal grounds for suppression. Having so failed to satisfy his burden of production, we recommend denying his Motion to Suppress on that basis alone. See, e.g., United States v. Mims, 812 F.2d 1068, 1074 (8th Cir. 1987) (On a Motion to Suppress telephonic interceptions, the defendant's failure to "assert what may have been wrong with the interceptions, or in fact, even what interceptions that he [was] concerned with," justified the District Court's decision to deny the Motion without the conduct of an Evidentiary Hearing); see also, United States v. Quiroz, 57 F. Supp.2d 805, 822-23 (D. Minn. 1999) ("boilerplate motion" to suppress statements denied due to failure to satisfy specificity requirement). Nonetheless, in an abundance of caution, we proceed with addressing the merits of the Defendant's Motion by considering the probable cause detailed in the Warrant's supporting papers, and by examining for any other fatal deficiencies in the Warrant. See, United States v. Edwards, supra at 995. As we detail below, no basis to suppress the evidence obtained by the warranted search and seizure has been established, and therefore, we recommend that Jones' Motion to Suppress be denied.

Defendant failed to show that the SW was issued without probable cause. The reference in the motion to timeliness was apparently boilerplate, and it was rejected as well. United States v. Brooks, 2007 U.S. Dist. LEXIS 98921 (E.D. Tenn. November 29, 2007).*

SW for a particular room in a motel was constitutionally sufficient. [Why argue this?] United States v. Patterson, 2007 U.S. Dist. LEXIS 98923 (N.D. Ga. June 27, 2007).*

Where defendant was admittedly lawfully stopped for speeding, being “asked” out of the car was not a separate seizure requiring more cause. It was valid under Mimms. United States v. McChesney, 2009 U.S. Dist. LEXIS 112197 (N.D. Ind. December 2, 2009):

The Defendant argues that Officer Hatfield impermissibly started a new seizure by asking him to exit the vehicle and commencing an investigation that was unrelated to the traffic stop. In other words, the Defendant asks the Court to break up the encounter into two or more different seizures, and apply a separate analysis to each. However, the Seventh Circuit has rejected this sort of multiple seizure analysis in favor of an overarching analysis that takes into account the traffic stop as a whole. In United States v. Figueroa-Espana, the defendant argued that once his traffic stop had been completed, any additional investigation by the police officer qualified as an improper second encounter, and any evidence produced therefrom should be excluded. The Seventh Circuit declined to adopt that framework and held that "[t]he fact that the troopers sought further information [unrelated to the traffic stop] does not render this second phase of questions a new seizure .... Rather, the events ... are more appropriately analyzed as ... an extension of the initial stop based on reasonable suspicion." 511 F.3d 696, 702 (7th Cir. 2007) (citing United States v. Rivera, 906 F.2d 322-23 (7th Cir. 1990) (finding that an officer's request to search a car, after giving the motorist a written warning, returning his identification, and indicating that he was free to leave, was part of a consensual encounter and not a new seizure)).

“Given that the stop was proper, Trooper Rindlisbacher did not violate the Fourth Amendment by conducting a license and registration check. See U.S. v. Chavez-Valenzuela, 268 F.3d 719, 724 (9th Cir. 2001), amended 279 F.3d 1062 (9th Cir. 2002). Thus, he properly discovered that none of the occupants in the vehicle owned the car or had a valid driver's license.” The search of defendant’s purse was not invalid. She was allowed to go, but the ride she called had not arrived, and the officer wasn’t going to wait around any longer, so he searched her purse by consent before she got in the car so he could drive her. [The video of the stop supported it.] United States v. Rojas, 2009 U.S. Dist. LEXIS 112346 (D. Idaho December 2, 2009).*

Detention of defendant who was on foot to get his ID to run his information was an unreasonable detention without reasonable suspicion. State v. Montano, 2009 NMCA 130, 223 P.3d 376 (2009).*

[*1] Defendant Ray Anthony Montano asserts that the district court erred in refusing to suppress drug-related evidence obtained from his person in a search incident to his arrest. Neither the record of the hearing nor the suppression order shows specific grounds for denial. The issue is whether the police officer's actions in stopping and questioning Defendant, who was on foot, and then obtaining Defendant's identification and running it through dispatch constituted an unlawful investigatory detention. The State acknowledges that the officer did not have reasonable suspicion of criminal activity up to the point that dispatch informed the officer of an outstanding warrant. The State's position is that the circumstances constituted either a consensual community caretaker encounter excluded from the Fourth Amendment to the United States Constitution or a community caretaker encounter that was subject to, but reasonable under, the Fourth Amendment.

[*2] We hold under the Fourth Amendment that what started out as either a consensual or non-consensual community caretaker encounter became an unlawful investigatory detention. We therefore reverse the district court's denial of Defendant's motion to suppress the evidence obtained by the officer after the search incident to Defendant's arrest on the outstanding warrant.

Owner could validly consent to a search against a guest under Randolph. Testa v. Commonwealth, 55 Va. App. 275, 685 S.E.2d 213 (2009):

Randolph involved the application of the exclusionary rule to "a warrantless search of a shared dwelling" for evidence of a crime. Id. at 120 (emphasis added); see also id. at 119 (noting that the majority was "recognizing limits on merely evidentiary searches"); id. at 122 (limiting issue to situation involving an "express refusal of consent to a police search"). Here, the deputies did not search Griffin's home. They simply entered it with the owner's permission, walked into the common hallway at the owner's invitation, and remained there throughout with the owner's approval. 2 Testa was not a co-owner, renter, or boarding house tenant. He simply occupied a bedroom in his stepfather's home. Nothing in Randolph suggests that a live-in guest of a homeowner can veto the owner's right to invite anyone he may choose (whether police officers or anyone else) to accompany him into the common areas of his own home. See id. at 114 (explaining that Fourth Amendment privacy analysis takes into account any "recognized hierarchy" between the consenter and objector).

n.2 Because of our holding, we need not decide whether Testa's guttural outburst ("Go fuck yourself") can be analogized to the statements of the co-owner in Randolph who "unequivocally refused" when the officers asked for consent to search his home. Id. at 107.

A police safety checkpoint set up for no apparent reason was unreasonable. State v. Sigler, 224 W. Va. 608, 687 S.E.2d 391 (2009):

We hold that a stop of a motor vehicle at a police checkpoint such as the stoppage here is intrusive to private citizens. Such an intrusion is by its constitutional nature a seizure. As in Brown, in evaluating the lawfulness of a suspicionless seizure such as here, we believe that a balancing of interests should be considered to determine if such a seizure is permissible under the United States Constitution and the Constitution of West Virginia and these factors should be considered: (1) the gravity of the public concern that is being addressed or served by the checkpoint; (2) the degree to which the checkpoint is likely to succeed in serving this public interest; and (3) the severity with which the checkpoint interferes with individual liberty. When evaluating the degree of severity of interference with individual liberty, West Virginia courts must consider not only the subjective intrusion determined by the potential of the checkpoint to generate fear and surprise in motorists, but also the objective intrusion into individual freedom as measured by the duration of the detention at the checkpoint and the intensity of the inspection. The court's obligation in weighing these factors is to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.

In conclusion, suspicionless checkpoint roadblocks are constitutional in West Virginia only when conducted in a random and non-discriminatory manner within predetermined written operation guidelines which minimize the State's intrusion into the freedom of the individual and which strictly limits the discretion vested in police officers at the scene. The checkpoints utilized by law enforcement herein were improper and any evidence derived therefrom should have been suppressed.

False statement from a CI in a SW affidavit made the search warrant subject to suppression. The GFE does not apply in Pennsylvania. Commonwealth v. Antoszyk, 2009 PA Super 232, 985 A.2d 975 (Pa. Super. 2009):

Because the good-faith exception to the exclusionary rule does not apply in Pennsylvania, we hold that the trial court properly suppressed the evidence obtained solely through the deliberate misstatements the informant admittedly made to the affiant. In so holding, we conclude that this Court's decision in Commonwealth v. Bradshaw, 290 Pa. Super. 162, 434 A.2d 181 (Pa. Super. 1981), was abrogated by the Pennsylvania Supreme Court's decision in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), and we adopt the lead opinion from this Court's decision in Commonwealth v. Clark, 412 Pa. Super. 92, 602 A.2d 1323 (Pa. Super. 1992) (plurality). Accordingly, we affirm.

Defendant was seized and would not have felt free to terminate the encounter when the lights of the police car were in his face and all occupants of the car were asked for their IDs. Commonwealth v. Au, 2009 PA Super 231, 986 A.2d 864 (2009).*

Inevitable discovery supported search of defendant’s car left on the side of the road that could have been towed for safekeeping. Commonwealth v. Bailey, 2009 PA Super 230, 986 A.2d 860 (2009).*

Defendant won his search issue on the state law nighttime search law when being prosecuted for child sexual abuse; Kelley v. State, 371 Ark. 599, 269 S.W.3d 326 (2007); but lost in federal court in his child porn case because there is no separate federal nighttime search rule. [He was convicted on retrial and affirmed. Kelley v. State, 2009 Ark. 389, 2009 WL 1819336 (2009).] Moreover, defendant was not present at the time of the search, so he could not be prejudiced by the nighttime entry. Finally, the good faith exception sustains the search. United States v. Kelley, 670 F. Supp. 2d 943 (E.D. Ark. 2009):

Case law is sparse as to precisely what the Fourth Amendment requires be stated in an application for a warrant for a nighttime search. 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 4.7 (4th ed. 2004). The rationale for heightened scrutiny of nighttime searches was stated by Justice Marshall:

In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night. The idea of the police unnecessarily forcing their way into the homes in the middle of the night--frequently, in narcotics cases, without knocking and announcing their purpose--rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a "police state' lacking in the respect for ... the right of privacy dictated by the U.S. Constitution.' S. Rep. No. 91-538, p. 12 (1969).

Gooding v. United States, 416 U.S. 430, 462, 94 S. Ct. 1780, 1796, 40 L. Ed. 2d 250 (1974) (Marshall, J., dissenting). Here, no one was home when the search warrant was executed. No one was disturbed in the middle of the night. To the extent that Kelley's privacy was invaded by the search, that intrusion was no greater than if the warrant had been executed during daylight hours.

When a search is governed by Rule 41 of the Federal Rules of Criminal Procedure, the exclusionary rule applies only if the defendant is prejudiced in the sense that the search might not have occurred or would not have been so abrasive had proper procedures been followed, or if reckless disregard of proper procedure is evident. United States v. Harris, 324 F.3d 602, 606 (8th Cir. 2003); United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997); United States v. Bieri, 21 F.3d 811, 816 (8th Cir. 1994); United States v. Burgard, 551 F.2d 190, 193 (8th Cir. 1977); United States v. Burke, 517 F.2d 377, 386-87 (8th Cir. 1975). Although Rule 41 does not apply to this case, the Court will be guided by the Eighth Circuit cases addressing the issue of whether to apply the exclusionary rule when Rule 41 has been violated.

[Note: I wrote here a couple of years ago that I lost this same issue in the Eighth Circuit. Clear violation of nighttime search rule, motion to suppress filed, case nolle prossed, client promptly indicted federally.]

U.S. Park Police who observed empty beer bottles around a car had PC to believe the operator violated 36 C.F.R. § 4.14(b). Further examination revealed a cigar box with one missing and tobacco on the ground, and that was PC for drugs. United States v. Bowles, 2009 U.S. Dist. LEXIS 111618 (E.D. Va. November 30, 2009)*:

In the instant case, Officer Mace testified that his observation of empty beer bottles inside and outside the vehicle, a cigar box inside the vehicle missing one cigar, and tobacco fillings on the ground outside the vehicle gave him probable cause to believe that a crime had been committed and that Bowles had been involved in the crime. Specifically, Officer Mace testified that the empty beer bottles in and around the vehicle gave him probable cause to believe that Bowles had violated 36 C.F.R. 4.14(b) and that the tobacco fillings outside the vehicle and box of cigars missing one cigar inside the vehicle gave him probable cause to believe that Bowles had violated 21 U.S.C. 844.

Second search of defendant’s property finding child porn was with consent and was validly used to enhance his sentence. He first objected, but then he withdrew the consent. United States v. Cottle, 355 Fed. Appx. 18, 2009 FED App. 0755N (6th Cir. 2009) (unpublished).*

Seventh Circuit declines to join the split on whether a person not on a rental contract has “standing” [n. 2; a word it notes the Supreme Court does not use anymore] because there was cause for the search no matter what. United States v. Brown, 355 Fed. Appx. 36 (7th Cir. 2009) (unpublished).*

During a knock and talk, defendant let officers into his house, and marijuana was in plain view. He consented to a further search of the basement finding more than 100 plants. United States v. Wise, 588 F.3d 531 (8th Cir. 2009), affg United States v. Wise, 2008 U.S. Dist. LEXIS 62966 (E.D. Mo., Aug. 18, 2008).*

District court did not err in finding that the search of defendant’s car for which there was PC to believe was involved in a robbery of a cocaine stash house was reasonable as an impoundment. [It also appears to be valid as an automobile exception search.] United States v. Ulloa, 355 Fed. Appx. 286 (11th Cir. 2009) (unpublished), cert. den. 2010 U.S. LEXIS 3053 (U.S., Apr. 5, 2010).*

Not a Fourth Amendment case, but interesting: A Navy regulation requires disclosure of civil drug and alcohol arrests. Defendant’s compelled report could not be used against him under the Fifth Amendment under Kastigar. United States v. Serianne, 68 M.J. 580 (N.-M. Ct. Crim. App. 2009).*

On Talking Points Memo: Police Tapped Sprint Customer GPS Data 8 Million Times In A Year. On Akron Law Cafe, How Private Is GPS Data?, it is noted that Sprint essentially admits the practice. The Akron article has links to other materials.

What is your "reasonable expectation of privacy" when you are carrying a tracking device? Reason enough to change from Sprint? Or, will every cell provider be doing it?

The DEA was surveilling an arrival at DFW who flew in to make a $1M cocaine deal with an undercover officer. The officers arrested two guys and they flipped. The arrest of the third was with PC and permitted a warrantless exigent entry into the motel room. United States v. Timoteo, 353 Fed. Appx. 968 (5th Cir. 2009) (unpublished):

The issue is whether the agents' warrantless entry into the hotel room and arrest of Timoteo were supported by exigent circumstances. Even if the agents had probable cause to arrest Timoteo, they had to have exigent circumstances to enter the hotel room. See Richard, 994 F.2d at 247. The circumstances, viewed objectively, must justify the action taken. Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978) (noting the "standard of objective reasonableness"); Ohio v. Robinette, 519 U.S. 33, 38, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.") (quotation omitted). However, "[i]f reasonable minds could differ, we will not second-guess the judgment of experienced law enforcement officers concerning the risks of a particular situation." United States v. Hearn, 563 F.3d 95, 106 (5th Cir. 2009) (quotation omitted).

The district court found that, after the arrest of Miliaris, "the officers did not know if others had seen the arrests and, if so, whether the others were armed, in flight, or destroying evidence." Since the agents knew that the driver of the Hyundai had entered the hotel and that he was not the man who came out when the agents called the room, they knew that someone else was also in the hotel room. It was reasonable for the agents to believe that this man, alarmed when Miliaris did not return, would barricade himself in the hotel room with a firearm, potentially endangering the agents and other hotel guests; attempt to destroy evidence; or attempt to flee the scene. The district court's finding that exigent circumstances justified the warrantless entry was not clear error.

[posted 12/5]

IP address was sufficiently linked to defendant’s home to support nexus for a search warrant for his computer. While it was not exclusively his, it was otherwise linked to him and it was the most common one used by defendant. United States v. Kearney, 2009 U.S. Dist. LEXIS 110976 (D. Minn. November 30, 2009):

Third, and most crucially, the affidavit links defendant's "ownership" of IP address 68.116.165.4 on May 20 to 22, 2008, to the Internet persona padraigh8 and the associated Yahoo! and MySpace accounts. Although there is no averment in the affidavit that the subject IP address belonged to defendant on the dates of the alleged chats between padriagh8 and "Julie," the affidavit provides probable cause to believe that defendant accessed padriagh8's Yahoo! and MySpace accounts on May 21 and 22, 2008. Paragraph 18 of the affidavit states: "[P]adriagh8 accessed his [Yahoo!] account 288 times utilizing IP protocol address 68.116.165.4 between 4/7/08 and 5/21/08." (Id. P 18 (emphasis added)). Paragraph 17 states: "IP log records from MySpace show that the user signed onto this MySpace account from IP address 68.116.165.4 multiple times between 8/23/07 and 5/22/08". (Id. P 17 (emphasis added)). A fair reading of these statements is that, as of the date of the subpoenas, the Yahoo! and MySpace accounts had last been accessed by IP address 68.116.165.4 on May 21 and 22, 2008, respectively. Had the accounts last been accessed on some earlier dates, those earlier dates would have appeared in the affidavit in place of "5/21/08" in paragraph 18 and "5/22/08" in paragraph 17. 12 And because there is no dispute that IP address 68.116.165.4 belonged to defendant and was registered to 11 Morgan Drive, North Grafton, Massachusetts, on May 21 and 22, the affidavit fairly connects defendant to the screen name padriagh8 and the associated Yahoo! and MySpace accounts.

“Wide ranging” fraud in defendant’s medical practice justified a broad search warrant for records. United States v. Poulin, 671 F. Supp. 2d 822 (E.D. Va. 2009).*

The defendant was found to have consented to a search of his hotel room for drugs, and a search for drugs can go anywhere drugs could be found. A locked safe was found, and defendant refused to consent to opening it, so officers got a search warrant for it. United States v. Rios, 2009 U.S. Dist. LEXIS 111099 (M.D. Fla. November 4, 2009),* adopted United States v. Rios, 2009 U.S. Dist. LEXIS 111118 (M.D. Fla. November 30, 2009).*

A vehicle that was already impounded did not need a search warrant to be searched after the officer discovered a probable altered gas tank and used a fiber optic scope to look inside it, finding marijuana. Lopez v. State, 2009 Ark. App. 750, 2009 Ark. App. LEXIS 958 (November 11, 2009).*

CI of pseudo purchases was corroborated by checking area pharmacies for purchases and checking defendant's criminal history, which found drug cases. State v. Gipson, 2009 Ohio 6234, 2009 Ohio App. LEXIS 5237 (3d Dist. November 30, 2009).*

Defendant’s stop was with a factual basis for not having a temporary vehicle license, despite the Attorney General’s concession that the stop was invalid and the exclusionary rule applied. People v. Dotson, 179 Cal. App. 4th 1045, 101 Cal. Rptr. 3d 897 (3d Dist. 2009).*

Defendant’s stop was without RS. There was no criminal activity apparently afoot, and there was no testimony before the trial court that this was a high crime area. The officer just concluded that defendant did not belong there. Derichsweiler v. State, 301 S.W.3d 803 (Tex. App. — Ft. Worth 2009).*

LA: There is a federal reasonable expectation of privacy in one's drug prescription records requiring a search warrant for access. State v. Skinner, 2009 La. LEXIS 3263 (May 5, 2009) [just on Lexis]:

More importantly, the Court's decision holding the regulatory scheme was not facially unconstitutional was explicitly based upon the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, Whalen, 429 U.S. at 604, 97 S.Ct. at 878; the Court explicitly distinguished Fourth Amendment privacy interests from Fourteenth Amendment privacy interests. Whalen, 429 U.S. at 598 n.23, 97 S.Ct. at 876; 429 U.S. at 599 n. 24, 97 S.Ct. at 876. The Court noted that the right of the individual to be free in his private affairs from governmental surveillance and intrusion is a constitutional right directly protected by the Fourth Amendment. Whalen, 429 U.S. at 600 n.24, 97 S.Ct. at 876. In response to the Roe plaintiffs' argument that their Fourth Amendment privacy interest was invaded by New York's regulatory statute, the Court explicitly declined to extend the Fourth Amendment's privacy interest to that situation which did not involve "affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal investigations." Whalen, 429 U.S. at 604 n.32, 97 S.Ct. at 878.

A majority of the federal Circuit Courts of Appeals have concluded the constitutional right to privacy extends to medical and/or prescription records. Douglas v. Dobbs, 419 F.3d 1097, 1102 (10th Cir. 2005) (constitutional right to privacy in prescription drug records), cert denied, 546 U.S. 1138, 126 S.Ct. 1147, 163 L.Ed.2d 1001 (2006); Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000), cert, denied, 534 U.S. 840, 122 S. Ct. 96, 151 L. Ed. 2d 56 (2001); Doe v. Southeastern Pennsylvania Trans. Auth., 72 F.3d 1133, 1137 (3d Cir. 1995), cert, denied, 519 U.S. 808, 117 S. Ct. 51, 136 L. Ed. 2d 15 (1996) ; Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995); Doe v. New York, 15 F.3d 264, 267 (2d Cir. 1994); Doe v. Attorney General of the United States, 941 F.2d 780, 795-796 (9th Cir. 1991), vacated on other grounds sub nom. Reno v. Doe, 518 U.S. 1014, 116 S.Ct. 2543, 135 L.Ed.2d 1064 (1996); see also Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir. 1991)(assuming such right exists). Contra Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir. 1995) (holding that constitutional right of privacy does not apply to medical records). As noted by the United States Tenth Circuit Court of Appeals, information contained in prescription records may not only reveal facts about what illnesses a person has, but may reveal information relating to procreation, such as fertility medication or contraceptives. Douglas, 419 F.3d at 1102.

We are cognizant that the issue of whether a warrant is required to conduct an investigatory search of prescription records, in contrast to the regulatory disclosures at issue in Whalen, is one that has not been settled. Douglas v. Dobbs, 419 F.3d 1097, 1103 (10th Cir. 2005). Nevertheless, we do not find that Whalen's upholding of a regulatory scheme for the monitoring of prescriptions for controlled substances diminishes a person's Fourth Amendment privacy interest to permit warrantless governmental intrusion during the course of a criminal investigation.

Considering the federal jurisprudence and Louisiana's constitutional requirement of a heightened privacy interest for its citizens, we find that the right to privacy in one's medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable. Therefore, absent the narrowly drawn exceptions permitting warrantless searches, we hold a warrant is required to conduct an investigatory search of medical and/or prescription records. We are not prepared to extend Whalen, which balanced the individual's privacy interest against the state's reasonable exercise of its regulatory power, to find Louisiana allows warrantless searches and seizures of its citizens' medical and pharmacy records for criminal investigative purposes.

FL1 holds that any privacy interest in records is not sufficient to require suppression of a statutory request for production of pharmacy records. HIPAA is not a bar either. State v. Carter, 2009 Fla. App. LEXIS 18194 (Fla. App. 1st DCA November 30, 2009):

Finally, article I, section 23 of the Florida Constitution does not support the suppression order on appeal. Patients right to privacy in their medical records is not absolute. Such privacy rights "Will yield to compelling government interests and "the control and prosecution of criminal activity is a compelling state interest. State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). Regulation of the sale and distribution of dangerous drugs has been recognized as a "vital interest of the state. Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977). Other jurisdictions with statutes similar to section 893.07, Florida Statutes, have uniformly held that persons filling prescriptions for controlled substances have "a limited expectation of privacy in pharmacy records. Murphy v. State, 115 Wn. App. 297, 62 P. 3d 533, 539 (Wash. Ct. App. 2003); see also State v. Russo, 259 Conn. 436, 790 A. 2d 1132 (Conn. 2002) (warrantless seizure of pharmacy records valid due to statutory provision for same); State v. Welch, 160 Vt. 70, 624 A.2d 1105 (Vt. 1992) (warrantless survey of pharmacy records authorized by statute). In an appeal of administrative proceedings against a licensed oral surgeon for improperly prescribing controlled substances, Florida's Third District Court of Appeal held that the surgeon "had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy and was thus precluded from challenging the warrantless search of the pharmacy's records. Cushing v. Dep't of Prof'l Regulation, 416 So. 2d 1197, 1198 (Fla. 3d DCA 1982) (search pursuant to 893.07(4), Fla. Stat.). In Cushing, the Court concluded: "we regard as frivolous the appellant's argument that the result as to either the search or the evidentiary issue is changed or even affected by the right of privacy provision of the Florida Constitution. Article I, Section 23, Florida Constitution (1980). Id.

The USMJ finds that the officer in this case was not credible when he testified that he smelled the strong odor of burnt marijuana when he stopped the defendant’s car. Based on all the factors, analyzed by the court, the content of police reports, the videotape of the stop, and the contemporaneous radio reports, the testimony is just not believable. United States v. Dolson, 673 F. Supp. 2d 842 (D. Minn. 2009).* In the overall scheme of things, this case is not citable for any proposition of law, but it is instructive to defense counsel:

Each of the aforementioned inconsistencies and mischaracterizations, viewed in isolation, might not undermine Trooper Engum's credibility. Viewed as a whole, however, they demonstrate that Trooper Engum has -- whether deliberately or unintentionally -- shaded the facts surrounding the traffic stop in a way that would make the search and seizure less constitutionally suspect than it in fact was. Cf. United States v. Portmann, 207 F.3d 1032, 1033 (8th Cir. 2000) (per curiam). Therefore, the Court makes the following additional factual findings regarding Trooper Engum's testimony.

The Court concludes that during Trooper Engum's first contact with the Suburban, he did not smell a strong odor of burnt marijuana and he intended only to ticket Dolson for failing to place the children in child restraints. Trooper Engum offered no credible explanation for the inconsistency between the purported odor of marijuana and his conduct and statements to the Task Force when he first returned to the squad car. See United States v. Hatcher, 275 F.3d 689, 692 (8th Cir. 2001) (per curiam). The Court concludes that Trooper Engum's references to the odor of marijuana were a pretext for prolonging the stop and for questioning Dolson about drugs.

The Court concludes that the vehicle registration issue did not cause or justify any delay, because Trooper Engum was aware of and investigated the issue during his first contact with the vehicle. Trooper Engum's testimony to the contrary appears to be a post-hoc attempt to justify his delay in calling for a canine unit. The Court concludes that the actual reason Trooper Engum delayed calling for a canine unit was because Trooper Engum did not smell a strong odor of burnt marijuana during his initial contact with the vehicle, and therefore he had no reason to call for a canine unit.

The Court concludes that Trooper Engum was justifiably concerned that Dolson might be armed after he removed Dolson from the vehicle. Nonetheless, after careful review of the videorecording, the Court concludes that Dolson never refused Trooper Engum's directions to place his hands on the hood of the squad car and never conducted himself in a way that manifested any physical threat to Trooper Engum. Trooper Engum's testimony to the contrary constitutes an effort to justify his decision to unholster his sidearm.

. . .

The Court concludes that Trooper Engum exaggerated Dolson's alleged willingness to sit in the back of the squad car. This exaggeration constitutes an effort to characterize the circumstances of Trooper Engum's questioning of Dolson after the pat-down as non-custodial.

The Court concludes that Trooper Engum repeatedly mischaracterized when he questioned Dolson about the last time someone smoked marijuana in the Suburban. In so doing, Trooper Engum attempted to render that question non-custodial. Trooper Engum also repeatedly mischaracterized Dolson's response to the question in a way that would corroborate Trooper Engum's testimony that he smelled a strong odor of burnt marijuana coming from the vehicle.

The Court concludes that Trooper Engum's testimony about the canine sniff of the vehicle exterior is inconsistent with the videorecording and with the canine handler's report. Trooper Engum's testimony represents an effort to present evidence corroborating his claim that he smelled a strong odor of burnt marijuana during his first contact with the vehicle. Trooper Engum's testimony about the importance of the canine allegedly indicating on the exterior of the vehicle also undermines the credibility of his proffered justification for searching the interior of the vehicle.

The Court concludes that Trooper Engum's statement to Dolson informing him that he was not under arrest amounts to a post-hoc attempt to render the interrogation non-custodial.

The government showed probable cause for the search warrant for defendant’s computer at a business based on tips from two CIs that included a reference to defendant traveling to the Philippines where he allegedly obtained child pornography and the State Department confirmed his travel there and the CIs having seen child porn on defendant’s computer. It was not required that the specific sex acts be described. United States v. Pavulak, 672 F. Supp. 2d 622 (D. Del. 2009):

With respect to defendant's contention that the descriptions of the images were insufficient to establish probable cause that defendant was violating state child pornography laws because there are no allegations of nudity, sexual contact, or lascivious exhibition of the genitals or pubic area, the court finds that the totality of the circumstances still provided a substantial basis for the judge's finding of probable cause. United States v. Dennington, No. 01:07CR43, 2009 WL 2591763, at *21 - 22 (W.D. Pa. Aug. 21, 2009) (court found agent's affidavit when "read in a holistic, practical and non-technical manner" provided a substantial basis for the magistrate's determination that there was probable cause to believe there was pornographic material on defendant's computer).

Government overlooked defendant passenger's argument that his stop and the subsequent plain view violated his rights, too, under Brendlin. "Few things are clearer about Fourth Amendment doctrine than this: the passenger of a motor vehicle has standing to challenge the constitutionality of the stop of that vehicle by the police. See United States v. Ross, 280 F. App'x 947, 948 (11th Cir. 2008) (citing Brendlin). Defendant clearly mounts such a challenge in this case. The government's no-standing argument is utterly bogus." On the merits, however, "The Court is persuaded that, under the particular circumstances of this case, Officer Fletcher was entitled to stop the subject vehicle in order to investigate his suspicions that its occupants had just committed a crime, or perhaps had witnessed criminal activity." Therefore, the plain view was valid, and the motion to suppress is denied. United States v. Bradley, 2009 U.S. Dist. LEXIS 110732 (S.D. Ga. November 5, 2009).*

Excessive and unnecessary destruction of property during execution of a search warrant states a claim for relief. Pacific Marine Ctr., Inc. v. Silva, 2009 U.S. Dist. LEXIS 110617 (E.D. Cal. November 30, 2009):

"[O]fficers executing search warrants on occasion must damage property in order to perform their duty." Dalia v. United States, 441 U.S. 238, 99 S.Ct 1682, 60 L. Ed. 2d 177 (1979). "Destruction of property that is not reasonably necessary to effectively execute a search warrant may violate the Fourth Amendment." Tarpley v. Greene, 684 F.2d 1, 221 U.S. App. D.C. 227 (D.C. Cir. 1982). "The general touchstone of reasonableness which governs Fourth Amendment analysis, … governs the method of execution of [a search] warrant. Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search not subject to suppression." U.S. v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998) ("[e]xcessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful."); See Liston v. County of Riverside, 120 F.3d 965, 979 (9th Cir. 1997) ("only unnecessarily destructive behavior, beyond that necessary to execute a warrant effectively, violates the Fourth Amendment"). "An officer's conduct in executing a search is subject to the Fourth Amendment's mandate of reasonableness from the moment of the officer's entry until the moment of departure." San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 971 (9th Cir.), cert denied, 546 U.S. 1061, 126 S. Ct. 796, 163 L. Ed. 2d 627 (2005). Therefore, the touchstone of conduct during a search is "reasonableness."

Plaintiffs have alleged conduct which may go beyond "reasonableness" to execute the warrant. Plaintiffs have adequately plead that defendant Essegian unnecessarily destroyed property during the search. Plaintiff alleges that the business was "ransacked" and all of the business documents were thrown about the business premises, and the surveillance equipment was ripped from the wall. In his motion, Essegian asks the Court to make factual determinations that Essegian was justified in doing the things alleged in the complaint as part of the scope of the search. Whether the conduct was necessary to effectively execute the search warrant is a factual question which cannot be determined at this point of the litigation. At this stage of the pleadings, the Court must accept as true the allegations of the complaint and construe the pleading in the light most favorable to plaintiffs. Lazy Y. Ranch LTD v. Behrens, 546 F.3d at 588.

More Safford

Safford Unified School District No. 1 v. Redding is noted in Harvard Law Review.

Community Caretaking Function in Wisconsin

In the Wisconsin State Bar journal: Wisconsin Supreme Court to consider reach of police ‘community caretaker’ as warrant exception, about State v. Pinkard, set for oral argument January 7.

Brignoni-Ponce on roving border patrols applies virtually “anywhere” near the border. Applying Brignoni-Ponce does not violate equal protection even if ethnicity is a basis for the stop near the Mexican border. Here, RS developed for the stop when the Border Patrol officer pulled on to the highway to follow, four of the six passengers in the vehicle had apparently ducked down to hide, and that supported the stop. United States v. Hernandez-Moya, 353 Fed. Appx. 930 (5th Cir. 2009) (unpublished).

Defendant’s traffic stop was not unreasonably extended because reasonable suspicion had developed. The driver’s story was suspect in itself, but the passenger’s story and actions made reasonable suspicion, so the request for consent came within a reasonable time. United States v. Pena-Ponce, 588 F.3d 579 (8th Cir. 2009).*

Because defendant storing his duffle bag at a friend’s apartment told the friend what was in it and permitted access, he had no reasonable expectation of privacy in the bag. This distinguishes United States v. Waller, 426 F.3d 838 (6th Cir. 2005), involving suitcases left with a friend where that defendant did retain a reasonable expectation of privacy. United States v. Grantham, 2009 U.S. Dist. LEXIS 110372 (W.D. Ky. November 25, 2009).

Defendant’s frisk revealed a crack pipe which was obvious from plain feel, since the officer knew a crack pipe when he felt it, having seized hundreds. The search incident of the car was limited and reasonable, and it did not have to stop when the first contraband was found. United States v. Bradford, 2009 U.S. Dist. LEXIS 110385 (E.D. Wis. November 5, 2009):

In the present case, as the magistrate judge explained, defendant was arrested for possession of drug paraphernalia (not a traffic offense), making it reasonable for the officer to search the car for drugs. Further, once the officer found the bullet, it was reasonable for him to look for a gun. Cf. Gant, 129 S. Ct. at 1721 (noting that under United States v. Ross, 456 U.S. 798, 820-821 (1982), police may, based on probable cause that a vehicle contains evidence of criminal activity, search any area of the vehicle in which the evidence might be found, and that Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader).

Defendant argues that Koestering should have stopped his search after he found the crack cocaine on the front passenger seat, but nothing in Gant suggests that a permissible search incident to arrest must stop as soon as any contraband is found. Nor does the record show that Koestering searched areas of the car where evidence of the offense of arrest could not be located. Defendant suggests that Koestering "ransacked" the car, but the record does not support that contention either. As discussed above, Koestering moved the front seat in order to check the back for more drugs, at which point he saw the bullet. He then looked under the front driver's seat and saw the gun. Far from a ransacking, this was a limited search, fully justified by the circumstances.

Defendant alien’s fingerprinting was incidental to his removal on his admission he was an illegal, and it was not suppressed. United States v. Guijon-Ortiz, 2009 U.S. Dist. LEXIS 110505 (S.D. W.Va. November 25, 2009)*:

Based upon the entirety of the findings of fact set forth heretofore, the court is satisfied that the 10 minutes of questioning of defendant along the lines set out in Government Exhibit 2, and the taking of his fingerprints, fit within the booking exception. The evidence was obtained for, and was motivated solely by, the administrative purpose of removal, including the reinstatement of the defendant's prior order of deportation. It is important to note as well that at the time of the road side encounter ICE was on notice, via defendant's admission, that he did not possess papers showing he was in the United States legally. Hilton's observations on the point are also noteworthy. He is unchallenged in asserting that illegal reentry cases are generally pursued administratively rather than criminally.

A search warrant was issued for alleged rioters and served by the Joint Terrorism Task Force. After execution, the court issued a TRO on the petitioners' motion the next day to prevent the government from looking at what was seized until a hearing because of First Amendment concerns. The TRO had been set aside, and a special master was not appointed. Preindictment litigation of the search is possible under Rule 41(g). In re Madison, 687 F. Supp. 2d 103 (E.D. N.Y. November 10, 2009):

The threshold issue, raised by the government and ignored by petitioners, is whether the court should rule on petitioners' Rule 41(g) motion prior to indictment absent a showing of irreparable harm. As the government points out, courts have held that, in the absence of a showing of irreparable harm, a decision on a Rule 41(g) motion should be deferred until after an indictment has issued. See, e.g., United States v. Douleh, 220 F.R.D. 391, 397 (W.D.N.Y. 2003).

Under the version of Rule 41 in effect from 1944 to 1989, granting a motion for the return of property required the suppression of that property at any subsequent hearing or trial. See Doane v. United States, No. 08 Mag. 0017 (HBP), 2009 WL 1619642, at *7 (S.D.N.Y. June 5, 2009) (citing FED. R. CRIM. P. 41(e) (1989)). Therefore, under the old version of the Rule, granting the motion pre-indictment would have had the effect of suppressing evidence before the grand jury in derogation of the holding in United States v. Calandra, 414 U.S. 338 (1973). See Doane, 2009 WL 1619642, at *7 ("The principal reason offered by these courts [*11] for engrafting an irreparable harm requirement onto the language of Rule 41(e) was that a pre-indictment suppression motion would unduly interfere with the function of the grand jury."). "As a result, many courts deferred pre-indictment Rule 41(e) motions unless a movant could show (1) the search was illegal, (2) that he is without an adequate remedy at law, and (3) that he would suffer some irreparable injury if relief is not granted." Id. (citations ommitted).

Rule 41 was amended in 1989 to provide that "[i]f the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings." Id. (quoting FED. R. CRIM. P. 41(g)). This change was intended to "(1) keep pace with new developments in the exclusionary rule allowing the Government to retain and utilize unlawfully seized evidence in certain circumstances (i.e. grand jury proceedings) and (2) achieve a more equitable balance between the Government's law enforcement interest and the property rights of owners." Id. Thus, as a result of the new language of Rule 41, granting a pre-indictment motion for the return of property no longer inevitably results in the suppression of the property in subsequent proceedings. Moreover, in light of the reasonable conditions that may be imposed to preserve the use of the property, the government's conclusory assertion that consideration of this motion at this juncture would interfere with the grand jury investigation is unavailing. Accordingly, petitioners need not establish irreparable harm for the court to consider their motions at this time.